17 Fla. L. Weekly Supp. 827a
Online Reference: FLWSUPP 1709PER2
Insurance — Personal injury protection — Coverage — Medical expenses — Examination under oath — PIP statute does not contain provision making insured’s attendance at EUO a condition of coverage — Policy provision making EUO a condition precedent to payment of no-fault benefits conflicts with statutory requirements and is invalid
ALL X RAY DIAGNOSTIC SERVICES CORP, a/a/o PEREZ, JULIO C., Plaintiff, vs. GEICO CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-02431 SP 26. May 18, 2010. Patricia Marino Pedraza, Judge. Counsel: Wajih A. Shirazi, Gonzalez & Associates, Miami, for Plaintiff. Brian D. Gabriel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO EXAMINATION UNDEROATH (EUO) NOT QUALIFYING AS A CONDITION PRECEDENT WITHIN THE CONTEXT OF PERSONAL INJURY PROTECTION (PIP) BENEFITS
THIS CAUSE came to be heard before me on April 20, 2010 upon Plaintiff’s Motion for Partial Summary Judgment in the above styled case, and the Court having heard argument of counsel and being further advised in the premises, it is thereupon,
ORDERED AND ADJUDGED as follows:
Plaintiff’s Motion is GRANTED.
1. On or around April 1, 2009, Plaintiff filed suit in order to compel Defendant to pay PIP benefits due and owing to Plaintiff for medical treatment rendered to the insured.
2. Defendant denied payment of these PIP benefits stating that the insured was not entitled to PIP benefits because insured failed to attend Examinations Under Oath (EUO) pursuant to the terms of the insured’s policy and that the insured’s failure to attend an EUO was a condition precedent to insurance coverage.
3. Thereafter, Plaintiff filed its Motion for Partial Summary Judgment and Memorandum of Law stating that the EUO provision does not qualify as a condition precedent within the context of PIP benefits and that Plaintiff should be entitled to judgment as a matter of law as Florida Statute § 627.736 does not permit an insurance company to condition payment of PIP benefits/PIP coverage on attendance at an EUO and that failure to attend a unilaterally set EUO is an insufficient basis to deny PIP benefits under a policy of insurance and/or Florida Law.
4. This Court agrees that only those conditions precedent authorized by the Florida Statute §627.736 (PIP Statute) are valid policy conditions precedent. Moreover, conditions precedent that appear in a PIP insurance policy, but which do not appear in the PIP statute would be inconsistent with the intent of the no-fault insurance statute to provide “swift and virtually automatic payment” so that the injured person may get on with his/her life without undue financial interruption. See Lasky v. State Farm Ins. Co., 296 So.2d 9, 16 (Fla.1974).
5. A condition precedent which is mandated by an insurance company, but not mandated by the PIP Statute would be unenforceable as the condition negates the legislative intent for insurance companies to promptly pay claims for PIP benefits. As PIP insurance is a creature of statute rather than a contractual matter sought by the parties, PIP coverage is not susceptible to an insurance company’s attempt to limit or negate coverage by unilaterally identifying policy provisions as conditions precedent when those provisions are not identified by Florida Statute 627.736 as a condition precedent. See Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla. 2002) [27 Fla. L. Weekly S499a].
6. The Florida Third District Court of Appeal has held that it is “axiomatic that insurance policies, as well as the Insurance Code, will be construed in favor of the insured and insurance coverage.” See Bankers Life and Cas. Co. v. Vadra, 563 So.2d 200 (Fla. 3d DCA 1990). Moreover, In Ortega v. United Auto Ins. Co., 847 So.2d 994 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D796a], the 3rd DCA reversed a judgment in favor of the Defendant “which was premised upon non-compliance with a non-existent statutory requirement” holding that an insurance company cannot avoid liability by alleging that there was a “failure to provide evidence of compliance with a statutory requirement that simply does not exist.”
7. The Florida Motor Vehicle No-Fault Law, Florida Statute, § 627.736, enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault. See United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a]. Under this statutory scheme, each driver collects certain statutorily required medical, disability, or death benefits regardless of fault. See Mansfied v. Rivero, 620 So.2d 987, 988 (Fla. 1993).
8. As previously stated by the Courts, the general policy underlying the no-fault insurance statute includes: “A lessening of the congestion of the court system, a reduction in concomitant delays in court calendars, a reduction of automobile insurance premiums and an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.” See Lasky v. State Farm Ins. Co., above.
9. Florida Statute, § 627.736 has no provision that can authorize an insurer to impose as a condition precedent to payment the attendance of the insured at an Examination Under Oath (EUO). In fact, the only “examination” that is allowed by the statute is a medical examination of the claimant so long as it is done pursuant to the strict requirements of 627.736(7)(a). Moreover, it goes without saying that where a statute mentions one thing, it necessarily implies the exclusion of another. See 48A Fla. Jur. 2d Stat. §128 (2003). An insurance policy simply cannot contain a condition for entitlement to PIP benefits that is not identified in Florida Statute, § 627.736. See Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1984a]. As such, Defendant’s imposition of the EUO requirement as a condition precedent is irreconcilable with the principles of law established by binding case law interpreting the PIP Statute.
10. In Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) [28 Fla. L. Weekly S287a], the Florida Supreme Court specifically held that “insurance policy provisions governing personal injury protection (PIP) and medical payments benefits that are inconsistent with the purposes of the PIP statute will be construed and applied to be in full compliance with the code.” The Supreme Court deems that it is up to the legislature, not insurance companies, to delineate the scope of PIP coverage and the conditions required for payment.
11. This Court finds the Michigan Supreme Court’s analysis of Michigan’s analogous No-Fault Law particularly instructive in ruling that the EUO provision does not qualify as a condition precedent within the context of PIP benefits. See Cruz v. State Farm Mut. Auto. Ins. Co., 614 NW 2d 689 (Mich. 2002) where the Michigan Supreme Court, en banc, held that “EUO provisions may be included in no-fault policies, but are only enforceable to the extent that they do not conflict with the statutory requirements of the no-fault act. Because the insurer in this matter, State Farm Automobile Insurance Company, impermissibly sought to enforce the EUO as a condition precedent to its duty to pay no-fault benefits, this brought the EUO provision into conflict with the requirements of the no-fault statute. The EUO provision must yield to the statute. Thus, a no-fault policy that would allow the insurer to avoid its obligation to make prompt payment upon the mere failure to comply with an EUO would run afoul of the statute and accordingly be invalid.”
12. Correspondingly, Defendant in this case is attempting to create a condition precedent that is on its face inconsistent with the purposes of the PIP statute. As previously mentioned, the PIP statute does not, and has never contained any provision which makes the attendance of the insured at an Examination under Oath (EUO) a condition precedent to coverage. As such, this Court agrees that as a matter of law, the Defendant cannot raise the insured’s failure to appear at an EUO to be a condition precedent to coverage.
13. Therefore, this Court finds in favor of Plaintiff finding that the EUO is NOT a condition precedent within the context of PIP benefits and grants Plaintiff’s Motion for Partial Summary Judgment.
