16 Fla. L. Weekly Supp. 982a
Online Reference: FLWSUPP 1610ROBE
Insurance — Personal injury protection — Examination under oath — Where insurer received notice of representation from insured’s attorney prior to sending EUO request directly to insured, failure to attend EUO was not unreasonable
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Madalyn Roberts) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-007253 COCE (54). March 9, 2009. Lisa G. Trachman, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers, Sunrise, for Plaintiff. Angela Wilt, Daniels, Kashtan, Downs, Robertson & Magathan, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE
THIS CAUSE came before the Court on March 9, 2009 for hearing on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
1. On October 31, 2001, Madalyn Roberts was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Roberts sought treatment from various medical providers including the Plaintiff. The patient treated with NDNC Neurological Treatment Centers, Inc. from May 22, 2002 to October 14, 2002. On May 30, 2002, United Automobile Insurance Company received a letter of representation from Ms. Robert’s attorney, Douglas P. Johnson, Esq. On July 8, 2002, the Defendant allegedly mailed a notice with Examination Under Oath appointment dates to the patient.
3. Defendant provided notice of the Examination Under Oath (EUO) only to the patient, Madalyn Roberts, but not to Ms. Robert’s counsel as confirmed by the uncontroverted deposition transcript of Defendant’s adjuster. Defendant confirmed in the uncontroverted adjuster deposition that it had received a notice of representation from Madalyn Robert’s attorney prior to sending its Examination Under Oath request directly to Madalyn Roberts.
4. Defendant never issued any correspondence to the patient or her attorney that it was denying the bill based for a failure to attend an Examination under Oath. The Defendant’s adjuster testified as follows at deposition on December 9, 2008:
Q: So what is your understanding when the claim was denied?
A: The claim, it was never denied.
5. Defendant improperly failed to direct its communications to Plaintiff’s counsel and accordingly the failure to appear for Examination Under Oath was not unreasonable. The Defendant did not raise the alleged failure to appear at a sworn statement until after the commencement of litigation in 2007.
6. This Court finds persuasive, and adopts the reasoning of, American Skyhawk Ins. Co. v. Chacon, 8 Fla. L. Weekly Supp. 114b (Dade County, 2000), and finds that once attorneys are involved in the case there is a strong public policy in favor of requiring insurers to communicate through the designated legal representative. This reasoning has been adopted by other Courts aswell as it relates to a sworn statement. Miami Chiropractics v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 1104b (Broward County Ct. Judge Zeller 2005).
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the Defendant’s Affirmative Defense of failing to appear at an Examination Under Oath.
