15 Fla. L. Weekly Supp. 723a
Insurance — Personal injury protection — Examination under oath — Failure to attend EUO was not unreasonable where it is undisputed that insurer did not provide copy of correct insurance policy and declarations page to insured or her counsel prior to or during suit, and insurer made no effort to provide correct policy and reschedule EUO, despite request by insured’s counsel that EUO be reset for mutually convenient date upon receipt of policy — Directed verdict granted in favor of medical provider
HIALEAH WELLNESS & REHAB CENTER, AS ASSIGNEE OF MARIA CLARK, Plaintiff(s), v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 04-1622 SP26 (4). March 28, 2008. Gloria Gonzalez-Meyer, Judge. Counsel: Kenneth B. Schurr, Coral Gables. Camille Miller-White, Oliver Wragg, Armando Alan Alvarez.
ORDER GRANTING DIRECTED VERDICT
This matter came before the Court on February 4, 2008 for trial by jury on Plaintiff’s claim for PIP benefits. Prior to suit, Plaintiff submitted medical bills to Defendant in the amount of $3,735 for services rendered between March 25, 2003 through June 2, 2003 for an automobile accident that occurred on March 11, 2003.
Prior to the trial, this Court entered partial summary judgment on the “relatedness” and “medical necessity” of the claimed medical expenses. However, the parties disputed the “reasonable” value of those services. Plaintiff contended that those services were valued at $3,735 while Defendant unilaterally reduced those expenses to $3,605.43. At trial, Plaintiff stipulated to Defendant’s unilateral reduction of the medical expenses and therefore the “reasonableness” of the claimed expenses was no longer an issue for trial. Accordingly, the issues remaining for trial pertained to Defendant’s defense that the insured, Maria Clark, unreasonably refused to submit to an examination under oath (EUO).
During the trial, the Defendant called several witnesses, including its litigation adjuster Eric Toledo, its underwriter Jorge De La O, and the attorney whom represented the claimant/insured prior to this action, Kenneth Schurr, Esq.
The testimony reflected that the Defendant and the insured (via attorney Schurr) exchanged multiple letters. The first letter, dated March 25, 2003, was from Attorney Schurr to the Defendant advising of the representation and demanding a copy of the insurance policy issued to Maria Clark. Then, on April 1, 2003 the Defendant issued a sworn insurance policy disclosure letter which stated that the policy which was sold to Maria Clark was “Policy Jacket Edition UAIC 200 (09/02).”1Attached to the April 1, 2003 letter was a Declarations Page which indicated that the policy edition issued to Maria Clark was “Policy Jacket UAIC 200 (10/00).”
On May 6, 2003, the Defendant then sent a notice to the insured’s counsel demanding that Maria Clark submit to an EUO on May 15, 2003 or on May 21, 2003. The date and time of the EUO was not coordinated and Defendant made no effort to coordinate the EUO.
Upon receipt of the May 6, 2003 EUO notice, the insured through counsel, advised the Defendant on May 12, 2003 that the policy jacket edition identified in the Declarations Page supplied on April 1, 2003 did not match the policy jacket edition set forth in the April 1, 2003 sworn policy disclosure letter. The insured, through counsel, requested that Defendant provide the correct copy of the insurance policy and that upon doing so, Defendant should contact the insured’s counsel to re-schedule the EUO for a mutually convenient date.
Then, on May 28, 2003, Defendant again wrote to the insured, and once again, the Defendant provided a sworn insurance policy disclosure letter which stated that the policy which was sold to Maria Clark was “Policy Jacket Edition MAIC 200 (09/02).”Attached to the May 28, 2003 letter was copy of the Declarations Page which indicated that the policy edition issued to Maria Clark was “Policy Jacket MAIC 200 (10/00).”
Upon receipt of the May 28, 2003 policy disclosure letter, the insured through counsel, wrote to Defendant on June 2, 2003 and advised Defendant again that the Defendant has twice provided a policy disclosure letter identifying the version or edition of the policy that was issued to Maria Clark as being “UAIC 200 (09/02)” while the attached Declarations Page identified the policy sold to Maria Clark as “UAIC 200 (10/00).” The insured demanded an explanation for the inconsistencies between the policy jacket editions and the Declarations Pages.
The Court also notes that the policy provided by Defendant prior to suit, under the heading “Declarations” specifically stated that the Declarations Page was a material part of the policy.
Rather than explain the inconsistencies between the sworn Policy Disclosure statement and Declarations Pages, the Defendant wrote to the insured on June 20, 2003 and advised her that her claim was denied because she did not attend the May 15, 2003 or May 21, 2003 EUO appointment. Despite the insured’s May 12, 2003 request that the EUO be reset for a mutually convenient date and time, Defendant made no effort to reschedule the EUO.
On June 24, 2003, the Defendant wrote to the insured and advised that the confusion between the policy referenced in the Declarations Page (i.e. “UAIC 200 (10/00)”) versus the policy referenced in Defendant’s sworn Policy Disclosure Statement (which referred to “UAIC 200 (09/02)”); and versus the insurance policy attached to that letter (which also referred to “UAIC 200 (09/02)”), was caused by a “computer error.” At trial, neither the Defendant’s corporate representative/litigation adjuster Mr. Eric Toledo, nor the Defendant’s Underwriter, Jorge De La O, were able to provide any details nor an explanation regarding this “computer error.” The Defendant’s June 24, 2003 letter referencing the “computer error” came after the EUO dates had passed and was the very first time that the Defendant made any effort to reconcile the obvious inconsistencies in the policy Declarations Page, sworn policy disclosure, and the insurance policy itself. Despite this “computer error”, Defendant still made no effort to reset the EUO.
On June 30, 2003 and in light of the newly discovered “computer error”, the insured again requested a certified copy of the policy along with all endorsements and the proper Declarations Page. On July 8, 2003, the Defendant sent another sworn policy disclosure statement, which, once again, referenced a “UAIC 200 (09/02)” policy jacket edition at the bottom of the page; and which attached a copy of an insurance policy which identified itself as the “UAIC 200 (09/02)” version of the policy, and attached to it was another letter from Defendant which, once again, indicated that the policy which was sold to the insured was “UAIC 200 (10/00).” However, this time, the Declarations Page was signed by Ms. Shari Costaney and a line was drawn through the Declarations Page text which read “UAIC 200 (10/00).”
At trial, the Defendant’s underwriter, Jorge De La O, testified that the Defendant issued a policy to Maria Clark and that the policy issued to Maria Clark was the version identified as “UAIC 200 (09/02).” During his testimony, Mr. De La O was presented with another copy of the “(09/02)” policy and he was asked to compare the “(09/02)” version in his hands with the policy he had just declared to be the policy which was allegedly issued to the insured. After comparing them both, Mr. De La O stated that there appeared to be two different versions of the “(09/02)” policy. Mr. De La O was unable to explain why there were two versions of that policy. In fact, it was not until he testified at trial that Mr. De La O even knew that there existed two different versions of the “(09/02)” policy.
Shortly thereafter, Mr. De La O testified that neither version of the “(09/02)” policy was a true and correct copy of the policy issued to Ms. Maria Clark. He then testified that the policies attached to the multiple pre-suit sworn policy disclosure statements (i.e. May 28, 2003 and July 8, 2003) were not true and correct copies of the actual policy issued to Maria Clark. He also testified that the policy attached to his own sworn affidavit — filed with this Court in support of Defendant’s motion for summary judgment — was not a true and correct copy of the policy issued to Maria Clark. Instead, Mr. De La O held up, yet, a third version of the “(09/02)” insurance policy and stated that he brought that copy from his office and testified that the policy he held in his hands was the real policy issued to Maria Clark. Mr. De La O further testified that the insurance policy he brought with him from his office, which he stated was the real policy issued to Maria Clark, was never provided to Maria Clark (or her counsel) prior to the time suit was filed. It was also undisputed that the Defendant never provided Ms. Clark or her counsel with a copy of the policy referenced in the Declarations Page (i.e. “UAIC 200 (10/00)).”
Based on the foregoing, it is undisputed that, despite multiple requests prior to the initiation of this action, the Defendant never provided the insured with a copy of the insurance policy issued to her. It is also undisputed that the Defendant never provided the insured (or counsel) with a copy of the real insurance policy during suit. It is further undisputed that the sworn policy disclosure statements issued by Defendant prior to suit were not accurate because they attached the wrong policy. Moreover, it is undisputed that the two affidavits filed in this case during suit (one by Eric Toledo and one by Jorge De La O), which attempted to authenticate an insurance policy as being a true and correct copy of the real policy issued by Defendant to Maria Clark, were equally defective because the policy attached to those affidavits was indisputably the wrong policy once again.
Under Florida law, an insurer is required to provide a copy of the insurance policy to the insured upon request. See Fla. Stat. 627.4137. The insured herein repeatedly requested the policy, but it was effectively never provided to the insured and the insured is not required to guess nor assume the contents of the real policy.
In United Automobile Ins. Co. v. Rousseau, 682 So. 2d 1229 (Fla. 4th DCA 1996), the insured repeatedly requested a copy of the insurance policy, but United Auto failed to provide same. The Rousseau court held that where it was undisputed that the insurer failed to provide a copy of the insurance policy as required by Fla. Stat. 627.4137(1)(e), which mandates that an insurer “shall provide” a copy of the policy “within 30 days of the written request of the claimant”, the insured was not required to prove compliance with the condition precedent regarding an examination under oath.
Based on the testimony of the witnesses, the stipulations of the parties, the undisputed evidence that Defendant never provided a copy of the insurance policy to the insured/claimant prior to suit; coupled with the fact that the claimant (through counsel) requested that the EUO be reset for a mutually convenient date upon receipt of the policy, the fact that Defendant made no effort whatsoever to reset the EUO despite having failed to provide the requested policy, this Court determined that Maria Clark’s failure to attend the May 15, 2003 and May 21, 2003 examination under oath was not unreasonable as a matter of law under the circumstances of this case.
Accordingly, this Court hereby GRANTS Plaintiff’s motion for directed verdict in its favor and against Defendant. Plaintiff’s motion for summary judgment as to the reasonableness, relatedness and medical necessity of the claimed medical expenses was granted prior to the start of trial. There are no other issues for the trier of fact to resolve. Accordingly, the Plaintiff is directed to submit a proposed Final Judgment.
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1There was a dispute regarding whether or not a copy of an insurance policy was attached to this letter. The attorney testified that he did not receive a copy of the policy with this letter, but that instead, he received the sworn disclosure letter with a copy of a declarations page. Whether the policy was attached or not is not material in light of subsequent findings.
