14 Fla. L. Weekly Supp. 496b
Insurance — Personal injury protection — Examination under oath — Failure to attend — Waiver of defense — Where insurer took no action on receipt of claim, did not have reasonable proof sufficient to deny claim, and failed to provide explanation of benefits, insurer’s inaction is waiver of defense that insured failed to attend EUO scheduled more than 30 days after receipt of first bill
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Mercedes Medina) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-010052 COCE (52). March 2, 2007. Jay S. Spechler, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Pompano Beach. Jason Lopez, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE
THIS CAUSE came before the Court on March 2, 2007 for hearing on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
1. On March 31, 2002, Mercedes Medina was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Medina sought treatment from various medical providers including the Plaintiff.
3. The subject insurer received bills on May 6, 2002, May 22, 2002, and June 4, 2002 from Active Spine Centers as well as other medical providers. The subject insurer received the bill from the Plaintiff on September 25, 2002. As of October 25, 2002, Defendant had no basis not to pay Plaintiff’s bill.
4. United Automobile Insurance Company alleges that an Examination Under Oath was set for November 12, 2002 which was a rescheduling of prior appointments. The Defendant alleges the patient failed to appear at this examination.
5. The November 12, 2002 appointment was outside the thirty days Defendant had to verify the claim. Amador v. United Auto Ins. Co., 748 So.2d 307 (Fla. 3rd DCA, 1999); 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 day period within which the insurer must pay). The appointments were also outside the 30 days of receipt of the first bill. Thus the Court notes 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 receipt of additional bills from the plaintiff). Moreover, the Defendant has waived their right to rely upon the prior appointments due to their rescheduling the Examination under Oath. Ponders v. Fortune Insurance Co., 578 So.2d 1129 (Fla. 3rd DCA 1991); Universal Medical Center v. Fortune Insurance Co., 761 So. 2d 386 (Fla. 3rd DCA 2000); Tomas v. U.S. Security Insurance Co., 9 Fla L. Weekly Supp. 21.
6. Defendant never issued any correspondence to NDNC Neurological Treatment Centers, Inc. that it was denying the bill based on a failure to attend an Examination Under Oath. Defendant had no other basis for which it did not pay the benefits owed to the Plaintiff.
7. The Plaintiff, through her attorney submitted a pre-suit Demand Letter which was received by the Defendant on June 2, 2006. Said Demand contained a request to communicate any Policy/Coverage Defenses. The Demand stated: “Should it be the position of your company that there exists any insurance policy coverage defenses for matters such as the Insured having failed to attend an Examination Under Oath. . .notice of this coverage defense must be provided within 15 days, or this defense shall be deemed waived”. Further, the Demand requested: “. .demand is also hereby made for copies of all IME/EUO notices with proof of receipt so that the Undersigned can determine the validity of any alleged defense”.
8. The Defendant did not respond. The Defendant’s litigation adjuster with the most knowledge of the claim testified as follows in deposition:
Q: At any point in time after the demand was received, did United respond to Mr. Avrunin (plaintiff counsel who authored demand) with the requested documents?
A: Not to the best of my knowledge.
Q: Do you know why this requested information wasn’t furnished to Mr. Avrunin?
A: No.
Q: And you don’t know who was even responsible for reviewing the Demand?
A: No.
Q: And likewise, this information was never furnished at any point in time to NDNC directly itself either?
A: No, not to the best of my knowledge.
9. Nearly four years after the Plaintiff’s bill was received by the Defendant, Defendant raised an Affirmative Defense of failing to appear at an Examination Under Oath.
10. Plaintiff affirmatively asserted waiver in its reply.
11. Since receiving the Plaintiff’s claim and prior to the filing of this lawsuit, the Defendant did not notify the Plaintiff as to why it would not pay the claim.
12. 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).
13. 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. If the patient or medical provider who provided services is unaware 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 receipt of the first bill.
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the Defendant’s First Affirmative Defense of failing to appear at an Examination Under Oath of the Complaint.
