16 Fla. L. Weekly Supp. 897b
Online Reference: FLWSUPP 169JEUNE
Insurance — Personal injury protection — Examination under oath — Failure to appear — Where there was no contradictory evidence offered to establish confusion by staff or attorneys of law firm representing insured regarding notice of EUO sent by insurer, insurer’s motion for summary judgment based on failure to appear for EUO is granted
ADVANCED ORTHOPAEDICS INC. (Jean Jeune), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 56-08-CC-3923. May 28, 2009. Thomas J. Walsh, Jr., Judge. Counsel: Joseph G. Murasko, Vernis & Bowling of Palm Beach, P.A., North Palm Beach. William Finn, Orlando.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND CONTAINING FINAL JUDGMENT
COMES NOW, the Court having considered Defendant’s Motion for Final Summary Judgment, Affidavit in support thereof, certified copy of insurance policy and declarations page and, oral argument of both parties at the hearing conducted on May 21, 2009, rules as follows:
UNDISPUTED FACTS
1. It is undisputed that coverage for this patient was claimed under a contract of insurance issued to All SeasonCitrus Corp., 146 S. Cypress, Fellsmere, FL 32948 (Exhibit A to affidavit of Chris Keller).
2. It is undisputed the Defendant sent a Reservation of Rights letter to the Law Firm of Morgan & Morgan dated February 26, 2008, certified mail, with an executed return receipt apparently received February 27, 2008 (Exhibit B to affidavit of Chris Keller).
3. It is undisputed an additional letter was sent, also dated February 26, 2008 to the Law Firm of Morgan & Morgan, purporting to represent the patient Jean Jeorie. (Exhibit C to affidavit of Chris Keller).
4. It is undisputed a letter requesting an Examination Under Oath was sent to the Law Firm of Morgan & Morgan, dated April 11, 2008 and purporting to represent patient/claimant Jean Jeorie scheduling an Examination Under Oath for April 24, 2008. This letter was also sent certified mail return receipt and indicating a delivery date to Morgan & Morgan and a signature on or about April 14, 2008 (Exhibit D to affidavit of Chris Keller).
5. It is undisputed that patient Jean Jeorie did not appear for the Examination Under Oath of April 24, 2008 (Certificate of non-appearance by court reporter Jeanne Evans, Exhibit E to affidavit of Chris Keller).
6. It is undisputed that yet another letter was sent scheduling an Examination Under Oath, to the Law Firm of Morgan & Morgan, purporting to represent the patient/claimant Jean Jeorie and scheduling another Examination Under Oath for May 14, 2008. This letter was also sent certified mail return receipt requested and including a US Postal Service tracking confirmation with matching serial numbers indicating delivery on May 5, 2008. (Exhibit F to affidavit of Chris Keller).
7. It is undisputed that Jean Jeorie did not appear for the Examination Under Oath on May 14, 2008 according to the certificate of non-appearance by court reporter Karen Gottwald. (Exhibit G to affidavit of Chris Keller). Based on the foregoing Defendant denied coverage.
ANALYSIS AND LAW
8. Defendant moves for Final Summary Judgment in its favor for failure of the patient/claimant to comply with a condition precedent. Specifically, a request for a recorded statement and request for two Examination Under Oath.
9. The Defendant’s insurance contract issued to All SeasonCitrus Corporation provides in part, at page one:
“You and any person or organization claiming coverage as an insured must:
. . . .
Allow us to take signed and recorded statements, including sworn statements and examination under oath and answer all reasonable questions we may ask as often as we may ask as often as we may reasonably require.’
10. Defendant also relies upon the Fourth District Court of Appeal Decision of Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300 (4th District 1995) for the proposition that an examination under oath is a condition precedent and not merely a cooperation clause (in the latter event for which the carrier must demonstrate prejudice).
11. Defendant also relies upon the proposition that notice to the claimant/patient’s attorney is sufficient notice, citing to Alonso Langarica v. State Farm Mutual Automobile Insurance Company, 6 Fla. L. Weekly Supp. 469b (11th Judicial Circuit, Circuit-Appellate Division 1999) and cases cited therein including In Re Estate Brugh, 306 So.2d 599 (2nd District 1995); Cruise v. Graham, 622 So.2d 37 (4th District 1993); Borros v. Carter, 537 So.2d 1134 (3rd District 1989).
12. Plaintiff however contends there is a material issue of fact for the jury. Plaintiffs cites Haiman v. Federal Insurance Company, 798 So.2nd 811 (4th District 2001) for the proposition that summary judgment would be premature where there is at least some evidence the patient/claimant provided some assistance in the claims process and, has an explanation for his/her non-appearance with the request for the statement under oath.
13. Plaintiff also cites to Whitney v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 198a(Broward County 2008) for the proposition that summary judgment is premature where there is a factual issue as to whether the patient’s attorney received notice and; Alfonso Professional Med A/A/O Harold Ruiz v. State Farm, 15 Fla. L. Weekly Supp. 483b, for the proposition that summary judgment would be premature where the adjuster deposition revealed the insured attempted to provide a reason or excuse for failing to appear for the examination under oath.
14. The Court observes here the instant lawsuit was filed on behalf of the Plaintiff by the Law Firm of Morgan & Morgan and coincidentally, the letters of Reservation of Rights, letter requesting a recorded statement, letters requesting examinations under oath were likewise addressed to the Law Firm of Morgan & Morgan as the apparent attorney for the underlying claimant/patient.
15. Plaintiff’s counsel argues that there is ambiguity in the various spellings of the patient name in the various correspondence, billing and document of assignment. Specifically, one version of spelling appears to be Jean Jeorie or alternatively Jean Jeune.
16. The Court Grants Defendant’s Motion for Summary Judgment observing, under the case argued by Plaintiff of Haiman supra, that there was no affidavit or evidence offered by the patient or claimant as to why they did not appear; there was no evidence or affidavit offered by the law firm (coincidentally the same law firm for the healthcare provider/Plaintiff here) as to why their client did not appear or expressing confusion as to the identity of their client. Moreover, the facts in Haiman supra indicates Mr. Haiman did appear for his examination under oath and did produce significant documents.
17. In this case, there was no contradictory evidence offered as to any underlying confusion or lack of comprehension by the staff and attorneys at the Law Firm of Morgan & Morgan with respect to the notices to appear for statements under oath and request for recorded statements.
WHEREFORE, it is hereby Ordered and Adjudged, Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff, ADVANCED ORTHOPAEDICS INC. shall take nothing by this action and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence without day. The Court reserves jurisdiction to determine attorney’s fees and taxable costs to the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY.
