17 Fla. L. Weekly Supp. 225a
Online Reference: FLWSUPP 1703HART
Insurance — Personal injury protection — Examination under oath — Failure to appear — Where insured received notice of and unreasonably refused to attend two EUOs, insured’s breach of PIP policy relieves insurer of any obligation to pay benefits — No merit to argument that insurer waived EUO no-show defense by failing to list it on explanation of benefits where failure to attend EUO could not have been cured even if listed on EOB
DR. JOHN CALVANESE, D.C., P.A., (a/a/o Joy Hart), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-10600 COCE 51. August 6, 2009. Martin R. Dishowitz, Judge. Counsel: Robert Stein, for Plaintiff. Nicholas A. Zacharewski, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
This matter having come before the Court on July 2, 2009 for hearing on Defendant’s Motion for Final Summary Judgment. Present before the Court appeared counsel for the Plaintiff, Robert Stein, Esquire, and counsel for the Defendant, Nicholas A. Zacharewski, Esquire. Having heard arguments of Counsel, reviewed the pleadings, motions, and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. Plaintiff filed the above lawsuit alleging breach of contract for failure to pay personal injury protection benefits for treatment allegedly rendered to Joy Hart as a result of a motor vehicle accident on August 11, 2007.
2. United Automobile Insurance Company sent correspondence via United States Postal Service signature confirmation and regular mail to Joy Hart requesting that she appear for an examination under oath on September 24, 2007, with a back-up appointment set for September 26, 2007.
3. It is undisputed that the notice was received by Joy Hart on September 22, 2007 and that Ms. Hart did not appear for the examination under oath on September 24, 2007. Further, it is undisputed that Ms. Hart did not contact United Automobile Insurance Company regarding the September 24, 2007 examination under oath.
4. United Automobile Insurance Company was contacted by the attorney for Joy Hart on September 26, 2007 and an appointment was scheduled for October 29, 2007. It is uncontested that the notice was sent via facsimile on September 28, 2007, to the attorney for Joy Hart at the Law Offices of Goldman, Daskal, Cutler, Bolton & Kirby and confirmation was received by United Automobile Insurance Company. The notice was sent over one month prior to the scheduled examination under oath.
5. Joy Hart did not attend the examination under oath set for October 29, 2007.
6. An insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy. The failure to submit to an examination under oath is a material breach of the insurance policy which will relieve the insurer of the obligation to pay under contract. Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300 (Fla. 4th DCA 1995).
7. Florida courts have consistently held that communication to a party’s attorney constitutes communication to the party itself. Radiology B. Services, Inc. (a/a/o Michael Rouzard) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 584b (Fla. 17th Jud. Cir. 2005), quoting Cruise v. Graham, 622 So. 2d 37, 39 (Fla. 4th DCA 1993)(holding that an attorney acts as the client’s representative, and representations made to the attorney are representations made to that attorney’s client.) See also, Estate of Brugh v. Freas, 306 So. 2d 599, 600 (Fla. 2d DCA 1975); Langarica v. State Farm Mutual Automobile Insurance Company, 6 Fla. L. Weekly Supp. 469 (11th Cir. Ct. 1999).
8. This Court finds that Joy Hart received notice of the examinations under oath and unreasonably refused to attend the examinations under oath breaching the terms of the policy, and relieving United Automobile from any obligation to pay under the contract.
9. This Court is not persuaded by Plaintiff’s argument that the Defendant waived their EUO no show defense, because it was not stated on an explanation of benefits. This Court finds, based upon its reading of United Auto. Ins. Co. v. Garrido, 990 So. 2d 574 (Fla. 3d DCA 2008), there is no waiver of an affirmative defense when the failure is not a failure that can be cured based on notice. In the instant case, the insured, Joy Hart’s failure to appear for the examination under oath could not have been cured even if the Defendant’s explanation of benefits letter states the same.
Therefore it is accordingly ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is hereby granted in favor of Defendant and Plaintiff shall go hence without day.
