16 Fla. L. Weekly Supp. 198a
Online Reference: FLWSUPP 162FONSE
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where fact question exists as to whether insured’s attorney received proper notice of EUOs and whether insured’s failure to attend EUOs rose to level of material breach, insurer’s motion for final summary judgment based on unreasonable failure to attend two EUOs is denied
ROBERT WHITNEY, D.C., INC., a Florida Corporation (assignee of Fonseca, Rita), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-06879 COSO 61. November 25, 2008. Arlene J. Simon, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russel S. Kolodziej, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(RE: EUO NO-SHOW)
THIS CAUSE came before the court on Defendant’s Motion for Final Summary Judgment based upon an alleged unreasonable failure to attend 2 scheduled Examinations Under Oath (“EUOs”). The court, having heard argument, reviewed the motions and being otherwise advised hereby finds as follows:
Factual Background: This is a PIP case. Defendant seeks summary judgment asserting that the Plaintiff’s assignor, Rita Fonseca, failed to attend 2 properly scheduled examinations under oath without justification thereby relieving Defendant of any liability under the policy: Plaintiff responds that:
1) discovery is still pending (specifically the deposition of the patient and patient’s attorney);
2) that said discovery is material as Plaintiff has filed in opposition to this motion the affidavit of the patient’s attorney, Stephen Rosenthal (which was filed in another matter) which alleges that the Defendant failed to give proper notice to him of the EUOs;
3) that at a minimum a fact question exists as to whether the EUO notification was proper.
Conclusions of Law: It is well settled that summary judgment should not be entered on the issue of failure to appear for an EUO if there is any proper evidence that the insured cooperated to some degree or has an excuse for his or her failure to appear. Haiman v. Federal Insurance Co., 798 So. 2d 811 (Fla. 4th DCA 2001) (If the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury); Felicia Hudson v. United Automobile Insurance Co., 12 Fla. L. Weekly Supp. 833 (11th Cir. App. June 14, 2005) (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).
In the instant case, a fact question clearly exists as to whether the patient’s attorney received proper notice and as to whether the patient’s failure to attend the EUOs rises to the level of a material breach.
Accordingly, the Defendant’s Motion for Summary Judgment based on the defense of EUO no-show is respectfully DENIED.
