16 Fla. L. Weekly Supp. 783a
Online Reference: FLWSUPP 168JONES
Insurance — Personal injury protection — Examination under oath — Failure to attend — Elderly insured — Evidence demonstrates that insurer failed to adhere to code of ethics requiring exercise of extraordinary care when dealing with elderly clients in its dealings with elderly insured who failed to attend two unilaterally scheduled EUOs — Insurer waived right to right to assert EUO no-show defense by acting as if there was no breach from EUO no-shows when it thereafter scheduled two independent medical examinations, to which insured submitted
FIDEL S. GOLDSON, D.C., P.A., a Florida Corporation (assignee of Jones, Walter), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-3139 COCE 55. May 20, 2009. Sharon L. Zeller, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(re: EUO no-show)
THIS CAUSE, came before the court for hearing on April 13, 2009, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Background: This is a multi-count P.I.P. case. Count I claims breach of contract for failure to pay amounts owed. Defendant alleges in its Motion for Final Summary Judgment that the Defendant is relieved of its obligation to pay the Plaintiff’s claim based upon the Plaintiff’s alleged failure to provide notice of a covered loss. Specifically, the Defendant moves for summary judgment alleging that the patient’s alleged failure to attend two (2) unilaterally scheduled examinations under oath (hereafter “EUOs”) is a breach of the insurance policy at issue, and therefore relieves the Defendant of its obligation to pay any part of the claim.
Plaintiff responds that the Defendant is not relieved of its obligation to pay the claim as the patient’s alleged failure to attend two (2) unilaterally scheduled EUOs is not a breach of the insurance policy where (1) the patient has cooperated with the insurer by submitting to two full-blown independent medical examinations (hereafter “IMEs”); and (2) where the Defendant failed to use extraordinary care in the handling of a 79 year-old patient’s claim. Moreover, the Plaintiff maintains that since the Defendant acted as if there was no breach when it scheduled the IME’s after the alleged breach, it waived or should be estopped from asserting said defense. Additionally, Plaintiff maintains that it has cooperated to a significant degree thus creating a question of fact to be presented to the jury for resolution (and precluding summary judgment on this issue).
Conclusions of Law: This court agrees with the Plaintiff that the Defendant was required to exercise extraordinary care when dealing with the claimant. Florida Administrative Code Rule 690-220.201(4)(h), which sets out the ethical code for adjusters provides: “[a]n adjuster shall exercise extraordinary care when dealing with elderly clients, to assure that they are not disadvantaged in their claim transactions by failing memory or impaired cognitive processes.” The evidence clearly demonstrates that the Defendant failed to exercise extraordinary care in its dealings with this claimant. The deposition of Mr. Jones is also significant, in that is shows, at his 79 years, his memory is not clear.
It is well-settled by the Fourth District Court of Appeal that while a failure to comply with policy conditions may constitute a breach precluding recovery under the policy, if the insured cooperates to some degree or provides an explanation for noncompliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution. Haiman v. Federal Insurance Company, 798 So.2d 811 (Fla. 4th DCA 2001) citing Diamonds & Denims, Inc. v. First Georgia Ins. Co., 203 Ga. App. 681, 417 S.E.2d 440, 441-442 (Ga. Ct. App. 1992); See also, Felicia Hudson v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 833 (Dade County Circuit Court Appellate 2005) (“Where the insured cooperates to some degree or provides an explanation for non-compliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution.”; R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 10 Fla. L. Weekly Supp. 132a (Broward County Court, Judge Lee Jay Seidman, 2002); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 10 Fla. L. Weekly Supp. 132b (Broward County Court, Judge Lee Jay Seidman, 2002). [emphasis added].
In the instant case, it is undisputed that Mr. Jones did cooperate to a significant degree when he submitted to two (2) IME’s.
Waiver is “the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.” Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003). It is undisputed that the Defendant knowingly acted as if there was no breach when it set the IME’s to occur after the alleged breach and, in doing so, waived its right to assert EUO no-show as a defense.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED.
