19 Fla. L. Weekly Supp. 625a
Online Reference: FLWSUPP 1908ARRIInsurance — Personal injury protection — Examination under oath — Failure to attend — Attendance at EUO is not condition precedent to filing PIP suit for recovery of PIP benefits — Error to enter summary judgment in favor of insurer based on ground of unreasonable refusal to attend EUO that was not pled as affirmative defense
CENTRAL THERAPY CENTER, INC., A/A/O ENRIQUE ARRIETA, Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-458 AP. L.C. Case No. 07-7393 SP 25. April 24, 2012. On appeal from the County Court for Miami-Dade County, Nuria Saenz, Judge. Counsel: Rima C. Bardawil, Law Office of Rima C. Bardawil, P.A., for Appellant. Doulgas H. Stein, Seipp & Flick, LLP, for Appellee.
(Before FARINA, LOPEZ and THORNTON, JJ.)
(LOPEZ, Judge.) Appellant Central Therapy Center, Inc., assignee of Enrique Arrieta, (“Central Therapy”) brings this appeal to reverse a final judgment based upon the trial court’s grant of a motion for summary judgment in favor of Appellee State Farm Fire and Casualty Company, (“State Farm”). The Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).
FACTS AND PROCEDURAL HISTORY
Mr. Enrique Arrieta sought treatment from and assigned his rights to Central Therapy for injuries he sustained in automobile accident.1 Central Therapy submitted three sets of bills to State Farm seeking payment for medical treatment of Mr. Arrieta. The first set of bills was for service from December 13, 2006 through December 29, 2006. The second set of bills was for service from February 3, 2007 through February 5, 2007. The third set of bills was for service from February 6, 2007 through March 3, 2007.
State Farm scheduled Mr. Arrieta for an Examination Under Oath (EUO), to be taken on February 16, 2007. State Farm did not appear at the scheduled EUO. State Farm scheduled a second EUO for February 28, 2007. However, Mr. Arrieta did not appear at the second EUO. As a result of Mr. Arrieta not attending the February 28, 2007 EOU, State Farm denied payment to Central Therapy. Thereafter, Central Therapy filed suit against State Farm for its failure to comply with section 627.736 of the Florida Statutes.
In its Second Amended Answer, Affirmative Defenses and Demand for Jury Trial, State Farm alleges that Central Therapy should not be entitled to collect in part or in full for the medical services rendered to Mr. Arrieta because he failed to appear for his EUO on February 28, 2007. Thereafter, State Farm filed a Motion for Summary Judgment on the EUO issue, and Central Therapy filed a Cross Motion for Summary Judgment. The trial court held a hearing on both motions, and entered an Order on May 27, 2010.2 On June 1, 2010, the trial court entered an Amended Order on the Motions for Summary Judgment with one major change. In its June 1, 2010 Order, the trial court denied Central Therapy’s Cross Motion to Notice, but it did not grant Center Therapy’s Motion as to the other issues.3 Subsequently, State Farm filed a Motion for Clarification of Amended Order dated June 1, 2010.
On July 30, 2010, the trial court entered an Order Granting State Farm’s Motion for Clarification and Amended Motion for Final Summary Judgment. In part, the trial court’s July 30, 2010 order provided “. . . claimant, Enrique Arrieta, unreasonably refused to attend the EUO set on February 28, 2007, after proper notice.” Central Therapy filed its Motion for Rehearing and Amendment of Judgment Granting Defendant’s [State Farm’s] Motion for Final Summary Judgment Regarding Attendance at Examinations Under Oath. The trial court denied Central Therapy’s Motion for Rehearing and entered a Final Judgment in favor of State Farm. Thereafter, Central Therapy filed an appeal.
STANDARD OF REVIEW
This Court reviews a summary judgment de novo. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Id. If the “slightest doubt” exists, we must reverse. Interested Underwriters v. SeaFreight Line, Ltd., 971 So. 2d 892, 894 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2829a] (citing Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]).
DISCUSSION
Central Therapy asserts four grounds as the basis of its appeal: (1) the trial court committed reversible error in granting State Farm’s Motion for Summary Judgment as genuine issues of material fact existed, (2) the trial committed reversible error by granting State Farm’s Motion for Final Summary Judgment in light of the recent reversal of the leading case dispositive on the issue, (3) the trial court committed reversible error because it placed the burden of State Farm’s affirmative defense of failure to fulfill a condition precedent upon Central Therapy and granted final summary judgment on a ground never pled, and alternatively, (4) the trial court committed reversible error in failing to grant Central Therapy summary judgment regarding the first set of bills. For the reasons provided below, we reverse the final summary judgment entered in State Farm’s favor, and we remand the matter for further proceedings.Affirmative Defense
“An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action, and the plaintiff is not bound to prove that the affirmative defense does not exist.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010) [35 Fla. L. Weekly S640a]. A defending party’s assertion that a plaintiff has failed to satisfy a condition precedent to trigger contractual duties under an agreement is viewed as an affirmative defense. Id. The record evidence demonstrates that in its Second Amended Answer, State Farm alleged as an affirmative defense that Central Therapy was not entitled to collect in part or in full because Mr. Arrieta failed to comply with a condition precedent of the insurance policy by failing to appear for his EUO on February 28, 2007. Further, State Farm argues that “an insured’s failure to satisfy his obligation to attend an EUO is a material breach of the insurance policy, as well as a failure to satisfy a condition precedent to filing suit that relieves an insurer of its obligation to pay.”
In light of Custer, 62 So. 3d at 1086, we disagree with State Farm’s contention that the EUO was a condition precedent to filing a lawsuit for PIP benefits or recovery of PIP benefits. The Custer Court states:
A purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage and the terms and limitations permitted under the statutory provisions. The prohibition of policy exclusions, limitations, and non-statutory conditions on coverage controlled by statute is clear. See Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002) [27 Fla. L. Weekly S499a] (noting 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 1, 5 (Fla.1972) (recognizing that insurance coverage that is a creature of statute is not susceptible to the attempts of the insurer to limit or negate the protection afforded by the law); Mullis v. State Farm Mut. Auto. Ins. Co., 252 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 Fire & Casualty Co., 19 So.3d 996, 1000 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1046a] (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 different 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.
63 So. 3d at 1089 n. 1; see also United Auto. Ins. Co. v. Dr. Marshall Bronstein, D.C., a/a/o Sherita Small, 19 Fla. L. Weekly Supp. 83b (Fla. 11th Cir. Ct. Nov. 2, 2011) (relying on the Custer decision from the Florida Supreme Court and finding “that insured’s failure to appear at the EUO, if proved by United to be unreasonable, would be a condition subsequent that divested insured of future PIP benefits.”); Mercury Ins. Co. of Fla. v. Dr. Eduardo Garrido, P.A., a/a/o Erix Dolz, 18 Fla. L. Weekly Supp. 575a (Fla. 1 1th Cir. Ct. Apr. 7, 2011) (noting that although the trial court sent the issue of whether the insured unreasonably refused to submit to an EUO to the jury, the trial court incorrectly determined that an EUO is a “condition precedent” in the context of statutorily mandated insurance coverage); United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. 11th Cir. Ct. Feb. 3, 2011) (finding the Florida Supreme Court’s rationale in Custer, 35 Fla. L. Weekly as S640a, and its result, equally apply in the context of an EUO No-Show defense).Unreasonable Refusal not Pled as an Affirmative Defense
Furthermore, a defendant must prove its own affirmative defense. Custer, 62 So. 3d at 1097; see also Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So.2d 46, 48 (Fla. 1988) (“Failure to raise an affirmative defense prior to a plaintiffs motion for summary judgment constitutes a waiver of that defense.”) (citing Wyman v. Robbins, 513 So.2d 230 (Fla. 1st DCA 1987)). A review of the record evidence demonstrates that in its pleadings, State Farm did not allege as an affirmative defense that Mr. Arrieta unreasonably refused to attend his EUO. Despite State Farm not alleging unreasonable refusal as an affirmative defense, in its July 30, 2009 Order granting State Motion for Clarification and Motion for Final Summary Judgment, the trial court adjudged that “the record evidence before the Court established that the claimant, Enrique Arrieta, unreasonably refused to attend the EUO set on February 28, 2007, after proper notice.” In this instance, the trial court erred by entering a summary judgment in State Farm’s favor, based on grounds that were not pled as an affirmative defense. Therefore, we must reverse and remand the cause to the trial court for proceedings consistent with this opinion.
REVERSED and REMANDED. (FARINA and THORNTON, JJ., concur.)
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1Mr. Arrieta was insured for Personal Injury Protection (PIP) benefits with State Farm pursuant to an insurance policy issued to Ms. Rita Campos.
2The May 27, 2010 Order provided:
(1) The Defendant’s [State Farm] Motion as to EUO No Show is granted only as to Notice and denied as to all other issues; therefore Plaintiff’s [Central Therapy] Cross Motion is denied as to Notice and granted as to other issues;
(2) The Plaintiff’s [Central Therapy] Motion as to RRN is denied without prejudice; and
(3) The letter of Enrique Arrieta is stricken as it does not meet the requirements of an affidavit.
3Central Therapy outlines three issues in its Cross Motion for Final Summary Judgment: (1) the Claimant was not properly notified; (2) State Farm has failed to establish that alleged attendance was unreasonable; and (3) State Farm has failed to establish that alleged non-cooperation was material.
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