18 Fla. L. Weekly Supp. 776a
Online Reference: FLWSUPP 1809HENR Insurance — Personal injury protection — Examination under oath — EUO provision in PIP contract operates as valid condition precedent to coverage — Claims representative’s testimony that letter requesting insured’s attendance at EUO was mailed to insured and that letter was not returned by post office raised presumption that insured received letter, and medical provider did not rebut presumption by sworn affidavit — Although trial court did not determine whether insurer reasonably requested EUO within 30 days of receipt of claim, appellate court determines from undisputed evidence that it did so — No action clause in PIP contract bars claim until insured complies with condition precedent of attending EUO — Abatement of premature action until insured complies with condition precedent is not appropriate where more than six years passed between date of loss and filing of provider’s complaint
STATE FARM FIRE AND CASUALTY COMPANY, Appellant-Defendant, v. SUNCARE PHYSICAL THERAPY, INC., a/a/o CEDROLE HENRISMA, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-648 AP. L.C. Case No. 05-2093 SP 25 (03). July 13, 2011. Oral Argument: May 5, 2011. On appeal from a final judgment rendered by the Miami-Dade County Court. Honorable Jacqueline Schwartz, Judge. Counsel: Douglas H. Stein and Stephanie Martinez, Seipp & Flick, LLP, for Appellant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Appellee.
(Before GLICK, S., COLODNY, and CUETO, JJ.)
(PER CURIAM.) Suncare Physical Therapy, Inc., a/a/o Cedrole Henrisma (“provider”) brought a section 627.736(4)(b), Florida Statutes, contractual breach action against State Farm Fire & Casualty Company (“insurer”). The insurer requested Cedrole Henrisma’s (“claimant”) attendance at an examination under oath (“EUO”). The insurer sought summary judgment based upon the claimant’s failure to attend the EUO. The trial court denied summary judgment. We find the summary judgment dispositive and decline to address the additional arguments.1 Section 26.012, Florida Statutes, grants us jurisdiction to review this appeal.
We review summary judgments de novo, United Auto. Ins. Co. v. Tejada, 18 Fla. L. Weekly Supp. 353a (Fla. 11th Cir. Ct. Feb. 8, 2011), and in accord with Florida Rule of Civil Procedure 1.510(c). Where summary judgment rests upon a pure legal question, “such as the interpretation of an unambiguous contract provision, there are no relevant factual disputes.” Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So. 3d 565, 573 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1712a].I.
We must “consider all decisions” from our appellate division “when searching for precedents.” State v. Lopez, 633 So. 2d 1150; 19 Fla. L. Weekly D611 (Fla. 5th DCA 1994). In compliance with Lopez, we reviewed United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. 11th Cir. Ct. Feb. 3, 2011), cert. denied, 3D11-866 (Fla. 3d DCA 2011), as precedent2. Absent a rule resolving conflicts among the circuit appellate decisions, we may make an independent decision when we disagree with another panel. Lopez, 633 So. 2d at 1151. We reviewed how Diaz interpreted Custer Med. Center v. United Auto. Ins. Co.3. We disagree with Diaz‘s analysis and decline to follow it.
According to Diaz, Custer proposes that an EUO “cannot be a condition precedent,” and an insurer “cannot prevail on a condition precedent defense.” 18 Fla. L. Weekly Supp. 348a. Diaz asserts that Custer “called into question” an insurance contract’s EUO provision “if such a provision” contravenes the “PIP statute.” Id. Diaz reasoned:
[T]o the extent that a PIP policy may include an EUO provision at all, any such provision clearly cannot be contrary to the statute, or impose any greater limitation or restriction upon the insured, than the statute does. Construing an EUO provision as a condition precedent to coverage or the recovery of PIP benefits, [sic] conflicts with the PIP statute to the extent that the statute itself does not make attendance at an EUO a condition precedent.
Id. According to Diaz, Custer‘s first footnote conveyed that an EUO in the PIP context “ ‘is invalid and more restrictive than permitted under the statutory provisions’,” and the prohibition “ ‘of policy exclusions, limitations, and non-statutory condition on coverage controlled by statute is clear’.” 18 Fla. L. Weekly Supp. 348a (citing Custer, 35 Fla. L. Weekly S640a n.1).4 Cursorily interpreting Custer suggests that EUOs may no longer operate as valid contractual provisions. However, we interpret these statements contextually. We diverge from Diaz after reviewing the footnote’s entirety. Custer‘s first footnote states:
The concept of a verbal examination under oath is not relevant due to the posture of this case and positions of the parties. The only argument in this case at the trial court, circuit court, and district court of appeal was based upon medical exams and the failure to attend medical exams.
35 Fla. L. Weekly S640a n.1 (emphasis added).
We consider whether Custer‘s EUO statements constitute obiter dicta or precedent. As to obiter dicta, a district court clarified that:
[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple. While such dictum may furnish insight into the philosophical views of the judge or the court, it has no precedential value.
Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975) (emphasis added). Custer‘s first footnote’s determination that the EUO provided no relevance due to the procedural posture strongly opposes relying upon such statement as precedent. We give deference to the Florida Supreme Court’s perspective, but we interpret Custer‘s EUO statements as obiter dicta and conclude that the instant EUO provision functions as a valid contractual5 provision.II.
The provider contends that it rebutted the mailing presumption by presenting evidence that the insurer did not properly address the correspondence and that doubt exists as to whether the claimant received the correspondence scheduling the EUOs. We disagree.
“ ‘[W]hen something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the addressee’.” Torrey v. Torrey, 815 So. 2d 773, 775; 27 Fla. L. Weekly D1083a (Fla. 4th DCA 2002). While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create a factual issue for the court’s resolution. Id. at 775.
During her deposition, the claim representative testified that the insurer sent a letter for the claimant to 1156 NE 112th Street, and the postal service did not return this document (R. 273:5-7). Therefore, the presumption arises that the claimant received the letter. As for rebutting this presumption, the provider did not submit the claimant’s sworn affidavit averring that he did not receive notice at 1156 NE 112th Street.6 The claimant did not appear for any requested deposition and testify that he did not receive the request at 1156 NE 112th Street. Furthermore, the provider’s response to the summary judgment motion did not reference any document rebutting this presumption.7 Absent a sworn affidavit, the provider did not challenge this presumption. We presume that the claimant received the EUO request.III.
The medical provider suggests that we must analyze whether the insurer demonstrated the claimant’s unreasonable refusal to submit to an EUO. We first consider whether the insurer reasonably requested the EUO.
Amador v. United. Auto. Ins. Co. concluded that the insurer’s request for an EUO beyond the 30-day statutory period was unreasonable. 748 So. 2d 307, 308-309; 24 Fla. L. Weekly D2437a (Fla. 3d DCA 1999). See United Auto. Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 Fla. L. Weekly Supp. 437a (Fla. 11th Cir. Ct. Feb. 17, 2005). Amador required the county court to determine (1) when the provider notified the insurer about its claim and (2) whether the insurer requested the EUO within thirty (30) days after receiving the claim.
Here, the lower tribunal did not calculate whether the insurer requested the first EUO within the section 627.736(4)(b) thirty (30) days timeframe. When a court uses an improper legal standard to render a summary judgment, reversible error infects the judgment. State Farm Florida Ins. Co. v. Loo, 27 So. 3d 747, 751; 35 Fla. L. Weekly D352a (Fla. 3d DCA 2010). As an alternative to remanding the motion, we independently review the summary judgment evidence. Id. at 751. Here, the claim adjuster averred that the insurer received the provider’s bills in November 2004 (R. 35, ¶ 8). The provider’s response to the summary judgment did not dispute this date. Id. at 194. The litigants did not dispute that the insurer mailed a letter, dated November 24, 2004, notifying the claimant about the EUO. We conclude that the insurer reasonably requested the EUO within thirty (30) days.IV.
We next consider whether the failure to attend the EUO contractually bars this action. Insurance policy provisions requiring a claimant to submit to an EUO constitute “conditions precedent to suit.” Goldman, 660 So. 2d at 304 (emphasis added). If an insurance policy requires an EUO, the claimant must attend it in accord with the policy. Am. Reliance Ins. Co. v. Riggins, 604 So. 2d 535, 535-536; 17 Fla. L. Weekly D1886 (Fla. 3d DCA 1992). Failing to submit to an EUO materially breaches the policy “which will relieve the insurer” from liability. Stringer v. Fireman’s Fund Ins. Co., 622 So. 2d 145, 146; 18 Fla. L. Weekly D1753 (Fla. 3d DCA 1993). “[W]hen an insured assigns his [or her] benefits to a healthcare provider, the obligation to attend an EUO remains with the insured.” Marlin Diagnostics v. State Farm Mutual Auto. Ins. Co., 897 So. 2d 469, 470; 29 Fla. L. Weekly D2828b (Fla. 3d DCA 2004).
The undisputed policy provision states:
The person making a claim also shall: . . . answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers.
There is no right of action against us: . . . until all the terms of this policy have been met.
(emphasis added). We reviewed the policy provisions de novo. AMICA Mutual Ins. Co. v. Drummond, 970 So. 2d 456, 459 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2907a].
Here, the claimant failed to comply with a condition precedent before the provider commenced this action. “A no action clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies” with the provision. Wright v. Life Ins. Co. of Georgia, 762 So. 2d 992, 993; 25 Fla. L. Weekly D1527b (Fla. 4th DCA 2000); Goldman, 660 So. 2d at 306. We hold that this no action clause bars this litigation. “Generally, the proper remedy for premature litigation is an abatement or stay of the claim.” Wright, 762 So. 2d at 993. However, “any belated compliance by appellants more than two (2) years subsequent to the loss and the commencement of suit would satisfy neither the spirit nor intent of the policy conditions.” Goldman, 660 So. 2d at 305 (footnote omitted). Here, more than six (6) years passed since the date of loss and when the provider filed its complaint. On Goldman‘s authority, we vacate the final judgment and summary judgment. We remand for a dismissal with prejudice.V.
Because we remand for a dismissal with prejudice, the insurer will obtain a judgment releasing it from liability. We grant the insurer’s motion for section 768.79(1) appellate attorney’s fees.
REVERSED and REMANDED FOR DISMISSAL WITH PREJUDICE.
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1The insurer also raised arguments regarding (1) the denial of a directed verdict; (2) striking the adjuster as a witness evading service; (3) excluding the claimant’s past medical records and granting a directed verdict as to reasonable, relatedness, and necessity; and (4) the refusal to permit amendment to the answer.
2The district court’s decision to deny second-tier certiorari relief does not require that we follow Diaz as precedent. Shaps v. Provident Life & Accident Ins. Co., 826 So. 2d 250, 253 (Fla. 2002) [27 Fla. L. Weekly S710a].
335 Fla. L. Weekly S640a (Fla. Nov. 4, 2010).
4Custer also discussed Goldman v. State Farm Gen. Ins. Co., 660 So. 2d 300; 20 Fla. L. Weekly D1844a (Fla. 4th DCA 1995): “Goldman involved a homeowner’s insurance policy and the insured’s failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” 35 Fla. L. Weekly S640a at 3 (emphasis added and removed; internal citations removed).
5The obligation to attend an EUO stems from contract. Goldman, 660 So. 2d at 305.
6During the hearing, the provider’s counsel raised this assertion (Hr. Tr. 14:18-24, Mar. 10, 2008). Absent an affidavit, counsel’s argument did not rebut the presumption.
7The provider’s answer brief did not cite to an affidavit regarding the 1156 NE 112th Street address. See Answer Br. 13-21.
