14 Fla. L. Weekly Supp. 308a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer took no action upon receipt of claim, did not have reasonable proof sufficient to deny the claim, and failed to provide an explanation of benefits, that inaction resulted in waiver of defense that claimant failed to attend EUO scheduled more than 30 days after receipt of plaintiff’s first bill
MARTINEZ CHIROPRACTIC CENTER, INC., A/A/O MILGAROS BRUIGET, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-001473 COCE (52). January 16, 2007. Jay. S. Spechler, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Todd Landau, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE
THIS CAUSE came before the Court on December 11, 2006 for hearing of Plaintiff’s Motion for Partial Summary Judgment on EUO No-Show Defense, the Court having reviewed the Motion and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
1. On February 26, 2003, Milagros Bruiget was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Bruiget sought medical treatment from the Plaintiff, MARTINEZ CHIROPRACTIC CENTER (hereinafter, “MARTINEZ”), on March 3, 2003 and executed a valid Assignment of Benefits to the Plaintiff.
3. Plaintiff submitted its first claims via certified mail on March 26, 2003 for dates of service March 3 through March 19, 2003. The return receipt reflects that UNITED received the claims on March 27, 2003. Subsequent claims were submitted and received as follows:
| Date(s) of Service | Date Claim Submitted | Date of Receipt | |
| a. | 03/21/03 | 04/02/03 | 04/03/03 |
| b. | 04/02/03 | 04/10/03 | 04/11/03 |
| c. | 04/04/03 | 04/17/03 | 04/22/03 |
| d. | 04/07/03-04/16/03 | 04/24/03 | 04/25/03 |
| e. | 04/18/03-04/21/03 | 05/07/03 | 05/08/03 |
| f. | 04/23/03-04/30/03 | 05/07/03 | 05/08/03 |
| g. | 05/05/03-05/09/03 | 05/21/03 | 05/23/03 |
| h. | 05/13/03-05/14/03 | 05/21/03 | 05/23/03 |
| i. | 05/16/03-05/21/03 | 05/28/03 | 06/02/03 |
| j. | 05/28/03 | 06/05/03 | 06/09/03 |
| k. | 06/03/03-06/04/03 | 06/12/03 | 06/16/03 |
| l. | 06/13/03-06/18/03 | 06/26/03 | 07/02/03 |
| m. | 06/27/03-06/30/03 | 07/10/03 | 07/15/03 |
| n. | 07/01/03-07/09/03 | 07/17/03 | 07/22/03 |
| o. | 07/11/03 | 07/24/03 | 08/01/03 |
5. UNITED first scheduled an Examination Under Oath of the claimant, Ms. Bruiget, for June 3, 2003, and June 11, 2003, well over thirty (30) days following the receipt of MARTINEZ’ first claim.
6. Plaintiff submitted a demand letter to UNITED on January 27, 2005. UNITED received the letter on January 31, 3005.
7. On October 23, 2005, Plaintiff MARTINEZ CHIROPRACTIC CENTER, INC. filed its Complaint.
8. On August 9, 2006, Defendant UNITED AUTOMOBILE INSURANCE COMPANY, (hereinafter “UNITED”) filed its Amended Answers and Affirmative Defenses to the Complaint, contending in its First Affirmative Defense that, “on two separate occasions, Plaintiff failed to attend duly noticed and properly scheduled Examinations Under Oath as required under the contract of insurance at issue. In particular, Milagros Bruiger [sic], failed to appear for Examination Under Oath appointments on June 3, 2003 and June 11, 2003. As such, Defendant is not liable for any medical or transportation bills subsequently submitted to Defendant, and said bills are not overdue.”
9. Plaintiff contends that, because UNITED failed to schedule the EUO within the 30 day period specified in Florida Statute 627.736(4)(b), UNITED became liable for the bills. Plaintiff based this contention on —
a. Florida Statute 627.736(4)(b),
b. The holdings set out in Amador v. United Auto Ins. Co., 748 So.2d 307 (Fla. 3rd DCA, 1999), and January v. State Farm Mut. Ins. Co., 838 So.2d 604 (Fla. 5th DCA, 2003), (both cases standing for the proposition that the requirement for an examination under oath does not toll or extend the thirty days period within which the insurer must pay),
c. The holdings set out in Pinnacle Medical, Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (17th Cir. Ct., Apr. 23, 1998), and Crooks v. State Farm Mutual Automobile Ins. Co., 659 So.2d 1266 (Fla. 3rd DCA, 1995) (both cases standing for the proposition that the insurer has 30 days within which to investigate and authenticate the claim), and
d. The holding set out in United Auto Ins. Co. v. Dr. Jason Marucci a/a/o Ruth Botero, 12 Fla. L. Weekly Supp. 1037a (Fla. 17th Cir. Ct. App., Jun. 11, 2005) (standing for the proposition that the 30 day investigation period does not re-start or re-set upon the receipt of additional bills from the plaintiff).
10. UNITED contends that it is not responsible for payment of those claims received within 30 days of the date of the scheduled EUO, and those claims it received subsequent to the date of the scheduled EUOs. UNITED based its contention on —
a. An Order executed by Judge Stephen Delucca on October 23, 2006, Martinez Chiropractic Center a/a/o Camilo Mejia v. United Automobile Insurance Co., Case # CONO 05-004184 (70) (granting summary judgment for the plaintiff up until the date of the EUO no-show),
b. United Automobile Insurance Company v. South Miami Health Center a/a/o Virgen Vasquez, 12 Fla. Law Weekly Supp. 835b (11th Cir. Ct. App. Jun. 14, 2005), and A-1 Mobile MRI a/a/o Jacqueline Pessoa v. United Automobile Insurance Co., 13 Fla. L. Weekly Supp. 288a (17th Cir. Ct. Dec. 21, 2005) (standing for the proposition that the insurer gets a new 30 days in which to schedule an EUO for every set of bills it receives from the plaintiff/provider), and
c. United Automobile Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 Fla. L. Weekly Supp. 437a (11th Cir. Ct. App., Feb. 17, 2005), and United Automobile Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 Fla. L. Weekly Supp. 41b (11th Cir. Ct. App., Nov. 2, 2004) (in both cases, the insurer scheduled the EUO within 30 days of receiving the only bill on the record from the plaintiff/provider).
11. During the hearing, UNITED conceded summary judgment as to the first and second set of bills it received from the Plaintiff, because the EUO was scheduled after the 30 day period in which to investigate the claim had expired and because UNITED has failed to obtain reasonable proof that it was not responsible for payment. UNITED also conceded that it failed to submit an explanation of benefits, a PIP payout log, or any response to the Plaintiff’s demand letter.
12. Since receiving the Plaintiff’s claims and prior to the filing of this lawsuit, UNITED took absolutely no action to investigate the Plaintiff’s claims, other than to schedule the EUO. UNITED did not notify the patient or the Plaintiff as to why it would not pay the claims.
13. Without a doubt, the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000); Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA, 1974); cited with approval in Amador v. United Auto. Ins. Co., 748 So.2d 307 (Fla. 3rd DCA, 1999).
14. An insurance company has 30 days from the date they receive the bill to either pay the claim or dispute it. An insurance company that does nothing acts contrary to public policy and statutory obligation because neither the patient/insured nor the plaintiff/provider is aware that the insurer is disputing the charges. If neither the patient/insured nor the plaintiff/provider is aware that the charges are being disputed, neither can make an informed decision as to whether litigation is necessary. If an insurance company takes no action upon receipt of claim, does not have reasonable proof sufficient to deny the claim, and further fails to provide an Explanation of Benefits, then, under the circumstances of this case, that inaction shall result in a waiver of its defense that the claimant failed to attend an EUO scheduled more than 30 days after the receipt of the Plaintiff’s first bill.
Accordingly, it is ORDERED and ADJUDGED, the Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s EUO No-show defense is hereby granted.
