14 Fla. L. Weekly Supp. 1091a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer sent letter suspending benefits as of two days after date of MRI and scheduled insured to attend EUO regarding MRI, trial court erred in finding no genuine issue of material fact regarding whether suspension letter constituted anticipatory breach of contract relieving insured of obligation to attend EUO
UNITED AUTOMOBILE INS CO., Appellant, vs. OPEN MRI MIAMI-DADE LTD., a/a/o VENETTIA WILLIAMS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-106 AP & 06-188 AP. L.C. Case No. 04-1789. September 21, 2006. On Appeal from the County Court for Miami-Dade County, Jacqueline Schwartz, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Maria Sampedro-Iglesia, for Appellee.
(Before TRAWICK, EMAS, and BUTCHKO, JJ.)
(EMAS, J.) Appellant, United Automobile Insurance Company (“United Auto”) appeals from a Summary Judgment granted in favor of Appellee, Open MRI of Miami-Dade (“Appellee”). As there still remains a genuine issue of material fact, we reverse and remand.
On April 19, 2003 Venettia Williams (“Williams”) sustained personal injuries as a result of an automobile accident. At the time of the accident, Williams was covered under a Personal Injury Protection (“PIP”) policy issued by United Auto. United Auto scheduled Williams for an Independent Medical Examination (“IME”) on June 16, 2003. Williams attended the IME. Williams thereafter underwent a Magnetic Resonance Imaging (“MRI”) with Appellee on June 23, 2003 and incurred medical expenses as a result. After accepting an assignment of benefits from Williams, Appellee sent the MRI bill to United Auto pursuant to Williams’ PIP policy. United Auto received the bill on July 7, 2003.
On July 18, 2003 United Auto sent Williams a suspension of benefits letter, advising that the IME physician has determined that any further medical treatment would not be considered reasonable, related or necessary. The suspension letter reads in pertinent part:
Please be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after 7/25/03. (Emphasis added.)
During this same time frame, United Auto scheduled Williams for an Examination Under Oath (“EUO”) regarding the June 23rd MRI bill. The EUO was to take place on July 29, with a secondary date of August 5, 2003.
Although the two courses of action taken by United Auto (i.e., the suspension letter and the scheduling of an EUO) appear fatally inconsistent, closer examination reveals otherwise. The suspension of benefits letter was based upon the IME and advised Williams that benefits would not be paid for medical services rendered after July 25, 2003. By contrast, the EUO was part of United Auto’s investigation regarding the bill for an MRI that was performed on June 23, 2003 (before the effective date of suspension of benefits). United Auto received the MRI bill on July 7, 2003. Pursuant to Florida Statutes, Section 627.736, United Auto had thirty days from receipt of the bill (i.e., from July 7 until August 6, 2003) to investigate the MRI bill in question and determine whether to approve or deny payment. See Crooks v. State Farm Mutual Automobile Ins. Co., 659 So.2d 1266 (Fla. 3d DCA 1995).
Fla. Stat. §627.736(4)(b) provides in part:
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer.
…
However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery.
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
As a part of its investigation of the MRI bill, United Auto scheduled Williams for an EUO for July 29, 2003 with a secondary date of August 5, 2003, both dates falling within the thirty-day time period to which United Auto was entitled under Section 627.736(4)(b).
Williams failed to attend the EUO on either date. Appellee asserted in its motion for summary judgment that United Auto’s July 18, 2003 suspension letter constituted an anticipatory breach of the contract, relieving Williams of any further obligations, including the obligation to attend the EUO. Appellee argued that United Auto’s anticipatory breach made United Auto liable for the MRI bill. The trial court agreed, entering summary judgment in favor of Appellee on this issue.1
The trial court erred in granting summary judgment premised upon a finding that United Auto anticipatorily breached the contract when it sent the July 18th suspension of benefits letter. The suspension of benefits letter provided that it would not pay for medical services rendered after July 25, 2003; that letter did not affect the bill in question, because the MRI was performed on June 23, 2003. By the terms of its suspension letter, United Auto did not, as a matter of law, commit an anticipatory breach,2 and was entitled to continue its investigation regarding the MRI bill, including the scheduling of an EUO within the thirty-day investigative period.
An anticipatory repudiation is a definite and unconditional repudiation of a contract by a party thereto, communicated to the other, which is a breach of the contract, creating an immediate right of action and other legal effects. Peachtree Casualty Ins. Co. v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000). Appellee argues that Peachtree supports the trial court’s decision in granting summary judgment. However, the facts in Peachtree, while similar, differ in one material respect: the medical bill in Peachtree was incurred after the cutoff date set forth in the suspension of benefits letter. In the instant case, the medical bill in question was incurred before the cutoff date set forth in the suspension of benefits letter.3
The trial court erred in finding that there was no genuine issue of material fact regarding whether the July 18, 2003 suspension letter constituted an anticipatory repudiation by United Auto.
The trial court’s Order granting Summary Judgment on this issue is REVERSED; the award of Appellee’s attorney’s fees based upon the underlying judgment is likewise REVERSED, and this cause REMANDED to the trial court for further proceedings consistent with this opinion. (TRAWICK and BUTCHKO, JJ., concur.)
__________________
1The trial court also granted summary judgment in favor of Appellee on the issue of whether medical services were reasonable, related and necessary. That issue is not before us.
2Or at least there exists a genuine issue of material fact whether United Auto committed an anticipatory breach by its suspension letter.
3It should be noted that the suspension of benefits letter was less than clear in its intent or scope, and this Court need not determine whether an insured reasonably would have understood her rights and obligations (and the rights and obligations of United Auto) following receipt of the suspension letter.
