13 Fla. L. Weekly Supp. 364a
Insurance — Personal injury protection — Examination under oath — Insurer is entitled to summary judgment in suit filed by medical provider where insured willfully refused to comply with terms of policy requiring examination under oath as condition precedent to filing suit
A & L MEDICAL CENTER, a/a/o Gustavo Lopez, Plaintiff(s), vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-18326-CC-05, Section No. (02). July 7, 2005. Linda Dakis, Judge. Counsel: Mario Serralta, Mario Serralta & Associates, Miami, for Plaintiff. Gregory P. Hengber, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on defendant’s Motion for Summary Judgment and after reviewing the pleadings and hearing argument of counsel, the Court finds:
(1) Plaintiff, A & L MEDICAL CENTER a/a/o GUSTAVO LOPEZ, filed suit to recover Personal Injury Protection benefits for services1 rendered to GUSTAVO LOPEZ due to injuries received in his May 12, 2004 automobile accident. Lopez had executed an Assignment of Benefits in favor of the provider to provide standing.
(2) STATE FARM FIRE AND CASUALTY COMPANY issued an automobile insurance policy2 covering Lopez. This policy contained a provision requiring an Examination Under Oath.
(3) In an attempt to enforce this provision, STATE FARM, with the approval of plaintiff’s attorney, scheduled an Examination Under Oath for July 15, 2004. The Examination Under Oath never occurred despite five scheduled dates.3 The lawsuit was filed on November 2, 2004 after plaintiff’s counsel unilaterally cancelled the November 3, 2004 Examination Under Oath.
The policy herein is consistent in its declaration that an insured must appear, if requested, for an Examination Under Oath and suit cannot be brought unless all conditions precedent have been fulfilled. See Wright v. Life Insurance Company of Georgia, 762 So.2d 992, 993 (Fla. 4th DCA 2000). Courts have upheld policy provisions requiring an insured to appear for the Examination Under Oath prior to filing suit and the failure to comply constitutes material breach that creates a defense to coverage. Stringer v. Fireman’s Fund Insurance Company, 662 So.2d 145 (Fla. 3rd DCA 1993) and Willis v. Huff, 736 So. 2d 1272, 1273 (Fla. 4th DCA 1999). A third party seeking to collect benefits must ensure compliance by the insured to the policy’s terms and conditions or lose their rights under the policy. See Universal Medical Center Of South Florida v. Fortune Insurance Company, 761 So. 2d 386, 387 (Fla. 3d DCA 1997).
As pointed out in defendant’s memorandum, our facts are similar to those presented in Willis, supra at 1272, 1273. In that case, State Farm scheduled an Examination Under Oath which was reset at the request of insured’s counsel. Prior to the appearance, suit was filed. Pursuant to the dictates in Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300, 304-305 (Fla. 4th DCA 1995) and Willis,supra, the insured’s willful refusal to comply with a condition precedent to coverage, as well as a failure to satisfy a condition precedent to suit constituted a material breach of the policy, thereby voiding coverage.
There is nothing in the record to contradict that the Examination Under Oath was scheduled on five separate dates, at least three of these dates being changed by the provider’s attorney, and that Gustavo Lopez never appeared for the examination prior to suit. The cancellation of the November 3, 2004 appearance, the day before by plaintiff’s attorney, and the filing of the lawsuit on the very date the Examination Under Oath was to take place can be construed as nothing less than a willful refusal to comply with the policy terms.
Accordingly, the Court enters SUMMARY FINAL JUDGMENT in favor of the defendant STATE FARM FIRE AND CASUALTY COMPANY, against the plaintiff, A & L MEDICAL CENTER A/A/O GUSTAVO LOPEZ, who shall take nothing by this action. The Court reserves jurisdiction to award attorneys fees and costs.
__________________
1Services claimed were rendered from May 13, 2004 through August 5, 2004.
2The parties agree the policy provided coverage to Gustavo Lopez on the date of accident.
3The Examination Under Oath was set for July 15, 2004, August 25, 2004, September 16, 2004, October 8, 2004 and November 3, 2004. The record reflects these dates were chosen/reset by mutual agreement of the parties with the exception of November 3, 2004 which plaintiff’s attorney unilaterally cancelled.
