18 Fla. L. Weekly Supp. 1183a
Online Reference: FLWSUPP 1811MELE
Insurance — Personal injury protection — Coverage — Where insurance policy issued in Ohio included Med Pay coverage but did not include PIP coverage, and insurer was never placed on notice that insured had permanently relocated to Florida, policy cannot be rewritten by court to provide PIP coverage — Med Pay — Insured’s failure to attend examination under oath constituted failure to satisfy condition precedent to Med Pay coverage under Ohio policy
HEALTHY CARE SOLUTIONS, LLC, as assignee of Jonathon Melendez, Plaintiff(s), vs. GEICO CASUALTY COMPANY, Defendant(s). County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-CC-020976, Division I. August 27, 2011. Honorable Herbert M. Berkowitz, Judge. Counsel: Stuart Yanofsky, Plantation, for Plaintiff. Michael P. Liebgold, Law Offices of James J. Pratt, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on July 18, 2011 after due and proper notice, on Defendant’s Motion For Summary Judgment. Counsel for Defendant appeared in person, and Counsel for Plaintiff failed to appear, notwithstanding this Court’s granting of his previous request to appear by telephone. The Court having reviewed the court file, considered the authorities presented, and being otherwise fully advised in the premises hereby:
ORDERED AND ADJUDGED as follows:
UNDISPUTED FACTS
1. Plaintiff is a healthcare provider that provided services allegedly related to the subject Florida motor vehicle accident to its assignor and seeks PIP and Medpay benefits from the Defendant insurer under the policy of insurance issued by the Defendant to Plaintiff’s assignor.
2. The Defendant issued the policy of insurance under which the subject claim is being made to Plaintiff’s assignor while said assignor resided in Ohio. The subject policy did not provide PIP coverage, but did provide for Medpay coverage.
3. Plaintiff’s assignor, the insured, never advised the Defendant insurer that he was moving, or had moved, to Florida and the Defendant never issued a policy of insurance to its insured in Florida.
4. The aforementioned policy of insurance contained a requirement for an insured claiming under said policy to submit to an examination under oath (“EUO”). Furthermore, the aforementioned policy of insurance contained an applicable clause that suit will not lie unless the insured had fully complied with all the policy’s terms.
5. According to the sworn affidavit of the Defendant’s representative, the insured Jonathan Melendez was sent a letter (“EUO letter”) via regular U.S. mail, advising that an EUO was to be conducted on either March 1, 2010 or March 8, 2010. The EUO letter was sent to the address provided by the Plaintiff healthcare provider and to the Ohio address which Mr. Melendez had previously provided to the Defendant. The insured failed to appear for either EUO appointment.
6. At no time did the Defendant receive any communication from its insured that either of the EUO dates could not, or would not, be attended, nor had the Defendant been provided with a reason for said non-attendance.
7. As of the date of this hearing, no opposing affidavits or other documents have been filed by the Plaintiff in order to raise any issue of material fact.
8. Defendant’s motion was served on Counsel for the Plaintiff on December 2, 2010. On March 19, 2011 the parties coordinated the July 18, 2011 hearing and the Defendant served its Notice of Hearing for that date. On April 20, 2011, Plaintiff’s counsel requested and received permission by this Court to attend this hearing by telephone.
9. Immediately before the said July 18, 2011 hearing, Plaintiff’s counsel’s office advised the Defendant that Plaintiff’s counsel was in a trial but would nonetheless attempt to attend the July 18, 2011 hearing on the Defendant’s subject motion.
10. Notwithstanding the above, Plaintiff’s Counsel did not advise the Court of his indisposition until several hours after the appointed hearing time. This Court found such lack of notice by the Plaintiff to be unreasonable and prejudicial to the Defendant and therefore dispensed with oral argument. Therefore
THE COURT FINDS AS FOLLOWS:
11. The subject insurance policy was issued in Ohio without PIP coverage. Florida applies the rule of lex loci contractus, i.e. “the law of the jurisdiction where the contract was executed governs the rights and liabilities of the parties in determining an issue of insurance coverage.” State Farm Mutual Automobile Insurance Company v. Roach, 945 So.2d 1160, 1163 (Fla. 2006) [31 Fla. L. Weekly S840b] citing Sturiano v. Brooks, 523 So.2d 1126, 1129 (Fla. 1988). Therefore, the law of Ohio applies here as it pertains to insurance contracts. The Ohio policy that the Defendant issued to its insured and upon which the Plaintiff has sued provided Medpay coverage only.
12. The subject Ohio policy of insurance does not now provide PIP coverage simply because the subject motor vehicle accident involving that policy’s named insured occurred in Florida. Failure to notify the insurer of the change of state residence constitutes a material breach of the contract, evidenced by the necessity of the argument that PIP coverage should be imputed because of the site of the collision.
13. Even though Florida requires its residents to procure PIP insurance for their operable motor vehicles, the subject Ohio policy here did not, and cannot be rewritten by this Court to provide PIP coverage as the Defendant insurer was never placed on notice that Mr. Melendez permanently relocated to Florida. Additionally, Medpay coverage in Florida is not statutorily required, and therefore is not subject to the same restrictions as PIP coverage is under the No-Fault statutes.
14. The failure to attend EUO’s as above described, therefore constitutes a material breach of a condition precedent to the Defendant insurer’s duty to provide Medpay coverage under that Ohio insurance policy.
Based upon all of the above, Summary Judgment in favor of the Defendant should be and is hereby GRANTED with the Court reserving jurisdiction to determine the Defendant’s entitlement to its reasonable attorneys’ fees and the amount thereof.
