16 Fla. L. Weekly Supp. 960b
Online Reference: FLWSUPP 1610JOSE
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insured has presented competent evidence that due to misrouting of notice of EUO insured’s attorney did not become aware of EUO until he received letter denying benefits, and insured has otherwise cooperated with insurer’s claim processing request, insurer’s motion for summary judgment based on EUO no-show defense is denied
ADVANCE HEALTH CENTER, INC., A Florida Corporation (assignee of Joseph, Yolande), v. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-19045 CC 23 (01). August 11, 2009. Myriam Lehr, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Karen Trefzger, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (EUO NO-SHOW DEFENSE)
THIS CAUSE, came before the court for hearing on July 17, 2009 on Defendant’s Motion for Summary Judgment as to Defendant’s affirmative defense of failure to appear for a properly scheduled Examination Under Oath (“EUO”). The operative facts are as follows:
Factual Background: This is a P.I.P. insurance case. Defendant seeks final summary judgment asserting that the Plaintiff’s assignor, Yolande Joseph, failed to appear for 2 properly scheduled EUOs (both dates noticed on a single letter) and that submission to the EUO was a required condition of the policy. Plaintiff’s Counsel acknowledges receipt of the letter but has filed in opposition the affidavit of attorney David Bierman stating that the notification was inadvertently misrouted to the wrong suite in his office and that he was not aware of the EUO until he received the insurer’s denial letter (at which time he wrote the insurer advising of the error and requesting that the EUO be rescheduled). The insurer did not reschedule and seeks summary judgment finding that it has no further liability under the policy.
Legal Conclusions: It is well-settled that:
[a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is present for resolution by a jury.
Haiman v. Federal Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001); Hudson v. United Auto Ins. Co., 12 Fla. L. Weekly Supp. 833b (11th Jud. Cir. Appellate 2005).
Furthermore, established precedent in this circuit sets forth that the standard for summary judgment on a question of EUO no-show is not a strict liability standard. The court must consider more than just whether the insured received notice and did not appear. Additional factors such as whether there are valid excuses for non-attendance or whether the insured cooperated to some degree in other capacities are matters which must be considered by the court. Northeast Pain Management v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 545a (11th Jud. Cir. Appellate 2006). In the instant case, the insured has presented competent record evidence that she had an excuse for non-attendance and that she otherwise cooperated with the insurer’s claims processing request.
ACCORDINGLY it is hereby ORDERED & ADJUDGED based on the foregoing analysis of fact and law that Defendant’s motion for Summary Judgment based upon Defendant’s affirmative defense of EUO no-show is DENIED.
