18 Fla. L. Weekly Supp. 693d
Online Reference: FLWSUPP 1808BULI Insurance — Personal injury protection — Examination under oath — Attendance at EUO is not condition precedent to recovery of PIP benefits
MEJIAS MEDICAL CENTER, INC. a/a/o YORDANKA BULIT, Plaintiff, vs. ESURANCE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-08284 CC 25 (1). February 3, 2011. Gloria Gonzalez-Meyer, Judge.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND PLAINTIFF’SCROSS MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on January 5, 2011 upon Defendant’s Motion for Final Summary Judgment and Plaintiff’s Cross Motion for Final Summary Judgment, the Court having considered the motions and memorandums of law filed by the parties, having heard argument from both parties and having been duly advised on the premises and law, the Court finds as follows:
On March 31, 2009, Yordanka Bulit, the claimant and insured, was involved and injured in a motor vehicle accident while she was the driver in the insured vehicle. As a result of the accident, Yordanka Bulit sought medical treatment from at the Plaintiff’s facility from April 22, 2009 to June 26, 2009. The Defendant failed to pay the PIP benefits and this PIP suit was filed.
The Defendant filed a Motion for Final Summary Judgment arguing that the insured/claimant’s failure to attend two Examinations under Oath amounted to a total failure to comply with policy provisions made a prerequisite to suit under the Defendant’s policy and the insured/claimant’s failure to comply with the duties after a loss constituted a breach precluding recovery of any PIP benefits.
The Plaintiff filed a Response and Cross Motion for Final Summary Judgment. The Plaintiff set forth three arguments why the failure to attend the Examinations under Oath did not preclude recovery for the Plaintiff. This Court finds that the argument articulated by the Plaintiff that the provision in Defendant’s policy requiring attendance at an Examination under Oath as a condition to coverage most persuasive.
In Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, ___ So.3d ___, 2010 WL 4340809 (Fla.), 35 Fla. Law Weekly S640a (Fla. November 4, 2010), the Florida Supreme Court noted that any provision in a PIP policy that includes a condition to coverage that is not in the PIP statute is invalid and contrary to the statutory terms. The Supreme Court reiterated the purpose of the no-fault statutory scheme. The purpose has always been to provide swift and virtually automatic payment so that the injured insured can get on with his life without undue financial interruption. Citing to Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-684 (Fla. 2000) [25 Fla. L. Weekly S1103a].
Although United’s defense in Custer was that its insured unreasonably refused to attend an Independent Medical Examination (IME), this Court finds that the Florida Supreme Court’s rationale and its result apply equally in the context of an EUO No-Show defense.
The Custer opinion discusses EUOs, and this Court is of the opinion that the Florida Supreme Court has called into question the viability of such provisions in insurance contracts, particularly if such provision is contrary to the PIP statute.
The Court in Custer states:
A purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted under the statutory provisions. The prohibition of policy exclusions, limitations, and non-statutory condition on coverage controlled1 by statute is clear. See Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla. 1972)(nothing that courts have an obligation to invalidate exclusions on coverage that are inconsistent with the purpose of the statute that mandates the coverage); Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 229, 232-34 (Fla. 1971)(stating that automobile liability insurance and uninsured motorist coverage obtained to comply with or conform to the law cannot be narrowed by the insurer through exclusions and exceptions contrary to the law); Diaz-Hernandez v. State Farm Mut. Casualty Co., 19 So.2d 996, 1000 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2112b](concluding that a provision in a policy was invalid because it was against the public policy of the statute) Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D363a](stating that restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid)(citing Flores, 819 So.2d at 745). PIP insurance is markedly differently from homeowner’s/tenants insurance, property insurance, life insurance, and fire insurance, which are not subject to statutory parameters and are simply a matter of contract not subject to statutory requirements.
The Court notes that the PIP statute does not impose any EUO condition upon the insured. The statute is silent as to EUOs. Construing an EUO provision as a condition precedent to coverage or the recovery of PIP benefits conflicts with the PIP statute to the extend that the statute itself does not make attendance at an EUO a condition precedent. In contrast, and underscoring the fact that the Legislature did not intend that an EUO be a condition precedent, the statute does provide a condition precedent upon insureds by the provision requiring the submission of a pre-suit Demand Letter. See Fla. Stats. §627.736(10).
Notably, to the extent that the PIP Statute is wholly silent as to EUOs, there is no apparent consequence to an insured’s failure to appear to an EUO. Indeed, there is no apparent consequence to an insured’s “unreasonable refusal” to submit to an EUO. Where no consequence has been intended by the Legislature, no court can impose one. Again, in contrast, we know that Fla. Stats. §627.736(7)(b) relieves an insurer of its obligation to pay medical bills that it receives after an insured “unreasonably refuses” to submit to an IME. There is no parallel consequence included in the Statute for an insured’s failure to appear at or refusal to submit to an EUO. This Court cannot impose such a consequence where the Legislature has chosen not to.
This Court finds that the Defendant’s position that attendance at an Examination under Oath is a condition precedent to the recovery of PIP benefits is erroneous. The Court finds that Custer controls the outcome in this case.
This Court finds that based on the foregoing Defendant’s Motion for Final Summary Judgment is DENIED and Plaintiff’s Cross Motion for Summary Judgment is GRANTED.
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1Custer, supra at n. 1.
