16 Fla. L. Weekly Supp. 106b
Insurance — Personal injury protection — Examination under oath — Failure to attend — Insurer did not waive EUO no-show defense by failing to state defense on explanation of benefits where failure to attend EUO could not have been cured even if insurer had given notice
CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A., a/a/o JUAN CARNEJO-LOPEZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 07-020922 COCE 51. October 31, 2008. Martin R. Dishowitz, Judge. Counsel: Kathy Eikosidekas, Marks & Fleisher, for Plaintiff. Gweneth M. Brimm, Daniels Kashtan Downs Robertson & McGirney, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO APPEAR FOR EXAMINATION UNDER OATH
THIS CAUSE having come before this Court on October 7, 2008, upon the Defendant’s Motion for Summary Judgment for Failure to Appear for Examination Under Oath, and the Court having heard the arguments of the parties and being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that:
Defendant’s Motion for Summary Judgment for Failure to Appear for Examination Under Oath is hereby GRANTED.
Defendant has established and the Plaintiff has failed to rebut, that the insured, Juan Carnejo-Lopez breached the policy of insurance by failures to appear for two (2) properly scheduled examinations under oath (EUO).
The court is not persuaded by Plaintiff’s argument that the Defendant waived their EUO No Show defense, because it was not stated on the explanation of benefits letter the Defendant submitted to the Plaintiff along with the Defendant’s tender of a reduced payment. The Court finds, based upon its reading of United Auto. Ins. Co. v. Garrido, 2008 WL 2811804 (Fla. App. 3 Dist.), 33 Fla. L. Weekly D1846, there is no waiver of an affirmative defense when the failure is not a failure that can be cured based on notice. In the instant case, the insured, Juan Carnejo-Lopez’s failure to appear for the EUO could not have been cured even if the Defendant’s explanation of benefits letter states same. Consequently, since the Plaintiff filed nothing to rebut the Defendant’s claim that Juan Carnejo-Lopez’s EUO no show was not willful, or that he in fact appeared for the EUO, Defendant’s Motion for Summary Judgment is hereby granted in favor of Defendant and Plaintiff shall go hence without day.
