18 Fla. L. Weekly Supp. 418a
Online Reference: FLWSUPP 1804LAWR
Insurance — Personal injury protection — Examination under oath — Failure to attend — Notice — Where insurer failed to provide notice of EUO to insured’s counsel, insurer failed to prove that insured unreasonably failed to attend EUO after receiving proper notice
COUNTY LINE CHIROPRACTIC OF NORTH MIAMI BEACH, INC., A/A/O LUISA LAWRENCE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 07-8841 COCE 55. January 19, 2011. Honorable Sharon Zeller, Judge. Andrea L. Jakob, Lubell and Rosen, LLC, Ft. Lauderdale, for Plaintiff. Adam Shapiro, Office of General Counsel, United Automobile Insurance Company, North Miami Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING EUO NO-SHOW
THIS CAUSE having come to be heard on Defendant’s Motion for Summary Judgment (regarding EUO No-Show) and the Court being otherwise, advised in the premises, it is hereby Ordered and Adjudged as follows:
Defendant’s Motion is Hereby DENIED for the reasons set forth below.
Defendant’s First Affirmative Defense stated:
“The insured failed to perform all conditions precedent to entitle Plaintiff to recovery, that insured failed to cooperate, and failed to attend a properly scheduled and noticed Examination under oath for August 29, 2006 and August 31, 2006. Accordingly, insured failed to fully comply with DUTIES AFTER LOSS provision of the contract of the insurance and Florida Statutes 627.736(7), which is not only a condition precedent to receiving personal injury protection benefits, but it is also a condition precedent to filing suit. As such, Defendant is not liable for any medical or transportation bills submitted to Defendant and said bills are not overdue.”
1. The Claimant had an Attorney who requested but who was not noticed of the Examination under Oath. Like the Court in, NDNC Neurological Treatment Center, Inc. a/a/o Jocelia Figeuroa v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 199b (17th Jud. Cir. 2008), this Court rejects the Defendant’s argument that it was not required to provide notice to the attorney. Once the insurer has express notice that the insured is represented by counsel and specifically requests notice, they must provide notice. See NDNC Neurological Treatment Center above, where this Court found as a matter of law that when the Attorney is not noticed of an Examination Under Oath, the patient has no obligation to attend.
2. These facts fall squarely within the ruling held by American Skyhawk Insurance Company v. Barbara Chacon, 8 Fla. L. Weekly Supp. 593[b], (11th Jud. Cir. Appellate 2001), which held that where the insurer has express notice that the insured is represented by counsel, and said counsel has specifically requested notice of any action by the insurer, the insurer must provide counsel notice of any IME that it schedules. In the instant case, LUISA LAWRENCE had relied on her attorney to handle everything in the case and to advise her of what to do. Moreover, in American Skyhawk, where the insured had relied upon her counsel’s advice to disregard communications unless these originated from him, it was the lack of notice to counsel which caused the insured’s failure to attend the IME, the Court further held: “The insurer’s own actions, in refusing to provide notice to counsel as requested, cannot constitute an “unreasonable refusal” by the insured in the instant case.”
3. It is well settled that summary judgment should not be entered on the issue of failure to appear for an EUO if there is any proper evidence that the insured cooperated to some degree or has an excuse for his or her failure to appear. Haiman v. Federal Insurance Co., 798 So. 2d 811 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2542a] (If the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury).
4. The Defendant failed to meet its burden of proof in this case. According to the recent holding in Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, SC08-2036 (Fla. November 4, 2010) [33 Fla. L. Weekly S640a] it is Defendant’s burden to prove that
a. the Claimant unreasonably failed to appear and;
b. the Claimant actually received notice.
“Under Florida law, the circuit court was correct that United clearly had the burden of pleading and proving its affirmative defense; therefore, it was required to present evidence to the fact-finder that Masis unreasonably failed to attend a medical examination without explanation after having received proper notice.”, Id.
