14 Fla. L. Weekly Supp. 1060b
Insurance — Personal injury protection — Failure to attend examination under oath — Insured’s failure to attend an EUO prior to the filing of a lawsuit does not result in immediate breach of the insurance contract — When an insurer reschedules a previously set EUO, the latest date scheduled is the date that is controlling when determining whether the insured complied with a condition in the insurance contract — If the insured cooperates with the insurer to some degree, summary judgment is improper and a question of fact arises for presentment to the jury
CARDENAS MEDICAL SERVICES INC., a/a/o MARIELA B. CESPEDES, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit for Miami-Dade County, Civil Division. Case No. 06-6860 SP 26 (04). September 7, 2007. Gloria Gonzalez-Meyer, Judge. Counsel: Maria E. Corredor and Lina Husseini, Law Offices of Maria E. Corredor, P.A., Miami, for Plaintiff. Jeffrey Tutan.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGEMENT
THIS CAUSE came before the Court on the 21 day of August, 2007 on Defendant’s Motion for Final Summary Judgment and this Court, having reviewed the file, having heard argument of counsel and being otherwise duly advised in the premises, Defendant’s Motion is hereby denied.
UNDISPUTED FACTS
1. On or about September 2, 2006 Mariela Cespedes was allegedly injured in a car accident. Mariela Cespedes sought treatment with the Plaintiff, CARDENAS MEDICAL SERVICES, and submitted a claim for benefits to the Defendant, STATE FARM which was received September 21, 2006.
2. Pursuant to the terms and conditions of the insurance contract with STATE FARM, the person claiming benefits under the policy is required to submit to an examination under oath. The contract further states that there will be no right of action against them until all the terms of the policy are met.
3. On or about October 16, 2006, an EUO of Mariela Cespedes was scheduled to take place on October 19, 2006. Ms. Cespedes’ attorney advised that Ms. Cespedes could not attend because she did not have transportation.
4. On or about October 20, 2006, a second EUO was scheduled for November 3, 2006. Ms. Cespedes failed to appear for the November 3, 2006 EUO and a C.N.A. was obtained. There was however a letter from Ms. Cespedes’ attorney stating that she could not attend the November 3, 2006 EUO.
5. On or about November 15, 2006 a third EUO was scheduled for December 1, 2006. Ms. Cespedes failed to appear for the December 1, 2006 EUO AND a C.N.A. was obtained. However, in the deposition of STATE FARM adjuster Alberto Negrin, he states that he received a call from Ms. Cepedes advising that she got lost and was unable to attend the December 1, 2006 EUO.
6. On or about December 8, 2006 the instant lawsuit was filed.
7. On or about December 29, 2006 STATE FARM obtained its EUO of Ms. Cespedes.
ANALYSIS OF THE LAW
The issue for determination is whether the Defendant’s Motion for Final Summary Judgment should be granted because the Plaintiff filed suit before attending her EUO with STATE FARM which was requested prior to filing suit. STATE FARM contends that the insured’s failure to attend an EUO prior to filing suit resulted in an immediate breech of the contract of insurance. The Court disagrees. The decision by STATE FARM to schedule alternative dates for the EUO renders the effective date of the potential breech to be the later date. See Thomas v. U.S. Security Insurance Co., 9 Fla. L. Weekly Supp. 21b (11th Cir. App. November 6, 2001) (The voluntary rescheduling of an examination amounted to an intentional relinquishment of the right to deny benefits based on failure to attend.); see also Ponders v. Fortune Insurance Co., 578 So.2d 1129 (Fla. 3rd DCA 1991) (The insured waived its right to deny PIP benefits based on refusal to attend a scheduled examination when it voluntarily rescheduled for a later date.) Moreover, STATE FARM did obtain its EUO on December 29, 2006.
There was evidence presented as to whether or not the insured’s failure to appear for the EUOs set before December 29, 2006 was unreasonable. The insured did cooperate by attending the December 29, 2006 EUO and explanations for her noncompliance as to those set prior was given. Thus, a genuine issue of material fact exists as to the nonappearance of the insured for the EUOs set prior to December 29, 2006. See Haiman v. Federal Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001) (If the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury); Felicia Hudson v. United Automobile Insurance Co., 12 Fla. L. Weekly Supp. 833 (11th Cir. App. June 14, 2005) (If the insured cooperates to some degree or provides an explanation for noncompliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution.)
The case of United Automobile Ins. Co. v. Custer Medical Center, opinion filed September 5, 2007, Third District Court of Appeal [32 Fla. L. Weekly D2105a] is distinguishable from the case at bar. In United v. Custer, the insured failed to report for two consecutive IMEs without explanation. In the case at bar, the insured provided explanations for the EUOs she failed to attend and then attended an EUO on December 29, 2006.
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is hereby denied.
