16 Fla. L. Weekly Supp. 472a

Online Reference: FLWSUPP 165ADRIE

Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer failed to schedule EUOs within 30 days of receiving notice of claim and did not have reasonable proof that it was not responsible for payment of claim, insured’s failure to attend EUOs did not give insurer right to deny benefits — Insured had no duty to attend second set of EUOs scheduled after insurer cut off benefits based on failure to attend independent medical examinations — Insured’s failure to attend IMEs did not give insurer right to deny benefits where all dates of service predate missed IMEs — Notice of loss — Where insurer received bills 32 days after start of treatment but 41 days after accident, question of whether provider failed to properly notify insurer of existence of claim or withheld notice of loss is question of fact for jury — Affidavit of peer review physician swearing to “best of his knowledge” is defective, but may be corrected — Hearing on motion for summary judgment on issue of reasonableness, relatedness and necessity of treatment is continued to address whether peer review affidavit that is not based on all medical records should be stricken where insurer claims that records allegedly omitted from review were not furnished by provider

CORAL LAKES CHIROPRACTIC, INC., (Kerline Adrien, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-05419COCE(51). February 18, 2009. Martin Dishowitz, Judge. Counsel: Cindy A. Goldstein, Cindy A. Goldstein, P.A., Coral Springs. Fresner Petion, Office of General Counsel, Coral Gables.

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having been reviewed by the Court on Plaintiff’s Motion For Summary Judgment, it is hereby,

ORDERED AND ADJUDGED:

1. This is an action for unpaid personal injury protection benefits filed by the Plaintiff on December 14, 2007, in the amount of $4,068.00 for dates of service 12/8/05 to 1/24/06.

2. Defendant filed its Answer and Affirmative Defenses under a certificate of service dated February 14, 2008. Paragraph 1 of the affirmative defenses provides, “As for its first affirmative defense, Defendant states that the Claimant failed to submit to 2 properly scheduled and noticed examination under oath (EUO) on 6/6/06 and 6/20/06. Accordingly, Claimant failed to fully cooperate and failed to attend scheduled sworn statement of the policy which is not only a condition precedent to receiving personal injury protection benefits but also a condition precedent to filing suit.”

3. Defendant responded to Plaintiff’s Request to Produce by providing adjuster claim notes generated in the ordinary course of business and prior to anticipation of litigation. The adjuster claim notes state that the accident at issue occurred on November 29, 2005, and was reported on January 6, 2006. It also notes that it received Plaintiff’s first set of bills for dates of service 12/8/05 to 12/21/05 in the amount of $2,215.00 on January 9, 2006. Therefore, Defendant received written notice of a covered loss no later than January 9, 2006.

4. Defendant allegedly first sent notice of an Examination Under Oath to the claimant on February 27, 2006, for said examinations to take place on March 16, 2006, with an alternate date of March 20, 2006. The claim notes provided in response to the Request to Produce and attached as Exhibit A also state “3/29/06 — Two EUO no show dated 3/16/06 and 3/20/06. EUO request mail returned stated that may use apartment #. I believe maybe the claimant did not receive[d] the EUO request letter. Called claimant she stated she did not receive[d] the letter.” United Automobile knew it did not properly place the claimant on notice of an EUO as early as March 29, 2006. It was not until May 31, 2006, two months later, that United Automobile attempted to set Kerline Adrien for an examination under oath to take place on June 16, 2006, and June 20, 2006.

5. A motion for summary judgment is appropriate when the moving party has shown that there are no issues of material fact, and that all is left is a question of law. Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999). It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985).

6. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. Amador v. United Automobile Insurance Company, 748 So.2d 307 (Fla. 3rd DCA 1999) (citing Fortune v. Pacheco, 695 So.2d at 395 (quoting Dunmore, 301 So.2d at 502)); Crooks, 659 So.2d at 1268-69. See also United Auto. Ins. Co. v. Rodriguez, 746 So.2d 112 (Fla. 3d DCA 1999); Perez v. State Farm Fire and Cas. Co., 746 So.2d 1123 (Fla. 3d DCA 1999). The insurer cannot use its investigative rights to extend the 30-day period without reasonable proof that it is not responsible for the claim. Amador v. United Automobile Insurance Company,748So.2d 307 (Fla. 3rd DCA 1999).¹

7. Accordingly, contrary to United Auto’s argument that the Plaintiff standing in the claimant’s shoes was barred from filing suit without first submitting to an examination under oath, upon expiration of the 30-day period, the insurer is itself in breach of the contract and may therefore, not deny an insured the right to access the courts for purposes of enforcing the PIP statute. Id. at 309. See also Ivey v. Allstate, 774 So.2d 679 (Fla. 2000) (citing Amador); January v. State Farm, 838 So.2d 604 (Fla. 5th DCA 2003) (citing Amador). See also South Florida Institute of Medicine (a/a/o A. Morales) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 365b (Miami-Dade Cty. 2006), Quintana Chiropractic Center, Inc. (a/a/o Luis Perez) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 244b (Miami-Dade Cty. 2004) [where insurer failed to schedule EUO within 30 days of receiving notice of claim and did not have any reasonable proof that it was not responsible for payment of claim, insured’s failure to attend EUOs scheduled outside 30-day statutory period did not give insurer the right to deny benefits to insured]; County Line Chiropractic Center, Inc. (a/a/o Deja Carroll) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 191b (Broward Cty. 2005) [No breach of contract exists by the insured for failing to attend an EUO requested by insurer more than thirty days after receipt of notice of claim]. This Court does not find that it is a condition precedent that an insured first submit to an EUO to recover PIP benefits.

8. The second set of EUO’s were scheduled for June 16, 2006, and June 20, 2006. However, on April 10, 2006, United Automobile Insurance Company sent correspondence to Kerline Adrien, advising her that she failed to comply with the terms and conditions of the subject insurance policy. The letter further advises that Defendant will not pay for any medical bills after 3/11/06. The Defendant’s letter dated April 10, 2006, advising Kerline Adrien that United Auto will not be paying for medical treatment, constitutes a letter of repudiation of the insurance contract between United Automobile and any insured. South Miami Health Center (a/a/o Lazaro Alcarraga) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 826a (Miami-Dade Cty. 2006) (citing Peachtree v. Walden, 759 So.2d 7 (Fla. 5th DCA 2000)). Therefore, Kerline Adrien had no duty under the insurance policy to attend the EUO’s of June 16 and June 20. Id. (citing United Automobile Insurance Company v. Cicero Ortho-Med Center, Inc., 12 Fla. L. Weekly Supp. 321a (Florida Eleventh Judicial Circuit, Appellate Capacity 2005).

9. Paragraph 2 of Defendant’s Affirmative Defenses also provides, “As and for its second Affirmative Defense, Defendant states that Claimant, Kerline Adrien, has unreasonably failed and/or refused to attend 2 independent medical examination(s) scheduled by Defendant, or on Defendant’s behalf, on 3/11/06 and 3/15/06. As such, Assignor/Plaintiff have failed to comply with conditions precedent and Defendant is not obligated to pay the medical charges received by Defendant subsequent to Assignor’s non-attendance. Assignor’s failure and/or refusal also constitutes a violation of Florida Statute 627.736 and of the policy of insurance.”

10. Plaintiff is entitled to summary judgment on the failure to attend CME/IME. All treatment was performed and all medical bills were received prior to the cut-off for the failure to appear. The appointments with Dr. Frachtman were for March 11 and March 15, 2006. According to the PIP log provided in response to Request to Produce, the medical bills at issue were received February 1, 2006. Therefore, all dates of service performed by the Plaintiff and as pled in the Complaint are pre-CME/IME cut-off and therefore, Plaintiff is entitled to judgment as a matter of law as to this affirmative defense.

11. Paragraph 4 of Defendant’s affirmative defenses states that the Plaintiff failed to properly notify Defendant of the existence of the claim, written notice of the accident as soon as practicable, that Plaintiff unreasonably withheld notice of the claim from Defendant, and therefore, Plaintiff did not comply with terms and conditions of the policy. This accident occurred on November 29, 2005. Plaintiff began treating the claimant on December 8, 2005 and timely mailed the first set of bills, giving Defendant written notice of a covered loss to Defendant on December 29, 2005. According to the PIP log generated by Defendant, the bills were received on January 9, 2006. Plaintiff argues that Defendant has no factual basis to argue that notice of the claim was unreasonably withheld. This Court finds that whether the Plaintiff failed to properly notify the Defendant of the existence of the claim or withheld notice is a question of fact for the jury and summary judgment is denied as to this affirmative defense.

12. Plaintiff also moves for Summary Judgment as to whether the treatment and medical bills were reasonable, related, and necessary. Defendant filed the Affidavit of Marvin Merrit, D.C., and filed Marvin Merrit’s peer review report in opposition to Plaintiff’s Motion for Summary Judgment. Plaintiff moves to strike the jurat because the jurat signed by Marvin Merrit states that the affidavit is true and correct to the “best of his knowledge.” This Court agrees. This is not a true sworn document, but instead, an acknowledgement. Both are executed in the presence of a notary but, in an affidavit, the person swearing before the notary must assert under oath that the facts set forth in the document are true. Hammond v. Eastmoore, 513 So. 2d 770 (Fla. 5th DCA 1987). Where an affidavit or sworn-to jurat is required, an acknowledgment will not suffice. Id.; Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982); Hahn v. Frederick, 66 So.2d 823 (Fla. 1953).

13. This Court finds that this Affidavit is defective, but is giving the Defendant until March 4, 2009, to serve a corrected Affidavit. Only the jurat may be amended.

14. Plaintiff argues that Marvin Merrit did not base his peer review report on all of the treatment notes or medical records available to the Defendant and therefore, his affidavit should be stricken. United Automobile Insurance Company v. Wechsel Pain & Rehab, 12 Fla. L. Weekly Supp 1035a (Broward Cty. Appellate 2005); Palm Rehabilitation, Inc. (Jose Quintanilla) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 888a (Miami-Dade Cty. 2007); M.A.B. v. Department of Health and Rehabilitative Services, 630 So.2d 1252 (4th DCA 1994). Specifically, the treatment was from 12/8/05 to 1/24/06, and Marvin Merrit only reviewed notes through 1/18/06 in rendering his opinion. Defendant contends that it did not receive any treatment notes after 1/18/06 from the Plaintiff to provide to Marvin Merrit. The hearing on Plaintiff’s Motion for Summary Judgment based on reasonable, related, and necessary is continued to address these issues. The parties shall reset this hearing for a later date.

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¹The record evidence in Amador showed that United Auto received notice of insured Amador’s claim for PIP benefits on April 28, 1997, and did not request an examination under oath until June 18, 1997, and received insured Borges’ notice of claim on March 24, 1997, but, did not request an examination under oath until June 25, 1997. Similarly in the instant case, United Auto received notice of Kerline Adrien’s claim on January 9, 2006, and did not request an examination under oath until February 27, 2006, to take place on March 16 or 20, 2006. When it was confirmed that the insured did not receive the notice on March 29, 2006, it was not until May 31, 2006, two months later, that United Automobile attempted to set Kerline Adrien for an examination under oath to take place on June 16, 2006, and June 20, 2006.