18 Fla. L. Weekly Supp. 686a
Online Reference: FLWSUPP 1808GROD Insurance — Personal injury protection — Examination under oath — Failure to attend EUO is not valid policy condition in PIP claim — Affirmative defenses of failure to attend EUOs are stricken
FIRST CHOICE THERAPY GROUP LLC, (a/a/o Gladys Rodriguez), vs. FIRST ACCEPTANCE INSURANCE COMPANY. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 10-CC-015803, Division J. May 23, 2011. Honorable Gaston J. Fernandez, Judge. Counsel: Joseph Ronald Pliego II and Emilio Roland Stillo, Florida Trial Team Tampa, LLC, Tampa, for Plaintiff. Randall A. Wainoris and Scott Dutton, Dutton Law Group, Tampa, for Defendant.
ORDER ON PLAINTIFF’S MOTION TOSTRIKE AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on January 5, 2011 for hearing on Plaintiff’s Motion to Strike Answer and Affirmative Defenses, 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. On or about July 10, 2010, the Defendant filed an Answer and Affirmative Defenses raising six affirmative defenses. The Defendant’s fifth affirmative defense states: “The insured failed to attend two Examinations Under Oath which were scheduled to occur on January 20, 2010 and February 1, 2010. The insured thus materially breached the subject policy of insurance and thus the Defendant is not required to provide PIP coverage for the medical bills at issue in this dispute”. The Defendant’s sixth affirmative defense stated: “The assignor failed to attend two Examinations Under Oath which were scheduled to occur on January 20, 2010 and February 1, 2010. Attending an Examination Under Oath (when requested) is a material provision of the subject policy of automobile insurance. The subject policy provides that the assignor is precluded from suing the Defendant until or unless the assignor complies with all material provisions of the subject contract of automobile insurance. Thus, this suit was prematurely filed and is subject to disposal accordingly.”
2. On or about August 3, 2010, Plaintiff filed a Motion to Strike Answer and Affirmative Defenses or for more definite statement.
3. On or about August 11, 2010, the Defendant withdrew its First, Second and Fourth Affirmative Defenses.
4. On January 5, 2011, the Court heard argument as to Plaintiffs Motion to Strike Defendant’s Fifth and Sixth Affirmative Defenses. The Court relies on the Florida Supreme Court’s decision in Custer Medical Center v. United Automobile Insurance Company, 35 Fla. L. Weekly S640a (Fla. Nov 4, 2010) as it relates to examinations under oath in the No-Fault arena. The Florida Supreme Court stated as it relates to Examinations Under Oath or sworn statements: “The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms”. In addition the Court stated: “. .the district court improperly considered and incorrectly relied on language in United’s policy which was contrary to existing statutory provisions”. Accordingly, the Court finds that Examinations Under Oath are not valid policy conditions in PIP claims.
ORDERED AND ADJUDGED THAT: the Plaintiffs Motion to strike affirmative defenses 5 and 6 is GRANTED.
