13 Fla. L. Weekly Supp. 365b
Insurance — Personal injury protection — Coverage — Denial — Examination under oath — Failure to attend — Where insurer failed to schedule EUO within 30 days of receiving notice of claim and did not have any reasonable proof that it was not responsible for payment of claim, insured’s failure to attend EUOs scheduled outside 30-day statutory period did not give insurer right to deny benefits to insured
SOUTH FLORIDA INSTITUTE OF MEDICINE, A/A/O ADRIANA MORALES, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 03-11423 CC 25, Section No. 01. February 1, 2006. Andrew S. Hague, Judge. Counsel: Kevin Whitehead, Downs Brill Whitehead & Sage, Coral Gables.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came to be heard on January 24th, 2006, on Plaintiff’s Motion for Final Summary Judgment and upon hearing the arguments of counsel, reviewing the record evidence, and being otherwise fully advised in the premises, the Court makes the following findings of facts and law:
UNDISPUTED FACTS
1. Adriana Morales (hereinafter referred to as the “claimant”) was insured under United Automobile insurance policy # 000241404 that commenced on September 4, 2002 and ran through September 4, 2003.
2. The claimant was allegedly involved in an automobile accident on December 22nd, 2002.
3. As a result of the alleged accident, the claimant allegedly sustained injuries for which she allegedly received treatment at South Florida Institute of Medicine (hereinafter referred to as South Florida).
4. Ms. Morales subsequently assigned her benefits to South Florida.
5. The Plaintiff billed the Defendant on January 29, 2003 for dates of service January 2, 2003 January 15, 2003 in the amount of $2,413.00.
6. Those bills had been received by the Defendant on February 6, 2003.
7. On February 11, 2003, the Plaintiff billed the Defendant $992.00 for January 17, 2003 through January 27, 2003 dates of service.
8. The Plaintiff then billed the Defendant on February 25, 2003 for the dates of service that included January 29, 2003 through February 11, 2003 in the amount of $696.00.
9. On March 5, 2003, the Defendant scheduled Ms. Morales for an Examination Under Oath, or EUO. Alternatively, Ms. Morales was scheduled for her EUO on March 28, 2003.
10. Ms. Morales did not appear at either EUO.
11. None of the claims were paid by the Defendant within 30 days.ANALYSIS
Attending an Examination Under Oath has been recognized as a condition precedent to filing suit under the policy and is usually so stated as part of the contractual obligations of the actual insurance policy. Goldman v. State Farm Fire General Insurance Co., 620 So.2d 760 (Fla. 1993). However, the case law does not necessarily bar an insured from filing suit simply because the insured failed to attend the Examination Under Oath (EUO).
Florida Statute §627.736(4)(b) reads in part:
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. . .
It goes on to state:
However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.
The legislative intent and, clear intent of the statute, is to “guarantee swift payment of PIP benefits.” Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995); Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974).
Once the insurer has been notified of the claim, they have 30 days to investigate that claim as the insured’s loss becomes due and payable as the loss accrues. Under § 627.736(4)(b), “the burden is clearly upon the insurer to authenticate the claim within the statutory period” Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974). That 30 day statutory time limit is a hard limit and the insurer cannot use its investigative rights to extend that period without reasonable proof that it is not responsible for the claim. See § 627.736(4)(b), Fla. Stat. (1997).
Amador v. United Automobile Insurance Co., 748 So.2d 307 (Fla. 3d DCA 1999), clearly holds that insurers must authenticate a claim within thirty (30) days and that the mere scheduling of an EUO does not constitute authentication for the purposes of the statute.
In the present case, the Defendant failed to schedule an EUO within 30 days of the initial notice and even though the insured failed to appear for future EUOs that were scheduled outside of the 30 day statutory period, the insurer did not have any reasonable proof that it was not responsible for the claim. Therefore, the Plaintiff is free to file suit and the failure to attend the EUO does not give the Defendant, United Automobile Insurance Co. the right to deny benefits to the Plaintiff.
THEREFORE Plaintiff’s Motion for Summary Judgment is hereby granted.
