18 Fla. L. Weekly Supp. 599b
Online Reference: FLWSUPP 1807TORR Insurance — Personal injury protection — Examination under oath — Failure to attend — Attendance at EUO is not condition precedent to PIP coverage
ASSOCIATES REHABILITATION (A/A/O STACEY TORRES), Plaintiff, v. STATE FARM FIRE & CASUALTY INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-9947 CC 23 (04). March 28, 2011. Honorable Myriam Lehr, Judge. Counsel: Ryan Peterson, Patiño Law Firm, Hialeah, for Plaintiff. Matt Hellman, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
This case having come before the Court on the hearing on Plaintiff’s Motion for Final Summary Judgment, and the Court having heard the argument of the parties and having reviewed the Court file and having been otherwise advised, it is hereupon,
ORDERED AND ADJUDGED as follows:
In this No Fault case, the Defendant stipulated that the claimant was an insured under the policy, and that the bills were reasonable, related, and necessary to an accident of June 25, 2006. The Defendant also stipulated that the Plaintiff has standing, and that the Plaintiff served a proper demand letter. There is no dispute that the Plaintiff has shown a prima facie case in this matter with these stipulations.
The Defendant has withdrawn all affirmative defenses except the second affirmative defense, which states “Stacey Torres [the claimant] failed to show for two properly scheduled Examinations Under Oath on 9/1/2005 and 9/12/2005.”
This Court is bound by the recent 11th Circuit Decision in United Automobile Insurance Company v. Francisco Diaz, 09-115 AP, 09-638 AP, (Fla. 11th Circ. App. 2010), which indicates that “[c]onstruing an EUO provision as a condition precedent to coverage or the recovery of PIP benefits, conflicts with the PIP statute to the extent that the statute itself does not make attendance at an EUO a condition precedent.” As such, the Court hereby enters final judgment in favor in favor of the Plaintiff, in the amount of $8,975.00, plus interest of 7% per annum calculated from September 22, 2005, for which let execution issue.
The Court retains jurisdiction to hear the Plaintiff’s motion for attorney fees and costs, as the Plaintiff is the prevailing party in this litigation.
