13 Fla. L. Weekly Supp. 729b
Insurance — Personal injury protection — Coverage — Examination under oath — Failure to attend — Attendance at EUO is not condition precedent to benefits where insurer which rescheduled EUO with notation that benefits cutoff was coming effected anticipatory repudiation discharging any further obligations under contract — Further, insurer is required to pay any bills received before failure to attend EUO — Passenger in vehicle owned by insured who has no coverage herself and did not live with anyone with coverage is covered under insured’s policy — Independent medical examination — Failure to attend — Insurer is liable for medical bill for procedure that occurred prior to cutoff date based on failure to attend IME
ACK-TEN GROUP LLC DBA SEACREST OPEN MRI (EDOUARD YOLANDE), Plaintiff, vs. SOUTHERN GROUP INDEMNITY, INC., Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RL. Case No. 502003CC014055XXXXMB. April 18, 2006. Nancy Perez, Judge. Counsel: Kathy Eikosidekas, Marks & Fleischer, P.A., Fort Lauderdale. Mark B. Carroll, Fort Lauderdale.
SUPPLEMENTAL ORDER
THIS MATTER came before this Court on February 17, 2006 on Plaintiff’s Motion for Rehearing with both parties present. After consideration of the Motion and the arguments presented, the Court finds that on the defense of benefits not overdue since the examination under oath was not attended, Amador v. United Automobile Insurance Co., 748 So.2d 307 (Fla. Dist. 1999) rev. den. 767 So.2d 464 (Fla. 2000) is controlling. Amador was cited with approval in United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (Fa. 2001) not overruled as claimed by the defense. See January v. State Farm Mutual Insurance Co., 838 So.2d 604 (Fla. 5th Dist. 2003). See also State Farm Mutual Automobile Insurance Co. v. Jenkins, 767 So.2d 622 (Fla. 4th Dist. 2000).
As to the unreasonable refusal to attend the examination under oath, this Court finds it is not a condition precedent to benefits in this case. See Amador, 761 So.2d 386 and United Auto v. Rodriguez, 808 So. 2d 82 (Fa. 2001); United v. Cicero, 12 Fla. L. Weekly Supp. 321a (11th Cir. App., Jan 11, 2005) and Peachtree v. Walden, 759 So.2d 7 (Fla. 5th Dist. 2000).
Ms. Edouard was scheduled to appear, appeared and was reset numerous times due to a language barrier and to lack of coordination, the examination was again scheduled with a notation there was a cutoff coming. This action is an anticipatory repudiation thereby discharging any further obligations under the contract. See Peachtree v. Walden, 759 So.2d 7; United Auto v. Cicero, 12 Fla. L. Weekly Supp. 321a 11th Cir, (January 2005).
As to the bills before the refusal, U.S. Sec. Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3rd Dist. 1997) require any prior bills be paid which have not been paid. See also Jones v. State Farm, 694 So.2d 165 (Fla. 5th Dist. 1997). Universal Medical Center of South Florida v. Fortune Insurance Company, 761 So.2d 386 (Fla. 3rd Dist. 2000) [it is not an unreasonable refusal to attend an IME when it is rescheduled or canceled].
As to the issue of coverage by Ms. Edouard, this Court finds her affidavit that she was a passenger in the car owned by Defendant’s insured on the date of the collision, had no coverage herself and did not live with anyone with coverage is sufficient to provide coverage under the subject policy.
Dr. Bader’s affidavit attesting Ms. Edouard was treated for injuries involved in the collision support the claim of reasonable, related and necessary.
As to whether the bill is affected by the IME this Court finds the two are not dependent on each other, the procedure resulting in the bill occurred before the cutoff date indicated by Mr. Chester. Therefore, the argument does not apply. Therefore, this Court finds the balance of Defendant’s affirmative defenses have been refuted by case law or unsupported by the facts. Based on the foregoing, it is
ORDERED AND ADJUDGED that as to the remaining affirmative defense raised, this Court finds the defenses as stated above are not valid defenses and Plaintiff’s Motion for Summary Judgment is granted.
