19 Fla. L. Weekly Supp. 213a
Online Reference: FLWSUPP 1903CHARInsurance — Personal injury protection — Examination under oath — Declaratory judgment — Insured was not required to attend EUO
DEFRAN MEDICAL ASSOCIATES CORP., a Florida Corporation (assignee of Charris, Judith) AND JUDITH CHARRIS, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-10518 CC 23 (5). December 1, 2011. Charles K. Johnson, Judge. Counsel: Russel Lazega and Yasmin Gilinsky, Law Office of Russel Lazega, North Miami, for Plaintiff.
FINAL JUDGMENT FOR DECLARATORY RELIEFIN FAVOR OF PLAINTIFF, JUDITH CHARRIS
THIS CAUSE having come before the Court for hearing on November 10, 2011 on Plaintiff, Judith Charris,’ Motion for Final Summary/Declaratory Judgment and the Court having considered the matter and heard argument finds as follows:
Factual Background: This is a declaratory action filed by Judith Charris (hereafter “Plaintiff”) which seeks this Court to declare the her rights and obligations under the policy of insurance and the P.I.P. statute as it relates to the examination under oath (hereafter “EUO”) set by the Defendant on November 1, 2010, nearly two years after the inception of the claim. Plaintiff maintains that she was not required to attend the EUO because 1) the EUO was untimely requested, well after 30 days of receipt of the medical bills in question, see Amador v. United Automobile Insurance Company, 748 So.2d 307 (Fla. App. 3d DCA 1999) [24 Fla. L. Weekly D2437a] and State Farm Mutual Automobile Ins. Co. v. Jenkins, 767 So.2d 622, 622-23 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2245a], and 2) EUOs in the PIP context are invalid, see Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 35 Fla. L. Weekly S640a (Fla. 2010). Defendant maintains that Plaintiff is still required to attend an EUO as a condition subsequent pursuant to the policy language notwithstanding her assignment of benefits to Defran Medical Associates Corp. Plaintiff responds that under Amador Defendant is already in breach and the EUO is untimely.
Legal Conclusion: This Court finds that the Plaintiff was not required to attend an EUO based upon Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 35 Fla. L. Weekly S640a (Fla. 2010) and, therefore, enters final judgment as to Plaintiff’s Count for Declaratory Relief as to the issue of whether Defendant was permitted to request her attendance at an EUO where the PIP statute contains no such requirement. This Court reserves ruling as to the issue of Plaintiff’s entitlement to attorneys fees and costs.
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