13 Fla. L. Weekly Supp. 1213a
Insurance — Personal injury protection — Coverage — Examination under oath — Failure to attend — Where there is no evidence that insurer scheduled EUO, which insured failed to attend, within 30 days after receiving first two bills from medical provider, neither provider nor insured breached insurance contract for those bills, and insurer failed to establish reasonable proof for denying claims regarding those bills — Affidavit of non-appearance for EUO scheduled within 30 days of receipt of third bill raises factual issue as to whether insured was properly scheduled for EUO with respect to third bill — Insurer’s argument that bills were not compliant with section 627.736 fails where insurer failed to provide explanation of benefits regarding deficiencies for 11 months after first bill was submitted — Partial summary judgment entered in favor of provider
SPINE REHABILITATION CENTER a/a/o YOSBANY RAMIREZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 05-CC-22144, Division L. September 5, 2006. John N. Conrad, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. Heather A. Harwell, Luks, Santaniello, Perez, Petrillo & Gold, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT IN PART AND DENYING IN PART
THIS CAUSE having come before the Court on July 13, 2006 pursuant to Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the file, considered the argument and Memorandum of Law submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Plaintiff has alleged that its insured, Yosbany Ramirez (the “assignor”), was involved in an automobile accident on or about August 17, 2004. Defendant has admitted in its Answer that “a contract for insurance coverage existed, designated as policy number UEP410769, to include the date on which the loss occurred providing $10,000 PIP, subject to the terms and conditions of the policy contract including a $2,000 deductible and subject to all applicable laws. . .”
2. As a result of injuries sustained in the accident, Mr. Ramirez received medical treatment from Plaintiff, Spine Rehabilitation Center, beginning on September 30, 2004, and including various dates through November 17, 2004.
3. Plaintiff submitted three billing statements for the above-referenced services to Defendant, which were received by Defendant on October 14, 2004, October 29, 2004, and December 1, 2004. The amounts of these bills were $1,785.00, $3,795.00, and $3,015.00, respectively.
4. Defendant has not paid the claims submitted by Plaintiff and, therefore, did not pay the claims within thirty (30) days after it was furnished with written notice by Plaintiff.
5. On or about January 6, 2006, Plaintiff propounded a First Set of Interrogatories to Defendant. Under Interrogatories numbered 3 and 10, Plaintiff specifically asked Defendant, with respect to any bills that were not paid, to state “your reasonable proof for not paying the respective bill(s) in full.” In its verified Answers to these Interrogatories, Defendant responded by stating that the “Assignor breached the insurance contract by failing to attend an examination under oath.”
6. In opposition to Plaintiff’s Motion for Final Summary Judgment, Defendant filed the deposition of Richard Threlkeld, the litigation adjuster who handled this claim for Defendant, and an Affidavit of Non-Appearance prepared by Helen Bennett, a court reporter, attesting to the non-appearance of the assignor, Yosbany Ramirez, for an alleged examination under oath scheduled on December 13, 2004. Upon reviewing the deposition of Richard Threlkeld, the Court finds that the only tangible evidence produced at the deposition which relates to Defendant’s efforts to schedule the assignor for an examination under oath was the aforementioned Affidavit on Non-Appearance on December 13, 2004.
7. Defendant sent an explanation of benefits to Plaintiff with respect to the bills submitted in this case on or about September 13, 2005.
8. In support of its Motion For Final Summary Judgment, Plaintiff attached the Affidavit of Cesar G. Celpa, who provided the medical treatment to the assignor. As part of the Affidavit, Mr. Celpa attests that the medical treatment and charges “were reasonable, necessary, related and properly coded in relation to the covered motor vehicle accident.”
9. Defendant has not proffered any medical evidence for establishing reasonable proof in denying the claims.CONCLUSIONS OF LAW
The primary issue presented to this Court is whether Defendant can deny the claims of Plaintiff where the “reasonable proof” relied upon by Defendant was the alleged failure of the assignor to attend an examination under oath. The decision in this case is controlled by Fla. Stat. §§ 627.730 – 627.7405, commonly known as the Florida Motor Vehicle No-Fault Law (“No-Fault Law”), and the case law interpreting these statutes. In particular, Fla. Stat. § 627.736 sets forth the specific obligations of an insurance company with respect to a claim submitted under a personal injury protection benefits policy. Fla. Stat. § 627.736(4)(b) states that 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.” This section further provides that “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.”
It is clear from the facts of this case that Defendant did not pay the claims submitted by Plaintiff within 30 days after receiving written notice. Therefore, the essential question for this Court’s determination is whether the alleged failure of the assignor to appear at an examination under oath is sufficient to constitute reasonable proof under Fla. Stat. § 627.736 (4)(b). Under Florida law, the burden is on the insurer to authenticate a claim within the statutory period and the insurer cannot use its investigative rights to extend the thirty day period without reasonable proof that it was not responsible for the claim. See Amador v. United Automobile Insurance Co., 748 So. 2d 307 (Fla. 3rd DCA 1999) and January v. State Farm Mutual Insurance Co., 838 So. 2d 604 (Fla. 5th DCA 2003). In Amador, the Court specifically held that “United Auto’s request for an examination under oath from the insureds beyond the 30-day statutory period was
‘unreasonable’. Florida precedent is clear that the insurer . . . may not unilaterally define ‘reasonable proof’ to extend the statutory time limitation.”
As stated above, the only evidence in the record relating to an examination under oath is the Affidavit of Non-Appearance filed by the court reporter. In his deposition, Mr. Threlkeld, the Defendant’s litigation adjuster, stated that there may have been some effort to schedule an examination under oath on October 21, 2004, but produced no documentary or other evidence demonstrating that the assignor, Mr. Ramirez, was ever notified, nor was there an Affidavit of Non-Appearance indicating that an examination under oath was, in fact, scheduled on this date. Based upon this record, the Court concludes that Defendant failed to schedule the assignor for an examination under oath within 30 days after receiving written notice of the bills submitted on October 14, 2004 in the amount of $1,785.00, and on October 29, 2004 in the amount of $3,795.00. However, given evidence of the Affidavit of Non-Appearance for an alleged examination under oath of the assignor on December 13, 2004, the Court finds that there is a factual issue as to whether Defendant properly scheduled an examination under oath with respect to the bill submitted by Plaintiff on December 1, 2004. Furthermore, with respect to Defendant’s argument that the bills submitted by Plaintiff were not compliant with Fla. Stat. § 627.736, Defendant failed to provide Plaintiff with an explanation of benefits until almost 11 months after the first bill was submitted. The explanation of benefits was the first notice to Plaintiff that there were any deficiencies in the manner in which the bills were submitted, and the Court finds that under these facts, this argument would not constitute a valid defense in this case. See Miller Chiropractic & Medical Centers, Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 983a (Fla. 13th Jud. Cir. August 3, 2005).
In light of the above-stated facts and the relevant case law, this Court concludes that neither Plaintiff nor the assignor breached the contract of insurance with Defendant for the bills submitted on October 14, 2004 and October 29, 2004, and that Defendant has failed to establish reasonable proof for denying Plaintiff’s claims with respect to these bills. Additionally, Defendant has not profferred any other evidence showing that these bills were unrelated, were not medically necessary, or were unreasonable or that the amount of the charges submitted were excessive. The Court hereby grants Plaintiff’s Motion for Summary Judgment, in part, and holds that Plaintiff is entitled to insurance coverage from Defendant for the accident of August 17, 2004, under the policy of insurance issued by Defendant, with respect to the bills submitted by Plaintiff on October 14, 2004 and October 29, 2004. The Court hereby denies Plaintiff’s Motion for Summary Judgment, in part, and holds that the issue of whether Plaintiff is entitled to insurance coverage from Defendant with respect to the bill submitted by Plaintiff on December 1, 2004, presents a genuine issue of material fact that prevents the entry of summary judgment on that issue. See United Automobile Insurance Company v. South Miami Health Center, a/a/o Virgen Vasquez, 12 Fla. L. Weekly Supp. 835b (Fla. 11th Jud. Cir. June 14, 2005).
Plaintiff’s attorney is hereby directed to prepare an appropriate judgment consistent with this Order, and to submit said judgment to the Court, with a copy to opposing counsel. In the event Defendant objects to the proposed judgment, it shall notify the Court in writing, within 5 days after the judgment is submitted, and state its specific objections to the form of the judgment.
