13 Fla. L. Weekly Supp. 288a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where sworn evidence establishes that EUO notice was sent to insured, and there is no sworn evidence disputing that notice was sent or establishing that notice was not received, receipt of notice is presumed — No merit to argument that insured was not required to attend EUO because denial of benefits letter was sent before EUO was requested where bill at issue was not sent to insurer until after EUO was requested — Further, where EUO was scheduled for same month as disputed bill was received, there is no violation of 30-day deadline to investigate or pay claim — Anticipatory repudiation defense raised in motion for rehearing is not allowed where defense was not raised in pleadings, and further delay is not warranted — Insurer’s motion for summary judgment is granted
A-1 MOBILE MRI, (a/a/o Jacqueline Pessoa), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13764 COCE 53. December 21, 2005. Robert W. Lee, Judge. Counsel: Amir Fleischer, Fort Lauderdale, for Plaintiff. Wendy Brewster-Maroun, Coral Gables, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, and FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on December 12, 2005 for hearing of the Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background: In this PIP case, the insurer had raised as a defense that the claimant, who is the insured under the policy, failed to appear at a scheduled examination under oath (EUO). On February 9, 2005, the Defendant filed its Motion for Summary Judgment, which included an affidavit of Arian Alvarez, a litigation adjuster. In it, the adjuster stated that “[o]n or about December 16, 2002, Defendant United Auto requested that Jacqueline Pessoa submit to an EUO at United Auto’s offices, scheduling said EUO for January 8, 2003, or alternatively, January 15, 2003. United Auto mailed the Notice of Taking Examination Under Oath certified and regular mail to Ms. Pessoa.” The matter was heard before the Court on December 12, 2005.
At the hearing, it was undisputed that Pessoa did not attend the EUO. The Plaintiff raised three arguments as to why her failure to appear should not be dispositive. First, the Plaintiff argued that deposition testimony would reveal that Pessoa had attempted to reschedule the EUO. Second, the Plaintiff argued that even if she failed to appear, she should be excused because the insurer had already sent a letter declining benefits before it even requested the EUO. Finally, the Plaintiff argued that the Defendant had simply requested the EUO too late. The Court entered an Order giving the Plaintiff two days to supplement the record with a copy of deposition transcripts, which were subsequently provided.
In the deposition of Ximena Rodriguez, the claims adjuster acknowledged that United had notice of Pessoa’s accident by at least October 21, 2002 (Depo., p. 7, ll. 3-6). It further provided that the first medical bill came in on November 14, 2002 (Depo., p. 22, ll. 2-4), and that the EUO notice was sent out on December 16, 2002 (Depo., p. 15, ll. 14-16, l. 9). However, the bill at issue in the instant case was not received until January (Depo., p. 31, l. 18; p. 33, ll. 15-19). Finally, the adjuster testified that nothing in the claims file revealed that Pessoa had expressed any conflict with the dates provided for the EUO (Depo., p. 38, ll. 9-24).
The Plaintiff also provided a transcript of the deposition of Arian Alvarez, the litigation adjuster. His testimony established that the EUO notice was properly sent (Depo. p. 19, l. 19-p. 21, l. 23). The Plaintiff provided nothing of record to support its argument that Pessoa tried to reschedule the deposition.
Conclusions of Law: Under Florida law, an insured’s failure to “submit” to an independent medical examination or examination under oath required by an insurance policy “constitutes a material breach which bars recovery.” Goldman v. State Farm Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995). The appellate court further held that submission to the required examination is a condition precedent to suit. Id. at 304. In Goldman, the insureds failed to attend an examination under oath. Id. at 302. Under such a circumstance, the appellate court upheld a summary judgment in the insured’s favor. Id. at 306. The policy in the instant case contains a similar provision. Accordingly, if the undisputed facts in the instant case show that the insured failed to show for a properly requested EUO, the Defendant is entitled to summary judgment. Id. at 303.
The Plaintiff first argues that a disputed material fact exists whether the insured received notice of the EUO. The record, however, simply does not support this argument. The sworn evidence establishes that notice of the EUO was sent to the insured. No sworn evidence raises a dispute as to whether it was sent. The Plaintiff offered no sworn evidence that the notice was not received. As a result, its receipt is presumed.
Next, the Plaintiff argues that a denial letter was sent to the insured before the EUO was requested, rendering the insured’s attendance an exercise in futility. Even if the record supported this assertion concerning the denial letter, which the Court has been unable to locate in the record, the bill at question in the instant case was not sent by the Plaintiff until after this point.
Finally, the Plaintiff argues that the insurer was required to request the EUO within 30 days of notice of the claim, citing United Automobile Ins. Co. vs. Marucci, 12 Fla. L. Weekly Supp. 1037 (17th Cir. Ct. 2005). In this case, Judge Robert Rosenberg, sitting in an appellate capacity, ruled that “[u]nder Florida law, an insurer has thirty days from notice of receipt of a covered loss to investigate a claim and the insurer cannot extend the thirty day requirement by extending its investigation.” In the instant case, the claim at issue was not received by United until January 2003. The EUO was scheduled for the same month. There is therefore no violation of the 30-day rule. See Presgar Medical Imaging vs. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 875 (Miami-Dade Cty. Ct. 2005) (30-day period is triggered “after receipt of the bills from the insured’s medical provider”).
The Plaintiff has filed a “Motion to Rehear Summary Judgment, Continue Discovery/Opposition to Defendant’s Motion.” In it, the Plaintiff states that it would like to argue anticipatory repudiation in opposition to the Defendant’s EUO defense. The Court declines to consider this argument for several reasons. First, nowhere in its pleadings has the Plaintiff raised anticipatory repudiation as an avoidance to the EUO defense. Plaintiff’s Reply to Affirmative Defenses was filed more than one and a half years ago. Second, the Defendant’s Motion for Summary Judgment raising the EUO argument was served on the Plaintiff more than a year ago. Third, the Order Setting Pretrial Conference was entered more than two months before the summary judgment hearing. Moreover, the Court provided a brief continuance to allow the Plaintiff to supplement the record. Further delay under the circumstances set forth above is simply not warranted. There being no disputed material fact on the EUO defense, the Court finds pursuant to Goldman the EUO issue to be dispositive. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. The Plaintiff shall take nothing in this action, and the Defendant shall go hence without day. The Court reserves jurisdiction on the issue of costs and attorney’s fees.
