15 Fla. L. Weekly Supp. 826b
Insurance — Personal injury protection — Independent medical examination — Examination under oath — Failure to attend — Where insurer timely mailed notices of IME and EUO to address provided by insured, but from which insured had moved without notifying insurer of new address or leaving forwarding address, insured is presumed to have received notices — Where insured offered no explanation for nonattendance at IME and EUO to insurer or trial court, insurer properly denied assignee/medical provider’s claim for PIP benefits
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., a/a/o JUAN PABLO LABASTIDA, Plaintiff, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-14078 SP 25 (02). May 27, 2008. Lawrence D. King, Judge. Counsel: Bernard Butts, for Plaintiff. Edward Winitz and Alejandro Perez, 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 failure by Plaintiff Millennium Diagnostic Imaging Center, Inc. a/a/o Juan Pablo Labastida to submit any affidavits or authorities in opposition to STATE FARM’ s motion, and having heard the arguments of both parties at a hearing dated April 30, 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 Plaintiff, MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC. (“Plaintiff’ or “MILLENNIUM”), seeking recovery of unpaid Personal Injury Protection (PIP) benefits on behalf of JUAN PABLO LABASTIDA (LABASTIDA) via an assignment of rights and arising out of treatment rendered on or about May 5, 2005.STATE FARM’s Notices to LABASTIDA
STATE FARM received the bill for services rendered to LABASTIDA on June 10, 2005. On June 7, 2005, STATE FARM, through Medical Service Consultants, Inc., timely noticed LABASTIDA, for an Independent Medical Examination (IME) to take place on June 22, 2005. This notice was sent via both regular mail and via certified mail, return receipt requested to the address provided to STATE FARM by LABASTIDA and MILLENNIUM through counsel. Although the certified mail was returned to STATE FARM unclaimed, the notice sent by regular mail was not returned to the Defendant or to Medical Service Consultants, Inc. LABASTIDA ultimately failed to appear for the IME and gave no reason or excuse for this failure.
Also, on June 7, 2005, STATE FARM, through its counsel, timely noticed LABASTIDA via regular and certified mail, for an Examination Under Oath to take place on June 24, 2005. Just as before, the certified mail went unclaimed, but the regular mail was not returned. LABASTIDA failed to appear for this EUO as well. Upon receipt of the unclaimed letters, STATE FARM learned that LABASTIDA no longer resided at the address he provided, but LABASTIDA did not leave a forwarding address.
Thereafter, on July 25, 2005, LABASTIDA sent STATE FARM a demand letter requesting $1,180.00 in unpaid PIP benefits. On August 10, 2005, STATE FARM denied LABASTIDA’s demand for PIP benefits due to his failure to submit to a timely scheduled IME and an EUO. Through independent efforts, STATE FARM ultimately did locate an address for LABASTIDA and on September 28, 2005, STATE FARM, through its counsel, again noticed LABASTIDA for an EUO on October 19, 2005. This notice was received by Cyn Schomp on October 4, 2005 at LABASTIDA’s address, but LABASTIDA again failed to appear for the EUO without excuse or explanation.
On June 18, 2007, LABASTIDA sent a second demand letter requesting $1,180.00 in benefits. STATE FARM rejected this demand via a July 5, 2007 letter.Evidence Submitted by STATE FARM inSupport of Summary Judgment
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 these records show that neither LABASTIDA nor anyone purporting to represent him contacted STATE FARM with any excuse for LABASTIDA’s failure to attend his IME. Mr. Rogers opined that this failure to attend was unreasonable. Plaintiff elected not to rebut this opinion.
EXHIBIT B — Affidavit of Bertha Ball In Support of Defendant’s Motion for Final Summary Judgment, dated March 11, 2008 — In this affidavit, Ms. Ball explained that she is employed by Medical Service Consultants, Inc. and that on June 7, 2005, she handled the scheduling and notice of LABASTIDA’s June 22, 2005 IME. She explained that it is standard procedure at Medical Service Consultants, Inc. to mail out notice the same day papers are received and to retain copies of same in a file as a business record maintained in the regular course. Ms. Ball also explained that the notice was placed in the mail according to standard procedure as well, which includes both regular mail and certified mail, return receipt requested. Ms. Ball explained that while the certified mail was unclaimed, the regularly posted notice was not returned to sender. Ms. Ball also explained that she never received any communication from LABASTIDA or anyone purporting to represent LABASTIDA explaining his failure to appear at the IME.
EXHIBIT C — LABASTIDA’s State Farm car policy
EXHIBIT D — LABASTIDA’s bill for 1180.00 for medical services rendered.
EXHIBIT E — Notice to LABASTIDA of the June 22, 2005 IME, dated June 7, 2005.
EXHIBIT F — Notice to LABASTIDA of the June 24, 2005 EUO, dated June 7, 2005.
EXHIBIT G — Copy of returned mail indicating LABASTIDA’s address change
EXHIBIT H — Notice to LABASTIDA of second EUO set for October 19, 2005, dated September 28, 2005.
EXHIBIT I — Demand Letter, dated July 25, 2005
EXHIBIT J — Denial of July 25, 2005 demand
EXHIBIT K — Demand Letter, dated June 18, 2007
EXHIBIT L — Denial of June 18, 2007 demand.
I.In contrast, LABASTIDA did not submit any written opposition to STATE FARM’s motion, did not submit any documents or affidavits, and only appeared at the April 30, 2008 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’sor 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;
ANALYSISStandard 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 [Editor’s note: Correction at 31 Fla. L. Weekly S212a], 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. 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 bases set forth below, I find that STATE FARM’s motion should be granted.
The Notice Afforded to Labastida and the Mail Rule
The record is clear that STATE FARM scheduled the 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 received notice of Plaintiff’s claim on June 10, 2005 and set an IME for June 22, 2005 and an EUO for June 24, 2005. I find that the notice afforded to LABASTIDA was timely.
At the hearing, counsel for Plaintiff argued that the mail rule does not apply because the mail was sent to the wrong address and that as a result, the presumption of receipt created by the mail rule is rebutted. Getelman v. Levey, 481 So.2d 1236, 1239 (Fla. 3d DCA 1985) (citing Brown v. Giffen Industries. Inc., 281 So.2d 897 (Fla.1973)). I reject this argument for two reasons. First, the record reflects that the address utilized by STATE FARM to provide notice to LABASTIDA is an address that was provided to STATE FARM by LABASTIDA and/or MILLENNIUM, either directly or through counsel. It was incumbent upon LABASTIDA to keep STATE FARM informed of his address, and I find that the failure to do so, either by LABASTIDA, MILLENNIUM, or counsel, was unreasonable. Second, while Plaintiff made arguments against application of the mail rule, Plaintiff did not actually present any evidence to counter the application of the mail rule. As such, I find that STATE FARM made a timely attempt to notice LABASTIDA for his IME and EUO, and I further find Plaintiff failed to present any evidence to rebut the presumptive application of the mail rule.MILLENNIUM Stands in the shoes of LABASTIDA
MILLENNIUM “stands in the shoes” of LABASTIDA 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, LABASTIDA breached a condition precedent to coverage under the policy and, therefore, MILLENNIUM, because they stand in the shoes of LABASTIDA, must necessarily face the same consequences LABASTIDA would under the circumstances, i.e, the denial of his petition for PIP benefits.LABASTIDA’s failure to attend an IME and EUO
The issue before the Court is whether a PIP insurer can permissibly deny PIP benefits to an insured who fails to attend an EUO and an IME. Under the circumstances presented here, I answer that 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 CA 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, Case Number 32 Fla. L. Weekly D2105a, (Fla. 3rd DCA, September 5, 2007) 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 “[n]o 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, LABASTIDA failed to appear for an IME (and an EUO) after being notified of same. STATE FARM just like United denied the PIP claim on this basis. I find that the fact that Custer involved 2 IME no-shows and that this case involves a no-show at an IME and an EUO does not alter the application of Custer to this case. The striking similarity of Custer to the present case leads me to conclude that the reasoning in Custer is controlling. LABASTIDA failed to report to a duly noticed IME and EUO. The address utilized to provide LABASTIDA with notice was an address provided by Plaintiff and its counsel. Plaintiff never provided any information to STATE FARM updating its records and offered no explanation for LABASTIDA’s non-attendance, not even in response to STATE FARM’s summary judgment motion. Moreover, MILLENNIUM, through its assignment of rights from LABASTIDA, is subject to the terms of the insurance policy, which require that “[a]ny person making a claim . . . be examined by physicians chosen and paid for by” STATE FARM. The policy also provides that any person making a claim must submit to an examination under oath. The record is clear that LABASTIDA failed to comply with these contractual terms and thus, under Custer, STATE FARM properly denied LABASTIDA’s claim for PIP benefits. Accordingly, STATE FARM’s motion for final summary judgment is granted.
The authorities cited above are not only binding, but are dispositive of the issues here. LABASTIDA’s refusal to appear 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.
__________________
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 MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC. a/a/o Juan Pablo Labastida, whose address is 434 SW 12 Avenue, Suite 101, Miami, FL 33135. Plaintiff, MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC. a/a/o Juan Pablo Labastida 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.
