16 Fla. L. Weekly Supp. 871a
Online Reference: FLWSUPP 169NUTEC
Insurance — Personal injury protection — Examination under oath — Where claimant voluntarily appeared at EUO, made admissions regarding fraud by treating physicians, and thereafter terminated EUO, claimant’s actions constitute refusal to cooperate — Claimant’s refusal to cooperate is not excused by fact that he had no duty to submit to EUO which was scheduled more than 30 days after insurer’s receipt of notice of claim where claimant voluntarily appeared for EUO
NU-TECH IMAGING P.A. A/A/O MARCELO B. SILVA, Plaintiff, vs. BRISTOL WEST INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008SC010414XXXXSB. July 13, 2009. James Martz, Judge. Counsel: Lindsay Porak, The Law Offices of Stephan D. Deitsch, P.A., for Plaintiff. John E. Eckard II, Law Offices of Timothy W. Ross & Assoc., Davie, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGEMENT AND FINAL JUDGMENT
THIS CAUSE came before the Court upon Defendant’s Motion for Final Summary Judgment pursuant to Florida Rule of Civil Procedure 1.510(a). The Court, having reviewed the submissions by Defendant, and noting the failure by Plaintiff, Nu-Tech Imaging, P.A. to submit any evidence or affidavits in opposition to Defendant’s motion, and having heard the arguments of both parties at a hearing dated July 7, 2009, and the Court being otherwise fully advised in the premises, hereby grants Defendant’s motion for the reasons set forth herein:
Undisputed Facts
1. On or about September 10, 2007, the claimant, Marcelo Silva, was involved in a motor vehicle accident.
2. At the time of the accident, Marcelo Silva was a passenger in a motor vehicle owned and operated by Leonardo Peixoto.
3. Leonardo Peixoto had a policy of insurance with Defendant, Bristol West Insurance Company.
4. Following the accident, Claimant, Marcelo Silva, made a claim for Personal Injury Protection benefits with the Defendant, Bristol West Insurance Company, through the policy of Leonardo Peixoto.
5. On July 7, 2008, the Claimant, Marcelo Silva, at the request of the Defendant, Bristol West Insurance Company, appeared for an Examination Under Oath.
6. During the Examination Under Oath, the Claimant, Marcelo Silva, provided the following testimony.
Q. Who’s paying you to be involved in these accidents?
A. What?
Q. Who’s paying you to be involved in the accidents?
A. Now, I want you to clear that question, be more clear.
Q. That’s pretty clear. Who is paying you to be involved in these accidents?
A. What I received from this accident till now was a check for $2,600.
Q. For what?
A. I got the check on Federal Highway, where I finished the treatment from the first treatment.
Q. And who gave you that check for $2,600?
A. It was an office.
Q. Can I have that telephone number, please?
A. Yes. I have it. That’s 954-782-8122.
Q. And these are the people that gave you a Check for $2,600 for treating at which clinic?
A. Margate clinic. I got a check in my hands. Saw a check for $10,000.
7. Following this “critical disclosure” by the Claimant, Marcelo Silva, the non-lawyer that was present via the telephone to represent the Claimant terminated the Examination Under Oath.
Policy Language at Issue
The policy of insurance at issue in this lawsuit (Attached as attachment to Exhibit A reads, in relevant part:
PART C — PERSONAL INJURY PROTECTION COVERAGE
. . .
DUTIES AFTER AN ACCIDENT OR LOSS
Any . . . entity . . . seeking coverage made under this part shall cooperate with “us”, and such obligation to cooperate shall continue even if the benefits due under this part are assigned to a third party. Cooperation means:
A. Cooperate with “us” in the investigation, settlement or defense of any claim or suit.
. . .
2. Submit, as often as “we” reasonably require:
. . .
b. To examinations under oath at a place of our choosing, and outside the presence of any other “injured person”, and require the person to correct and sign under oath the transcript of the examination(s) under oath.
PART G — GENERAL PROVISIONS
. . . .
LEGAL ACTION AGAINST US
A. No legal action may be brought against “us” until there has been full compliance with all the terms and conditions of this policy and any statutory requirements pertinent to coverage.
(emphasis original and added)
Analysis & Legal Conclusions
It is well settled that summary judgment is proper when there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once competent evidence to support the motion is tendered, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla. 1979); Kolnick v. Fountainview Association, Inc. # 2, 737 So. 2d 1192 (Fla. 3d DCA 1999). It is not enough for the opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997). Disputed facts do not merely arise “because a party disagrees with the facts established by competent evidence submitted by the party moving for summary judgment.” Noack v. Watters, Inc., 410 So. 2d 1375, 1376 (Fla. 5th DCA 1982) (citing Harvey, Inc. v. Harvey, 175 So. 2d 780 (Fla. 1965)).
This Court finds that Defendant has met its initial burden of demonstrating the nonexistence of a genuine issue of material fact. The Court further finds that Plaintiff, in choosing to not submit any counter-evidence, has failed to meet its burden of demonstrating a genuine dispute of material fact.
Plaintiff’s Counter-Arguments
Despite the failure by Plaintiff, Nu-Tech Imaging P.A., to submit any evidence or affidavits in opposition to Defendant’s motion, the Plaintiff appeared the hearing before this Court, through its counsel, and presented argument.
The Plaintiff contended that the Claimant, Marcelo Silva, did not have a duty to submit to the Examination Under Oath requested by the Defendant due to the fact that it took place greater than thirty (30) days after the Defendant received notice of the Claim. In support of its position, Plaintiff cited to Amador v. United Automobile Insurance Company, 748 So.2d 307 (Fla. 3rd DCA 1999).
Conclusion
This Court finds there was no evidence adduced that would dissuade the Court that the testimony provided by the Claimant, Marcelo Silva, indicates that there was some sort of fraud involved in the claim, and that the Defendant would have had substantial questions to ask of the Claimant, which would have been material to the claim based upon the “critical disclosure.”
Furthermore, this Court finds that the Plaintiff may not rely on the “30 day rule” regarding the conduct of an Examination Under Oath when a Claimant/Patient voluntarily appears for an Examination Under Oath, requested by the insurer, and makes admissions regarding fraud by treating physicians. The Claimant, Marcelo Silva, through the actions of a non-lawyer representing him, was prevented from answering additional questions regarding fraud, which may or may not have involved the Claimant, and/or the Plaintiff. This is clearly an unreasonable refusal to cooperate and a de facto refusal to cooperate. The Plaintiff, by virtue of the assignment from the Claimant, “stands in the shoes” of the Claimant, and is bound by the insured’s failure to cooperate.
Accordingly, It is hereby
ORDERED and ADJUDGED:
Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
FINAL JUDGMENT
Pursuant to the above Order granting Defendant’s Motion for Final Summary Judgment, Final Judgment is hereby entered in favor of BRISTOL WEST INSURANCE COMPANY, and against NU-TECH IMAGING P.A. A/A/O MARCELO B. SILVA. NU-TECH IMAGING P.A. A/A/O MARCELO B. SILVA shall take nothing from this action, and Defendant, BRISTOL WEST INSURANCE COMPANY shall go hence without day.
It is further,
ORDERED AND ADJUDGED:
That this Court reserves jurisdiction to tax Defendant’s Attorneys’ fees and costs, if authorized by law.
