13 Fla. L. Weekly Supp. 1233a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Insured did not unreasonably refuse to attend EUO where insured’s attorney requested that insurer reschedule EUO that had been unilaterally scheduled for minor at time parent was unavailable to attend, and insurer never responded to attorney’s request — Claim form — Acknowledgment and disclosure form — Where medical provider’s self-generated acknowledgment and disclosure form includes all language specified by section 627.736(5)(e) and identifies specific services rendered, form substantially complies with statute despite failure to use specific form generated by state
YESENIA GUERRA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-16576 COCE 55. September 15, 2006. Eric Beller, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, Margate, for Plaintiff. Ben Soo Hoo, for Defendant.
FINAL ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on Plaintiff’s Motion for Final Summary Judgment, having heard the argument of counsel and being otherwise advised in the premises it is hereby:
ORDERED AND ADJUDGED as follows:
1. The Plaintiff filed suit for PIP benefits. The Plaintiff previously won Summary Judgment as to all issues in this case other than two remaining defenses. The case is set for trial. There are no motions for continuances filed and all reasonable discovery has been completed by both parties.
2. As it relates to the first remaining defense which is that the patient failed to attend an examination under oath (EUO) the Court finds for the Plaintiff. The Plaintiff filed an affidavit of the patient’s attorney Jeffrey Nussbaum, which essentially states he received the Defendant’s EUO notification and he requested the Defendant to reschedule the EUO because a) the Defendant unilaterally scheduled the EUO of the patient who was a minor and b) the patient’s father was unavailable to attend the EUO. The affidavit further states the Defendant never responded to the Plaintiff’s attorney’s request. The Defendant did not file any affidavits or record evidence in opposition to the allegations of Mr. Nussbaum. Therefore, as a matter of law, there is no question the patient did not unreasonably refuse to attend the EUO. See Active Spine Center v. United, 12 Fla. L. Weekly Supp. 318 (Fla. 11th Cir. Court 2005); Germania Fire v. Phineas Stone, 21 Fla. 555 (1885); Goldman v. State Farm, 660 So.2d 300 (Fla. 4th DCA 1995); Willis v. Huff, 736 So.2d 1272 (Fla. 4th DCA 1999); Amador v. United, 748 So.2d 307 (Fla. 3d DCA 1999); Marlin v. State Farm, 897 So.2d 469 (Fla. 3d DCA 2004); Lamora v. United, 12 Fla. L. Weekly Supp. 114 (Fla. 11th Cir. Court 2004); Northeast Pain Management v. United, 13 Fla. L. Weekly Supp. 545 (Fla. 11th Cir. 2006).
3. As it relates to the remaining affirmative defense regarding the alleged deficiency of the acknowledgment and disclosure form the Court finds for the Plaintiff. The record evidence reflects the self generated form filled out by the provider and the Plaintiff, filled out on the first date of service, substantially complies with the requirements of F.S. 627.736(5)(e) which requires the following:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered;
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered;
c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider;
d. That the physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and
e. If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.
4. The form filled out by the Plaintiff which is in the court record specifically includes all of the above language as well as the specific services rendered on the first day of treatment.
5. While the Plaintiff’s provider did not use the specific form generated by the State of Florida, the form that was used in this case substantially complies with the spirit and intent of the PIP statute. See South Florida Physicians Group v. U.S. Security Insurance Co., 12 Fla. L. Weekly Supp. 173 (Fla. Broward Cty. Court 2004, Judge Herring) as the Judge found there to be substantial compliance. See also Hollywood Diagnostic v. Southern Group, 12 Fla. L. Weekly Supp. 1180a (Fla. Dade Cty. Court 2005) (self generated form is okay); Weiss v. Progressive, 13 Fla. L. Weekly Supp. 395a (Fla. Seminole Cty. Court 2006) (self generated); Florida Center for Orthopaedics v. Allstate, 13 Fla. L. Weekly Supp. 491 (Fla. Orange Cty. Court 2006) (self generated); Weiss v. Progressive, 13 Fla. L. Weekly Supp. 513 (Fla. Seminole Cty. Court 2006); and 627.732(13); Total Care Health Center v. United, 12 Fla. L. Weekly Supp. 967 (Fla. Dade Cty. 2005) (self generated form); South Miami Health v. United, 13 Fla. L. Weekly Supp. 619 (Fla. Dade Cty. Court 2006) (provider wrote see attached ledger in line one which was acceptable); Friedman v. United, 13 Fla. L. Weekly Supp. 825 (Fla. Dade Cty. Court 2006) (self generated); South Miami v. United, 13 Fla. L. Weekly Supp. 826 (Fla. Dade Cty. Court 2006).
6. Accordingly, the Plaintiff is the prevailing party entitled to attorney’s fees and costs pursuant to Fla. Stat. §627.428.
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