18 Fla. L. Weekly Supp. 90a
Online Reference: FLWSUPP 1801HILA Insurance — Personal injury protection — Affirmative defense — Waiver — Insurer waived right to assert insured’s failure to attend examination under oath as affirmative defense to medical provider’s claim by paying another provider’s bills that were subject to same defense
QUALITY MEDICAL GROUP, INC. a/a/o Chernande Hilaire, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 09 10757 CC 25 (04). September 30, 2010. Nuria Saenz, Judge. Counsel: Kevin W. Whitehead, Downs Whitehead Law Firm, Coral Gables. Melanie L. Smith.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY’S, Motion for Summary Judgment and Plaintiff’s, QUALITY MEDICAL GROUP, INC. a/a/o Chernande Hilaire’s, Cross Motion for Summary Judgment, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Defendant’s Motion for Summary Judgment is hereby DENIED, and the Plaintiff’s Cross-Motion for Summary Judgment is hereby GRANTED. The Defendant is equitably estopped from defending the subject medical care provider’s claim on the basis of EUO no show since it paid another provider’s bills which were subject to the same defense. Insurance Co. of St. Louis, Mo. v. Yates, 200 So.2d 622 (Fla. 1st DCA 1967); Reynolds v. Oakley Construction, 561 So.2d 1298 (Fla. 1st DCA 1990).
2. The litigation adjuster testified that the medical bill from Homestead Diagnostic was paid (line 3 of PIP log attached to Deposition of Marcia Lay as Exhibit 6). This bill, which was received on 5/14/09, after the failure to attend the EUOs which were scheduled for 4/2/09 and 4/6/09, and was subject to the EUO no-show defense. (See Deposition of Marcia Lay at 18-19)
3. The Defendant had a known right to deny all bills due to claimant’s failure to attend the subject EUO. However, it chose intentionally and voluntarily to relinquish this right and pay other bills for medical services rendered to the claimant for injuries sustained in this accident. This conduct, undoubtably, warrants the inference of a relinquishment of the Defendant’s right to assets the failure to attend the EUO as a reason for non-payment. Open MRI of Miami Dade, Ltd., a/a/o Yolande Georges v. United Automobile Insurance Company, Case No. 08-4051 SP 25 (04) (Fla. 11th Jud. Cir. Oct. 14, 2009, Judge Saenz).
4. Neither statute, policy of insurance, or case law allow the Defendant to pick and choose to which provider it is going to assert the same affirmative defense. Id.
5. The doctrine of waiver can encompass not only the intentional or voluntary relinquishment of known rights, but also conduct that warrants an inference of the relinquishment of those rights. Miami Dolphins, LTD. v Genden & Bach, P.A., 545 So.2d 294 (Fla. 3rd DCA 1989). The Defendant’s action of paying other bills for medical services which are subject to the same defense, therefore forgoing the EUO no show defense, creates a clear inference of the relinquishment of its’ right to assert the defense, and the insurer may not defend the case sub judice on this basis.
