15 Fla. L. Weekly Supp. 1199a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Claimant’s failure to appear for EUO without cause or explanation warrants entry of summary judgment in favor of insurer — Medical provider/assignee, who stands in shoes of claimant, is subject to denial of its claim for claimant’s failure to attend EUO — No merit to argument that claimant was not bound by terms of PIP contract to which she was not party where contract requires any person or claimant to submit to EUO as condition precedent to maintaining suit for breach of policy
DC HEALTH & REHAB CENTER, INC., a/a/o HILDA BOLANOS, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 06-20746 SP 05 (01). October 2, 2008. Shelley J. Kravitz, Judge. Counsel: Stuart B. Yanofsky; and Neil M. Gonzalez, for Plaintiff. Edward N. Winitz, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Defendant.
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE came before the Court upon Defendant, STATE FARM FIRE AND CASUALTY COMPANY’s (“STATE FARM”), Motion for Final Summary Judgment pursuant to Florida Rule of Civil Procedure 1.510(a). The Court, having reviewed the submissions of STATE FARM, and noting the Plaintiff, DC HEALTH & REHAB CENTER, INC., a/a/o HILDA BOLANOS (“Plaintiff”), did not submit any affidavits or authorities in opposition to STATE FARM’s motion, and having heard the argument of both parties at a hearing dated September 4, 2008, and the Court being otherwise fully advised in the premises, hereby grants STATE FARM’s motion for the reasons set forth herein.
FACTS
This is an action by the Plaintiff seeking recovery of unpaid personal injury protection (PIP) benefits on behalf of Hilda Bolanos through an Assignment of Benefits and arising out of treatment commencing June 29, 2005 through July 25, 2005, totaling $5,076.
STATE FARM’S NOTICES TO BOLANOS
STATE FARM received bills for services rendered to Hilda Bolanos (“BOLANOS”) on August 3, 2005. On August 15, 2005, STATE FARM, through its counsel, noticed the Claimant, Bolanos, for an Examination Under Oath to take place on August 23, 2005. This notice was sent via both regular mail and certified mail to the address provided to STATE FARM by Bolanos and Plaintiff. The certified letter from defense counsel to Bolanos was signed for by Bolanos’ son. The notice sent by regular mail was not returned to defense counsel’s office. Further, the Notice of Examination Under Oath was served on Bolanos by a process server on August 19, 2005.
The uncontroverted deposition testimony and as conceded to by the Plaintiff, indicated that Bolanos had received the Notice of Examination Under Oath. Bolanos also testified that she opened the letter containing the Notice of Examination Under Oath and read part of the letter. Bolanos then placed the letter and notice into her drawer, and, thereafter, failed to read same or have someone read it to her. Bolanos had testified in her deposition that she had asked her son to also read that letter to her, but after placing the letter in the drawer, Bolanos “forgot” to have her son read it to her. At no time did Bolanos ever ask anyone else to read that letter to her. It should be noted that the letter contained both Spanish and English and that Bolanos indicated that she could read a little Spanish and that her son could read a little English.
Bolanos failed to appear for her Examination Under Oath on August 23, 2005, and never communicated with Defendant or its counsel giving any reason or excuse for failing to appear for her August 23, 2005 Examination Under Oath.
TREATMENT BILLED BUT NOT RENDERED
The second issue raised by the Defendant in its Motion for Final Summary Judgment was that STATE FARM should not be responsible to pay for treatment billed but not rendered by the Plaintiff to Bolanos. Bolanos had testified that pursuant to the subject motor vehicle accident, she only had pain in her back and in her right knee. Yet, Plaintiff’s medical records and progress notes indicate that Plaintiff and its chiropractor, Jose J. DeGoti, D.C., treated Bolanos for injuries to her back muscles, right shoulder, right knee, and right ankle or foot. Despite Bolanos having testified that she did not suffer any injury to her right shoulder and right ankle or foot, Plaintiff submitted bills for said treatment to STATE FARM for various physical therapy modalities.
Bolanos had also testified that she had only seen a doctor on the first office visit, but that thereafter, she was never once examined by any doctor. Notwithstanding, Dr. Jose DeGoti and Plaintiff billed for office visits for examinations allegedly performed by Dr. DeGoti.
STATE FARM denied Plaintiff’s bills, and a lawsuit was thereafter filed.
EVIDENCE SUBMITTED BY STATE FARM IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION
It is noteworthy to mention that in support of its motion, State Farm submitted several documents, including:
– Exhibit “A — Affidavit of Dean Rogers In Support of Defendant’s Motion for Final Summary Judgment, dated February 28, 2008. In this affidavit, Mr. Rogers explained that he is employed by STATE FARM and that the documents submitted by STATE FARM are business records maintained in the regular course of business. He further explained that no one, including Bolanos, contacted STATE FARM to advise of any reason or excuse for Bolanos not attending the Examination Under Oath or to reschedule the appointment. Mr. Rogers opined that this failure to attend the Examination Under Oath was a breach of the terms and conditions of the policy of insurance and that her refusal to attend her Examination Under Oath was unreasonable.
– Exhibit “B” — Copy of State Farm’s Automobile Insurance Policy with its insured, Salvadore Perera.
– Exhibit “C” — Plaintiff’s CMS-1500 forms (bills) for medical services rendered.
– Exhibit “D” — Notice to Hilda Bolanos of the August 23, 2005 Examination Under Oath on Defense Counsel’s stationery dated August 15, 2005. Also attached as part of Exhibit “D” is a copy of the certified return receipt signed on August 17, 2005 by Bolanos’ son as admitted to in Bolanos’ deposition.
– Exhibit “E” — Deposition transcript dated November 2, 2005 of Hilda Bolanos. At the hearing, the original transcript and exhibits attached thereto were filed with the Court.
– Exhibit “F” — Various medical records and reports from Plaintiff pertaining to Bolanos.
– Exhibit “G” — Three CMS-1500 forms from Plaintiff showing examinations were performed on Plaintiff by Dr. DeGoti on June 29, 2005, July 27, 2005, and August 24, 2005.
– Exhibit (filed with the Court on June 12, 2008) — Return of Service indicating Defendant’s Notice of Taking Examination Under Oath was personally served on Hilda Bolanos on August 19, 2005.
In contrast, Plaintiff did not submit any written opposition to State Farm’s motion; did not submit any documents or affidavits; relied upon those exhibits filed by State Farm; and only appeared at the September 3, 2008 hearing to present arguments.
RELEVANT POLICY LANGUAGE
The policy provision at issue here provides as follows:
Part B — under 2 — REPORTING A CLAIM — INSURED’S DUTIES.
Any person making claim:
a) under the no-fault, medical payments, uninsured motor vehicle and death, dismemberment and loss of sight coverages shall:
(2) be examined by physicians chosen and paid by us as often as we reasonable may require. A copy of the report will be sent to the person upon written request. The person, or his or her legal representative if the person is dead or unable to act, shall authorize us to obtain all medical report and records.
PART C
Questioning Under Oath:
Under:
b. No-Fault Coverage, Medical Payments Coverage, Uninsured Motor Vehicle Coverage, and Death, Dismemberment and Loss of Sight Coverage any person or organization making claim or seeking payment; must, at our option, submit to an examination under oath, provide a statement under oath, or do both, as reasonable often as we require. Such person or organization must answer questions under oath, asked by anyone we name, and sign copies of the answers. We may require each person or organization answering questions under oath to answer the questions with only that person’s or organization’s legal representative, our representative, and no other person present.
PART 9 — CONDITIONS
2. Suit Against US
There is no right of action against us:
a. Until all the terms of this policy have been met;
ANALYSIS Standard of Review on Summary Judgment
It is well settled that summary judgment is proper when there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once competent evidence to support the motion is tendered, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla. 1979); Kolnick v. Fountainview Association, Inc. # 2, 737 So. 2d 1192 (Fla. 3d DCA 1999). It is not enough for the opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997).
I find that STATE FARM has met its initial burden of demonstrating the non-existence of a genuine issue of material fact as it relates to the Examination Under Oath no-show affirmative defense. I do not find, however, that STATE FARM has met its burden of demonstrating the non-existence of a general issue of material fact as it relates to the issue of whether Plaintiff billed for treatment not rendered due to the fact that the exhibits attached show that treatment was rendered; thus, creating an issue of material fact.
Despite State Farm having met its burden of demonstrating the non-existence of a general issue of material fact with regard to the EUO no-show defense, I further find that Plaintiff, in choosing to not submit any counter evidence, has failed to meet its burden of demonstrating a genuine dispute of material fact. On this basis, as well as the substantive basis set forth below, I find that State Farm’s motion should be granted on the Examination Under Oath no-show affirmative defense.
THE NOTICE AFFORDED TO BOLANOS AND THE MAIL RULE
The record is clear that STATE FARM scheduled Bolanos’ EUO to take place within thirty days of notice of the claim. See United Automobile Insurance Co. v. Millennium Diagnostics & Imaging Center, 10 Fla. L. Weekly Supp. 971c (Fla., October 14, 2003). STATE FARM had set the EUO for August 23, 2005. I find that the notice was timely afforded to Bolanos.
At the hearing, Defendant convincingly argued that Bolanos had timely received the notice of the Examination Under Oath by both certified mail and by process server. The fact that the notice sent through regular mail was not returned gives rise to the presumption of receipt created by the mail rule.
PLAINTIFF STANDS IN THE SHOES OF BOLANOS
PLAINTIFF “stands in the shoes” of BOLANOS as a result of an assignment and thus, acquired all the benefits and obligations under the policy of insurance. All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla. 1972); Dove v. McCormick, 698 So.2d 585 (Fla. 5th DCA 1997) (“The assignee stands in the shoes of his assignor.”). See also Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So. 2d 446 (Fla. 2nd DCA 2003). By failing to appear for the timely scheduled examination under oath, BOLANOS breached a condition precedent to coverage under the policy and, therefore, PLAINTIFF, because it stands in the shoes of BOLANOS, must necessarily face the same consequences BOLANOS would under the circumstances, i.e, the denial of her petition for PIP benefits.
BOLANOS’ FAILURE TO ATTEND AN EUO
The issue before the Court is whether a PIP insurer can permissibly deny PIP benefits to an insured or a person claiming benefits under the subject policy of insurance who fails to attend an EUO. Under the circumstances presented here, I answer the question in the affirmative.
It is well-settled that a contractual provision in an insurance policy requiring an insured to submit to a sworn statement is a condition precedent to maintaining suit for breach of the insurance policy. See Southern Home Ins. Co. v. Putnal, 49 So. 922, 932 (Fla. 1909); Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300 (Fla. 4th DCA 1995) (reaffirming Southern Home Ins. Co. and holding that the policy provisions requiring an insured to submit to an examination under oath are conditions precedent to suit). This is the law in the Third District as well. See, e.g., Stringer v. Fireman’s Fund Insurance Company, 622 So.2d 145 (Fla. 3d DCA 1993) (failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay); Riggins v. American Reliance Insurance Company, 604 So.2d 535 (Fla. 3d DCA 1992) (insured absolutely required under the contract of insurance to submit to examination under oath when requested by an insurer in a claim under an insurance policy providing for such a requirement); De Ferrari v. Government Employees Insurance Company, 613 So.2d 101 (Fla. 3d DCA 1993) (insurer’s request that insured submit to a medical examination is a condition precedent to coverage).
I find the most recent Third District opinion in United Automobile Ins. Co. v. Custer Medical Center, 32 Fla. L. Weekly D2105a, (Fla. 3rd DCA, September 5, 2007) (Motion for Rehearing denied), (Fla. 3rd DCA, Sept. 10, 2008) [33 Fla. L. Weekly D2146a] to be both binding and particularly instructive as to the issues in this case. In Custer, United Automobile Insurance Company sought review of a circuit court appellate division opinion that reversed a directed verdict rendered in United’s favor at the conclusion of the plaintiff-assignee Custer Medical Center’s case. Id. at *1. The trial court’s reason for directing the verdict in United’s favor was that the insured and assignor, Maximo Masis, failed to report for two consecutive independent medical examinations without explanation. Id. at *1. The insured was involved in an accident on January 1, 2002 wherein the insured sought treatment for his injuries and subsequently submitted these bills to his PIP insurer, United, for payment. Id. at *1. In response, United set the insured up for an IME and sent notice of the same via regular and certified mail. Id. at *1. The insured failed to appear. Id. at *1. United then set a second IME, which the insured again failed to attend. Id. at *1.
Three weeks later, United informed the insured’s counsel that it intended to deny the insured’s PIP claim for failing to appear for the two IMEs. Thereafter, the medical provider, Custer, initiated suit as the insured’s assignee, for nonpayment of PIP benefits. Id. at *1.
The Court in Custer began its reasoning by quoting Florida Statutes Section 627.736(7) (2006), which provides that:
(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. The costs of any examinations requested by an insurer shall be borne entirely by the insurer.
(b) . . . If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.
After reviewing Third District precedent, namely the Griffin v. Stonewall Ins. Co., 346 So.2d 97, 98 (Fla. 3d DCA 1977), the Custer court concluded that no reason or excuse for such refusal to appear was furnished at the time, nor was any reasonable excuse advanced before the trial court, and, thus, such failure on the part of the insured justified entry of summary judgment in favor of the insurer. Id. at *1-2.
The facts in Custer parallel the facts here. As in Custer, BOLANOS failed to appear for an EUO after being timely notified of same. STATE FARM, just like United, denied the PIP claim on this basis. I find that the fact that Custer involved two IME no-shows and that this case involves a no-show at an EUO does not alter the application of Custer to this case.
Moreover, Plaintiff, through its assignment of benefits from Bolanos, is subject to the terms of the insurance policy, which require that any person making a claim must submit to an Examination Under Oath. The record is clear that Bolanos failed to comply with these contractual terms and thus, under Custer, STATE FARM properly denied Bolanos and Plaintiff’s claim for PIP benefits.
At the hearing, counsel for Plaintiff argued that Bolanos was not a party to the contract of insurance and, therefore, was not bound by the terms and conditions of the contract of insurance. I reject Plaintiff’s specious argument, and find that STATE FARM’s insurance policy requires any person or Claimant to submit to an Examination Under Oath, and that such is a condition precedent to maintaining suit for breach of the insurance policy.
The authorities cited above are not only binding, but are dispositive of the issues here. Bolanos’ failure to appear for her Examination Under Oath without cause and without any explanation, warrants entry of judgment in favor of STATE FARM.
Accordingly, it is hereby
ORDERED and ADJUDGED:
That STATE FARM’s Motion for Final Summary Judgment is hereby GRANTED.
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FINAL JUDGMENT
Pursuant to the above Order granting STATE FARM’s Motion for Final Summary Judgment, Final Judgment is hereby entered in favor of STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, whose address is 3301 University Drive, Coral Springs, Florida 33065, and against DC HEALTH & REHAB CENTER, INC. a/a/o HILDA BOLANOS, whose address is 1900 Coral Way, Suite 300, Miami, FL 33145. Plaintiff, DC HEALTH & REHAB CENTER, INC. a/a/o HILDA BOLANOS, shall take nothing from this action, and Defendant, STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, shall go hence without day.
It is further,
ORDERED AND ADJUDGED:
That this Court reserves jurisdiction to tax Defendant’s attorneys’ fees and costs, if authorized by law.
