13 Fla. L. Weekly Supp. 117a

Insurance — Personal injury protection — Examination under oath — Trial court erred in granting summary judgment in favor of insurer based on insured’s failure to appear for EUO where EOU request was made after complaint was filed — Provider, as insured’s assignee, was entitled to pursue cause of action since insurer did not pay submitted claim within 30-day period

WALTER E. AFIELD, M.D., P.A., D/B/A NEUROPSYCHIATRIC INSTITUTE AND PAIN REHABILITATION INSTITUTE/CYPRESS MEDICAL GROUP, (ASSIGNOR: HOOVER, CHRISTINA), Appellants, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 04-0045AP-88B. UCN522004AP000045XXXXCV. September 21, 2005. Appeal from Final Summary Judgment, Pinellas County Court, Judge Myra Scott McNary. Counsel: Allison M. Perry, Tampa, for Appellant. Valerie Hendricks, Tampa, for Appellee.

ORDER AND OPINION

(DAVID A. DEMERS, J.) THIS CAUSE came before the Court on appeal, filed by Walter E. Afield, M.D., P.A., et al. (Afield), from the Final Summary Judgment, entered April 27, 2004, in favor of Progressive Express Insurance Company (Progressive). Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

The undisputed facts are that Afield is a medical doctor who provided treatment to Christina Hoover for injuries she received in an automobile accident on October 15, 2002. Ms. Hoover, who was covered under an insurance policy issued by Progressive, assigned her rights and benefits to Afield. On June 12, 2003, Afield filed a complaint against State Farm alleging that State Farm failed to fully pay, within thirty days of notification, for charges related to reasonable and necessary medical services rendered to Ms. Hoover. On August 2, 2003, State Farm notified Ms. Hoover, via certified mail, that State Farm had scheduled an Examination Under Oath (EUO), on September 25, 2003. Ms. Hoover failed to appear for the EUO. State Farm moved for summary judgment arguing that Ms. Hoover’s failure to appear for the EUO was a material breach of the insurance contract and precluded Ms. Hoover, or Afield as her assignee, from recovery under the policy. The trial court agreed with Progressive and granted summary judgment per Goldman v. State Farm Fire General Ins. Co., 660 So.2d 300 (Fla. 4th DCA 1995).

On appeal, Afield argues that the reversal of the summary judgment is required as Ms. Hoover’s failure to appear at an EUO scheduled by Progressive post-suit cannot extinguish Afield’s right to recover for medical services. In the alternative, Afield argues that summary judgment was improper since there remain genuine issues of material fact. Progressive responds that there are no genuine issues of material fact and case law supports summary judgment for Ms. Hoover’s failure to appear at the EUO.

In reviewing these issues de novo, the Court initially finds that Afield, as the assignee, has no greater rights against Progressive than those held by Ms. Hoover, as the assignor. See Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22, 24 (Fla. 2d DCA 1979). An insured’s failure to submit to an EUO is a willful and material breach of the insurance contract that precludes the insured from recovery under the policy. See Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 147 (Fla. 3d DCA 1993), rev. denied, 630 So.2d 1101 (Fla. 1993). However, in order for the EUO to be a condition precedent to filing suit, the insurer must make the request before suit is filed. See Willis v. Huff, 736 So.2d 1272, 1274 (Fla. 4th DCA 1999). The insured, or assignee, is entitled to file suit once the claim becomes overdue, on the 31st day after the insurer received notice of the claim. United Automobile Ins. Co. v. Rodriquez, 808 So.2d 82, 87 (Fla. 2002); Amador v. United Automobile Ins. Co., 748 So.2d 307, 308 (Fla. 3d DCA 1999), rev. denied, 767 So.2d 464 (2000); January v. State Farm Mutual Ins. Co., 838 So.2d 604, 607 (Fla. 5th DCA 2003).

The Court finds, as a matter of law, that the trial court’s reliance on Goldman in granting summary judgment is misplaced since the insured in Goldman failed to comply with the insurer’s pre-suit EUO request and then filed suit. See Goldman, 660 So.2d at 301. The facts of this case are similar to those in Willis in which the Fourth District Court of Appeal distinguished between an EUO request made before and after suit is filed. See Willis, 736 So.2d 1274. In Willis, the Fourth District found that the subject insurance policy contained a provision requiring, as a condition precedent to filing suit, an insured submit to an EUO upon request, similar to the policy in Goldman. See id. (emphasis original). The accident in Willis occurred on April 15, 1995, and the insured filed suit on August 29, 1997. However, unlike Goldman, it wasn’t until after suit was filed that the insurer requested the insured submit to an EUO. The Fourth District concluded that, in order to be a condition precedent, the EUO must be requested before suit is filed. See id.

The rationale of Willis applies to the case at bar. As set forth above, Ms. Hoover was involved in an accident on October 15, 2002, and, on June 12, 2003, Afield filed his complaint against Progressive. It wasn’t until after suit was filed, on August 2, 2003, that Progressive requested Ms. Hoover to submit to an EUO. Hence, since the EUO request came after the complaint was filed, Afield was entitled to pursue his cause of action since Progressive did not pay the submitted claim within the 30-day period. See id.; see also January, 838 So.2d at 607.

The Court finds that Ms. Hoover has a contractual obligation to submit to an EUO request pursuant to Progressive’s right to investigate the claim.¹ See Rodriguez, 808 So.2d at 87; January, 838 So.2d at 607; United Automobile Ins. Co. v. North Dade Medical & Wellness, Inc., 11 Fla. L. Weekly Supp. 971 (Fla. 17th Cir. Ct. June 14, 2004) (finding insurer is not barred from investigating and contesting claims after 30-day deadline, but is subject to statutory penalties for denying reasonable and valid claims); compare with Humanitary Health Care, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 531 (Fla. 11th Cir. Ct. March 8, 2005) (holding that insurer cannot defend claim on basis of insured’s failure to attend EUO outside 30-day statutory period after submission of medical bills).

However, while Progressive is not barred from investigating the claim, the Court finds that Ms. Hoover’s noncompliance with an EUO request as an investigative tool is not fatal to Afield’s claim. See January, 838 So.2d at 608 (explaining that there was no arguable breach of contract by the insured prior to the scheduled EUO that would excuse payment of the claim once coverage is established). As analyzed in January:

So what is the effect of January’s refusal to be examined? We have no basis to gainsay the lower court’s conclusion that this was a material breach of the policy and would bar recovery for any claim that was not thirty days old when the policy was breached by January’s refusal to comply with State Farm’s request. Certainly, by May 3, 1999, January’s letter to State Farm clearly communicated his refusal to comply with the request. Whether this breach of the policy occurred as early as the March 23 non-appearance is a question that may or may not matter and may or may not require judicial determination based on the surrounding facts and circumstances.

The Court finds that, at a minimum, a doubt remains as to whether Ms. Hoover’s failure to submit to the EUO warrants denial of Afield’s right to recover PIP benefits which precluded the entry of summary judgment in favor of Progressive. See e.g. Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995)(emphasizing that “if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied”).

Therefore, it is,

ORDERED AND ADJUDGED that the Final Summary Judgment is reversed and this cause is remanded for action consistent with this Order and Opinion. It is further,

ORDERED AND ADJUDGED that the Appellant’s Motion for an Award of Appellate Attorney’s Fees is granted contingent upon the Appellant ultimately prevailing in the proceedings below. The trial court shall determine the amount of reasonable appellate attorney’s fees to be awarded.

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¹The Court notes that Progressive unilaterally scheduled an EUO and provided notice of the EUO, via certified mail, to Ms. Hoover. There is nothing in the record to explain Ms. Hoover’s failure to appear for the EUO and counsel for Afield stated at the summary judgment hearing that his client’s attempts to contact Ms. Hoover were unsuccessful.