17 Fla. L. Weekly Supp. 379b
Online Reference: FLWSUPP 1705PAUL
Insurance — Personal injury protection — Neither medical provider nor insured knowingly submitted false or misleading statements — Examination under oath — Where insurer rescheduled EUO after insured’s failure to appear at first EUO, operative date of alleged breach of duty to attend EUO is date insured failed to appear at rescheduled EUO — Duty to submit to EUO is condition precedent to suit, but does not fall under purview of duty to cooperate under policy — Insured did not have duty to cooperate after insurer denied claim — Insurer was provided with written notice of covered loss
TAMPA CHIROPRACTIC CENTER, a/a/o CALEB PAUL, Plaintiff, v. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-CC-14826. January 6, 2010. John E. Jordan, Judge. Counsel: Crystal L. Eiffert, Eiffert & Associate, P.A., Orlando. Timothy S. Kazee, Vernis & Bowling of Central Florida, Deland.
ORDER ON PLAINTIFF’S AND DEFENDANT’S MOTION FOR REHEARING AS TO ORDER DATED NOVEMBER 19, 2009
THIS MATTER came before the Court on Plaintiff’s and Defendant’s Motions for Rehearing as to Order Dated November 19, 2009, and, being considered by the Court and otherwise being fully advised of the premises; it is hereby ORDERED AND ADJUDGED that:
1. Plaintiff’s and Defendant’s Motion for Rehearing as to Order Dated November 19, 2009 is hereby GRANTED.
2. Plaintiff has presented to the Court the following questions to be decided as a matter of law:
a. Whether the assignee stands in the shoes of the insured for purposes of 627.736(5)(b)(1)(c) of the Florida Statutes when the provider submitted the claims at issue and it is undisputed that the provider did not make a false or misleading statement related to the claim it submitted.
b. Whether the alleged breach of contract for failure to submit to an examination under oath occurred on May 21, 2007 or June 7, 2007.
c. Whether an examination under oath is a condition precedent to litigation or whether an examination under oath falls within a duty to cooperate under the policy.
d. Whether Caleb Paul had a continuing “duty to cooperate” after Direct denied his claim on June 20, 2007.
3. Defendant has presented the Court with questions of law that are effectively sub-categories of the questions presented by the Plaintiff above. There is however, one question of law presented by the Defendant which merits a decision by the Court:
a. Whether the Defendant was provided written notice of the fact of a covered loss pursuant to the policy of insurance and/or section 627.736(4)(b) of the Florida Statutes.
4. As such, the Court make the following findings as a matter of law as to Plaintiff’s and Defendant’s Motions for Rehearing:
5. As to the issue of section 627.736(5)(b)(1)(c) of the Florida Statutes, it is undisputed, and the Court finds as a matter of law that the Plaintiff/medical provider did not submit any false and/or misleading statements related to the claim or charges. In addition, the Court finds as a matter of law that the insured/assignor, Caleb Paul did not knowingly submit a false and/or misleading statement related to the address that Caleb Paul provided to Defendant, or as to the deposition testimony given by Caleb Paul related to the treatment and/or services he received.
6. As it relates to the question presented by the Plaintiff as to the Examination Under Oath, it is undisputed that the Defendant/insurer scheduled the insured/assignor for an Examination Under Oath on May 16, 2007, and when the insured/assignor did not appear for the May 16, 2007 Examination Under Oath, the Defendant/insurer scheduled the insured/assignor for a second Examination Under Oath on June 7, 2007. In this case, the Defendant has raised as an affirmative defense that the insured/assignor has breached the policy of insurance by failing to satisfy a condition precedent to coverage by failing to appear for two Examinations Under Oath. Presented with the Plaintiff’s question of law above regarding the operative date of the alleged breach, the Court finds that the failure to appear at the June 7, 2007 Examination Under Oath is the operative date for the alleged breach.
7. As to the issue of whether an examination under oath is a condition precedent or whether such a duty falls with the duty to cooperate clause of the policy, the Plaintiff’s position is that a duty to submit to an examination under oath is a condition precedent to suit and while an insured may have a continuing duty to submit to an examination under oath in general, the special nature of the No-Fault Statute sets forth a time frame for the investigation and payment of claims and that an insurer may not use the failure of an insured to submit to an untimely examination under oath as a defense to payment of No-Fault benefits. The Defendant’s position is that the policy includes both a duty to submit to an examination under oath as well as a duty to cooperate which includes the duty to submit to an examination under oath. The Court agrees with the Plaintiff and finds as a matter of law that an examination under oath is a condition precedent and does not fall within the purview of a duty to cooperate under the policy.
8. As to the issue of whether the insured/assignor had a continuing duty to cooperate after the Defendant denied the subject claim on June 20, 2007, the Court finds as a matter of law that the insured/assignor did not have a continuing duty to cooperate after the subject claim was denied by the Defendant/insurer on June 20, 2007.
9. As to the question presented by the Defendant of whether, as a matter of law, it was provided with written notice of the fact of a covered loss pursuant to the policy and/or section 627.736(4)(b) of the Florida Statutes, the Court finds that based on the record evidence, the Defendant was provided with written notice of the fact of a covered loss.
10. As to the remaining questions presented by the Defendant in its Notice of Rehearing, it is unnecessary for the Court to specifically rule on same in light of the Court’s rulings above.
