17 Fla. L. Weekly Supp. 216a

Online Reference: FLWSUPP 1703GODF

Insurance — Personal injury protection — Examination under oath — Failure to attend — Insurer’s failure to notify insured or medical provider of alleged failure to appear at EUO prior to filing of lawsuit constituted waiver of defense — Omnibus insured was not required to attend EUO under policy requiring named insured to submit to EUO

SOUTH FLORIDA PAIN & REHABILITATION, P.A. (a/a/o Kirt Godfrey), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-02111137 COCE (54). August 10, 2009. Lisa G. Trachman, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Terri Kim, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON EUO NO-SHOW DEFENSE

THIS CAUSE came before the Court on August 10, 2009 for hearing on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:

1. April 2, 2007, Kirt Godfrey was involved in an motor vehicle accident in which he sustained injuries.

2. As a result of these injuries, Kirt Godfrey sought treatment from the Plaintiff.

4. [sic] United Automobile Insurance Company alleges that Examinations under Oath were set for April 19, 2007 and April 23, 2007. The scheduling notices were allegedly sent to the patient. The Defendant alleges the patient failed to appear.

5. The Defendant did not furnish the Plaintiff or patient timely itemized specifications of benefits that it was not paying the bill due to the failure to appear for the sworn statements of April 19, 2007 and April 23, 2007. The patient did appear for Compulsory Medical Examinations scheduled on the Defendant’s behalf on May 31, 2007 conducted by physicians from two different licensing chapters (MD and DC). On June 8, 2007, the Defendant furnished correspondence terminating the patient’s benefits for treatment rendered after May 31, 2007, as not being reasonable, related and medically necessary.

7. On December 27, 2007, the Plaintiff filed suit. The Defendant’s First Affirmative Defense alleges Kirt Godfrey failed to comply with conditions precedent in not attending a sworn statement.

8. Plaintiff affirmatively asserted waiver in its reply. Waiver is defined as the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right. Thomas N. Carlton Estate v. Keller, 52 So.2d 131, 133 (Fla. 1951); see Miracle Center Assoc. v. Scandinavian Health Spa, 889 So.2d 877, 878 (Fla. 3d DCA 2004); Miami Dolphins, Ltd. v. Genden & Bach, PA.A and Ed Gorman, 545 So.2d 294, 296 (Fla. 3d DCA 1989); Singer v. Singer 442 So.2d 1020, 1022 (Fla. 3d DCA 1983). A party can waive any contractual, statutory or constitutional right. Thomas N. Carlton Estate, 52 So.2d at 133; Miami Dolphins, Ltd., 545 So.2d at 296. A party may waive any rights to which it is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished. Hammond v. DSY Developers, LLC., 951 So.2d 985, 988 (Fla. 3d DCA 2007); Torres v. K-Site, 500 Assoc., 632 So.2d 110, 112 (Fla. 3d DCA 1994).

9. Since receiving the Plaintiff’s claim and prior to the filing of this lawsuit, the Defendant did not adequately notify the Plaintiff of the alleged failure to appear at the sworn statement.

10. Defendant’s failure to notify the patient or the claimant of the alleged EUO no-show constitutes a waiver of the defense. Tiedtke v. Fidelity & Casualty Company, 222 So.2d 206 (Fla. Supreme Ct. 1969). In that case, the court held that if “an insurer intends to stand on any forfeiture reservation, it should inform the insured as soon as practicable after it has ascertained facts upon which it bases its forfeiture”. Id. at209. In the Tiedtke case, the insurer informed an insured a year and a half after it had provided a defense without disclaiming liability, that is was now denying coverage. Countyline Chiropractic Center, Inc. (a/a/o Deja Carroll) v. United Automobile Insurance Company, 13 Fla. L.Weekly Supp. 191b (17th Judicial Circuit 2005, Hon. Robert W. Lee) citing Tiedtke. An insurer can waive defenses through its conduct. Kendall South Medical Center (a/a/o Nelson Esteves) v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 91b (11th Judicial Circuit, 2007. Hon. Robin Faber), Howard J. Gelb M.D. P.A. (Noreen Schact) v. United Automobile Insurance Company,14 Fla. L. Weekly Supp. 103b (17th Judicial Circuit 2006, Hon. Jay S. Spechler), Pro Imaging (Elba Garcia) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 982a (17th Judicial Circuit 2007, Hon. Martin R. Dishowitz), NDNC Neurological Treatment Centers, Inc. (a/a/o Mercedes Medina) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 496b. (17th Judicial Circuit, 2007, Hon. Jay S. Spechler). In United Automobile Insurance Company v. Mary Brown, 15 Fla. L. Weekly Supp. 893b cert. denied January 16, 2009 by the 4th DCA, the Broward Circuit Court held: “United’s course of conduct constituted a ‘waiver’ of such a claim, not only because United failed to notify Ms. Brown of any defect in her claim to allow swift correction, but also because United continued to proceed with examination as though no prima facie defect in the claim existed. . .” In this case, as in Mary Brown, the insurer proceeded to process the claim without advising the patient of the alleged failure to appear. Further, the Defendant issued payments to three other providers on this claim irrespective of this alleged failure to appear. The Defendant’s PIP and litigation adjuster testified as follows at the depositon of October 16, 2008:

Q: So you weren’t concerned about the EUO no show when you issued payment for those bills, correct?

A: It was a business decision.

11. Without a doubt, the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000); Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974); cited with approval in Amador v. United Auto Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999).

12. If the patient or medical provider who provided services is unaware that the charges are being disputed, neither can make an informed decision as to whether litigation is necessary. The following exchange occurred at the deposition of litigation adjuster taken on October 16, 2008 and attached to Plaintiff’s Motion for Summary Judgment as an Exhibit:

Q: So you sent Kirt Godfrey a letter saying you weren’t going to pay for his benefits because of the failure to appear?

A: I didn’t send a denial out.

Q: Don’t you agree that’s something that should have been done?

A: But didn’t.

13. The Plaintiff also argues that the patient is not required to attend due to their status as a “statutory” insured. The relevant portions of the subject policy upon which the defense rests are as follows:

Page 15, Part E Section I.: “Conditions:

Examination Under Oath: As a condition precedent to receiving Personal injury protection benefits, “you” must cooperate with “us” in the investigation, settlement or defense of any claim or suit, including submitting to an examination under oath by any person named by “us” when or as often as “we” may reasonably require at a place designated by “us” within a reasonable time after “we” are notified of the claim. Only the person being examined may be present during any examination.

Page 1, “Definitions”

Throughout this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household.

Page 2, “Definitions”

“Named insured” means the person or organization named in the Declarations; and if an individual shall include the spouse if a resident of the same household.

As noted in the Declarations Page the “named insured” is Deborah Scott. Kirt Godfrey is a “statutory” insured in this matter.

The following exchange occurred at the deposition of the adjuster previously referenced:

Q: He’s (Kirt Godfrey) claiming as a statutory insured?

A: Yes.

Q: And this is the policy which would be to the benefit of Kirt Godfrey?¹

A: Yes, sir.

14. Kirt Godfrey, claiming under the subject policy as an omnibus or statutory insured, was not and is not the “named insured” as this term is used and defined in the subject policy.

15. Kirt Godfrey, as an omnibus insured claiming under the policy of insurance issued to Deborah Scott, was not required by the policy to attend any examinations under oath. His failure to appear at both of the two examinations requested and scheduled by the Defendant, even assuming arguendo that there was no reasonable excuse for not appearing, cannot as a matter of law be found to comprise the failure of a condition precedent and cannot rise to the level of a defense to nonpayment of the subject benefits. Physician’s First Choice Interpretation (Jaime Rodriguez) v. United Automobile Insurance Company, 10 Fla. L. Weekly Supp. 843d (Hon. Peter B. Skolnik). South Florida Pain & Rehabilitation PA (Hanna Giraldo), 15 Fla. L. Weekly Supp. 282a (Hon. Jay S. Spechler, 2007).

ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the Defendant’s FIRST Affirmative Defenses of failing to appear at a sworn statement.

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¹Plaintiff attached the applicable policy provided by the litigation adjuster at the deposition of October 16, 2008 which is attached to Plaintiff’s Motion for Partial Summary Judgment as to the EUO no-show defense.