16 Fla. L. Weekly Supp. 295a
Online Reference: FLWSUPP 164CRUZ2
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer sent letter suspending benefits as of date of independent medical examination and scheduled insured to attend EUO concerning medical bills incurred before IME cutoff date, trial court erred in finding no genuine issue of material fact regarding whether suspension letter constituted anticipatory breach of contract relieving insured of obligation to attend EUO
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o Isabel Cruz, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-086 AP & 08-203 AP. L.C. Case No. 06-016414 SP 25. February 20, 2009. An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Counsel: Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company for Appellant. Maria Sampedro-Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before MARGARITA ESQUIROZ, ARTHUR L. ROTHENBERG, and SANDY KARLAN, JJ.)
(PER CURIAM.) Appellant United Automobile Insurance Company appeals from a final summary judgment entered in favor of the Appellee Professional Medical Group, Inc. on the Examination Under Oath (EUO) no-show affirmative defense. Based on the holding of United Auto. Ins. Co. v. Open MRI Miami-Dade Ltd., a/a/o Venettia Williams, 14 Fla. L. Weekly Supp. 1091a (Fla. 11th Cir. Ct. Sept. 21, 2006), we reverse and remand.
On April 5, 2006, the claimant, Isabel Cruz, was involved in an automobile accident and sustained personal injuries. She sought personal injury protection (PIP) benefits from the Appellant under an automobile insurance policy. She assigned her PIP benefits to the Appellee for medical services rendered between April 18th to July 19th of 2006. At the Appellant’s request, Ms. Cruz submitted to an Independent Medical Examination (IME) on June 1, 2006. The IME physician’s report determined that no further treatment was reasonable, related or medically necessary.
As part of its investigation, the Appellant unilaterally scheduled Ms. Cruz to attend an EUO on May 23, 2006 or alternatively May 25, 2006 and she failed to attend. On June 9, 2006 Appellant sent a suspension of benefits letter containing an IME cut-off date [letter] based on the IME physician’s report advising that it “hereby suspends benefits under this licensing chapter for any services rendered after 06/01/06.” This letter contained similar language to the one in Williams. A third EUO was rescheduled to June 21, 2006 at the request of Ms. Cruz and her attorney, but once again, she failed to attend.
The Appellee filed a complaint below for PIP benefits after the Appellant denied payment of its medical bills submitted between April 16th to May 31st of 2006. As an affirmative defense, Appellant asserted Ms. Cruz’s failure to attend the scheduled EUO’s set within thirty days of receiving those bills. Appellee moved for summary judgment as to this affirmative defense arguing that the letter was an anticipatory repudiation of the policy which relieved Ms. Cruz of the obligation to attend the rescheduled EUO.1 The trial court agreed with the Appellee concluding that the letter could be interpreted as denying all of the medical bills and entered summary judgment. We find the trial court erred because a genuine issue of material fact exists.
As in the present case, like in Williams, the only medical bills at issue were for medical services rendered prior to the IME cut-off date contained in the letter. The EUO had been rescheduled like in Williams based on a pre-IME bill performed prior to this date. The holding of Williams is that a letter does not constitute an anticipatory repudiation of a policy where the medical bills are incurred before the IME cutoff date contained in the letter. Based on Williams, we find that a genuine issue of material fact existed in this case as to whether the letter constituted an anticipatory repudiation where the medical bills were incurred prior to the IME cut-off date. Williams clearly distinguished the case of Peachtree Cas. Ins. Co. v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000) which the trial court relied upon below. Peachtree involved a medical bill incurred after the IME cut off date contained in a letter in finding that the letter constituted an anticipatory repudiation by the insurer of the policy to pay PIP benefits. Id. at 8.
Consequently, we find that whether the Appellant breached the policy was a question of fact for the jury precluding final summary judgment. Accordingly, because the final summary judgment entered below must be REVERSED AND REMANDED, the final judgment of attorney’s fees and costs entered below is also REVERSED AND REMANDED. Appellee’s motion for appellate attorney’s fees pursuant to section 627.428, Florida Statutes, is hereby denied.
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1The Appellant argued that the letter was not an anticipatory repudiation as it does not cut off any of the medical bills for treatment rendered prior to the IME cut off date because it only suspended benefits for future treatment. Appellee argued that the letter effectively prevented the Appellant from setting an EUO to investigate medical bills from before the IME cut off date.
