15 Fla. L. Weekly Supp. 746a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer did not inform insured or medical provider that it was asserting EUO no-show defense until four years after alleged no-show, insurer waived defense
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Sadinet Fertilien), vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-10152 COCE (55). April 22, 2008. Sharon L. Zeller, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Catherine L. Massard, Office of the General Counsel of United Automobile Insurance Company; and Heather Burns, Houck Anderson PA, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE
THIS CAUSE came before the Court on March 31, 2008 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 October 31, 2001, Sadinet Fertilien was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Fertilien sought treatment from various medical providers including the Plaintiff.
3. The subject insurer received bills on December 12th, 2001 from Natural Health Clinic as well as other medical providers. The subject insurer received the bill from the Plaintiff on April 1, 2002.
4. United Automobile Insurance Company alleges that Examinations under Oath were set for February 5, 2002 and March 1, 2002. The scheduling notices were allegedly sent to the patient and the patient’s attorney.
5. Defendant never issued any correspondence to the patient or her attorney that it was denying the bill based on a failure to attend an Examination under Oath.
7. The Plaintiff, NDNC Neurological Treatment Centers, Inc. through her attorney submitted a pre-suit Demand Letter which was received by the Defendant on June 23, 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 adequately respond. Defendant’s litigation adjuster with the most knowledge of the claim testified as follows in deposition:
Q: Based on your review of the file, was the insured’s best interests served by United not sending an explanation of benefits denying the claim for failing to appear at an examination under oath?
A: You’re asking me what my opinion is again, and I’m not here to tell you what my opinion is. I’m just here to tell you that, no there was no explanation of benefits sent to the claimant or the claimant’s attorney with reference to the EUO no-show.
9. Over 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 for the first time.
10. Plaintiff affirmatively asserted waiver in its reply. Waiver is defined as the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right. Thomas N. Carlton Estate v. Keller, 52 So.2d 131, 133 (Fla. 1951); see Miracle Center Assoc. v. Scandinavian Health Spa, 889 So.2d 877, 878 (Fla. 3d DCA 2004); Miami Dolphins, Ltd. v. Genden & Bach, P.A. and Ed Gorman, 545 So.2d 294, 296 (Fla. 3d DCA 1989); Singer v. Singer, 442 So.2d 1020, 1022 (Fla.3d DCA 1983). A party can waive any contractual, statutory or constitutional right. United Automobile Insurance Company v. Eduardo J. Garrido D.C., P.A., (Apolonio Chavez), (11th Judicial Circuit, Appellate Ct. 2008) citing Thomas N. Carlton Estate, 52 So.2d at 133; Miami Dolphins, Ltd., 545 So.2d at 296. A party may waive any rights to which it is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished. United Automobile Insurance Company v. Eduardo J. Garrido D.C., P.A. (Apolonio Chavez) citing Hammond v. DSY Developers, LLC, 951 So.2d 985, 988 (Fla. 3d DCA 2007); Torres v. K-Site, 500 Assoc., 632 So.2d 110, 112 (Fla. 3d DCA 1994).
11. Since receiving the Plaintiff’s claim and prior to the filing of this lawsuit, the Defendant did not adequately notify the Plaintiff as to why it would not pay the claim. The Defendant never notified the patient or the patient’s attorney that it was denying the claim for the alleged EUO no-show.
12. Defendant’s failure to notify the patient or the claimant of the alleged EUO no-show constitutes a waiver of the defense. Tiedtke v. Fidelity & Casualty Company, 222So.2d 206 (Fla. Supreme Ct. 1969). In that case, the court held that if “an insurer intends to stand on any forfeiture reservation, it should inform the insured as soon as practicable after it has ascertained facts upon which it bases its forfeiture”. Id. at 209. In the Tiedtke case, the insurer informed an insured a year and a half after it had provided a defense without disclaiming liability, that is was now denying coverage. Countyline Chiropractic Center, Inc. (a/a/o Deja Carroll) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 191b (17th Judicial Circuit, 2005. Hon. Robert W. Lee) citing Tiedtke. Likewise, United Automobile’s conduct of never informing the patient or claimant that it was asserting an EUO no-show defense until four years after the alleged EUO no-show is unreasonable and untimely and therefore, ineffective as a matter of law. An insurer can waive defenses through its conduct. Kendall South Medical Center (a/a/o Nelson Esteves) v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 91b (11th Judicial Circuit, 2007. Hon. Robin Faber), Howard J. Gelb M.D. P.A. (Noreen Schact) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 103b (17th Judicial Circuit, 2006. Hon. Jay S. Spechler), Pro Imaging (Elba Garcia) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 982a (17th Judicial Circuit, 2007. Hon. Martin R. Dishowitz), NDNC Neurological Treatment Centers, Inc. (a/a/o Mercedes Medina) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 496b (17th Judicial Circuit, 2007. Hon. Jay S. Spechler).
13. 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).
14. 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.
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the Defendant’s First and Third Affirmative Defenses of failing to appear at an Examination Under Oath.
