15 Fla. L. Weekly Supp. 282a
Insurance — Personal injury protection — Examination under oath — Failure to attend — Omnibus insured was not required by policy to attend EUO, and failure to attend, even if without reasonable excuse, cannot rise to level of defense to nonpayment of benefits
SOUTH FLORIDA PAIN & REHABILITATION, P.A. (a/a/o Hanna Giraldo) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-018454 COCE (52). October 16, 2007. Jay S. Spechler, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Diane Cullinan, Office of the General Counsel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE
THIS CAUSE came before the Court on October 16, 2007 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 September 8, 2005, Hanna Giraldo was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Giraldo sought treatment from various medical providers including the Plaintiff.
3. The Defendant received the bills as alleged in Plaintiff’s complaint.
4. The Defendant has asserted that the Plaintiff has failed to comply with conditions precedent in that Defendant alleges Plaintiff failed to attend two sworn statements on October 17, 2005 and October 19, 2005.
5. Plaintiff has moved for partial summary judgment alleging that the subject policy of insurance does not require this insured to attend an examination under oath.
6. The relevant portions of the subject policy upon which the defense rests are as follows:
Page 15, Part E Section I.: “Conditions:
Examination Under Oath: As a condition precedent to receiving Personal injury protection benefits, “you” must cooperate with “us” in the investigation, settlement or defense of any claim or suit, including submitting to an examination under oath by any person named by “us” when or as often as “we” may reasonably require at a place designated by “us” within a reasonable time after “we” are notified of the claim. Only the person being examined may be present during any examination.
Page 1, “Definitions”
Throughout this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household.
Page 2, “Definitions”
“Named insured” means the person or organization named in the Declarations; and if an individual shall include the spouse if a resident of the same household.
7. As noted in the Declarations Page attached to the deposition of the litigation adjuster (Exhibit A of Plaintiff’s Motion), the “named insured” is Gladys Peralta. On page 25, line 19 of the deposition, the litigation adjuster confirms Hanna Giraldo is an “omnibus” insured.
8. Hanna Giraldo, claiming under the subject policy as an omnibus insured, was not and is not the “named insured” as this term is used and defined in the subject policy.
9. Hanna Giraldo, as an omnibus insured claiming under the policy of insurance issued to Gladys Peralta, was not required by the policy to attend any examinations under oath. Her failure to appear at both of the two examinations requested and scheduled by the Defendant, even assuming arguendo that there was no reasonable excuse for not appearing, cannot as a matter of law be found to comprise the failure of a condition precedent and cannot rise to the level of a defense to nonpayment of the subject benefits. Physician’s First Choice Interpretation (Jaime Rodriguez) v. United Automobile Insurance Company, 10 Fla. L. Weekly Supp. 843d (Judge Peter B. Skolnik).
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the Defendant’s First Affirmative Defense of failing to appear at an Examination Under Oath. The only remaining issues for trial are: Defendant’s Second Affirmative Defense of IME cutoff based on the opinion of Dr. Glen Siegel DC and Defendant’s Third Affirmative Defense that the actual charges billed are above those customarily charged in the community.
