19 Fla. L. Weekly Supp. 83b

Online Reference: FLWSUPP 1902SMALInsurance — Personal injury protection — Examination under oath — EUO is not condition precedent to obtaining PIP benefits; it is condition subsequent, and failure to attend divests insured of future benefits — Because insurer did not plead affirmative defense of breach of condition subsequent, insurer is precluded from relying on defense before trial court — Even if insurer could amend pleadings to allege defense of breach of condition subsequent, defense is fatally flawed where requirement that insured submit to EUO without counsel renders EUO provision invalid — Trial court correctly granted insurer’s motion for summary judgment

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, vs. DR. MARSHALL BRONSTEIN, D.C., a/a/o Sherita Small, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-586 AP. L.C. Case No. 07-04973 SP23 (04). November 2, 2011. On Appeal from the County Court for Miami-Dade County. Eric Hendon, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.

(Before TRAWICK, BLOOM, and ZABEL, JJ.)[Original Opinion at 18 Fla. L. Weekly Supp. 764a;Substituted Opinion at 18 Fla. L. Weekly Supp. 1115a]

(TRAWICK, Judge.) In response to the Appellee’s Motion for Rehearing and Appellee’s Motion for Clarification, this Court’s opinions filed on July 22, 2011 and on September 19, 2011 are withdrawn, and the following opinion is issued in their place.

This is an appeal by United Automobile Insurance Company (hereinafter referred to as United”) seeking reversal of the trial court’s order granting summary judgment in favor of the Appellee, Dr. Michael Bronstein (hereinafter referred to as “Appellee”). The trial court found that United had waived its affirmative defense involving Insured’s failure to attend an Examination Under Oath (hereinafter referred to as “EUO”) by requesting that Insured attend an Independent Medical Examination (hereinafter referred to as “IME”), after United alleged Insured had forfeited her benefits. After granting the Appellee’s motion for summary judgment, the trial court entered final judgment in favor of the Appellee. We affirm the decision of the trial court, albeit for reasons different from those relied upon by the trial court.

FACTS AND PROCEDURAL HISTORY

On December 16, 2005, Sherita Small (hereinafter referred to as “Insured”) was injured in a car accident and was subsequently treated by Appellee, to whom she assigned payment of her Personal Injury Protection benefits (hereinafter referred to as “PIP benefits”) from her automobile insurance policy with the United.

United requested that the Insured attend a EUO on January 26, 2006 or January 30, 2006. The Insured’s attorney rescheduled the EUO for February 18, 2006. However, the Insured did not attend the rescheduled EUO. On March 10, 2006, after the Appellee sent bills for the Insured’s treatment to United, United responded with a letter denying the claim, stating: “[P]atient has Failed to Attend a Properly Rescheduled-Examination Under Oath”. The letter also noted that if there was additional information that would affect the decision to deny benefits, the insured should contact United to reopen the file and reconsider their position.

United subsequently requested that Insured submit to an IME, which Insured attended on February 23, 2006. On March 14, 2006 United notified Insured that it would be suspending benefits based on the IME Insured had attended. As a result, the Appellee filed a complaint against United for breach of contract due to their denial of Insured’s claim. In its answer, United denied that the treatment was reasonable, related and necessary, and raised the affirmative defense that Insured was not entitled to benefits since she failed to attend the EUO, which United alleged was a condition precedent to the recovery of PIP benefits. The Appellee moved to strike all of United’s defenses as legally insufficient. The parties later agreed to strike all defenses except the affirmative defense of failure to appear at a EUO and agreed that United would serve an amended answer by July 26,2007. United did not file its amended answer until December 17, 2007, over four months late, alleging the affirmative defense that Insured failed to satisfy the condition precedent to payment of benefits by failing to attend an EUO without a valid reason, notice or excuse.

United filed a motion for summary judgment on its EUO affirmative defense, arguing that the EUO provision was a valid condition precedent to obtaining PIP benefits and that Insured failed to attend the EUO without a valid reason. As a result, United argued, Insured “unreasonably refused” to attend the scheduled EUO. The Appellee filed a motion for summary judgment on the EUO affirmative defense contending that: (1) the EOU defense was not properly before the court because the amended answer and affirmative defenses were filed almost five months late; (2) attendance at an EUO as part of a PIP claim is not a condition precedent but rather a condition subsequent under the policy’s cooperation clause, which requires that insurer establish prejudice in order to deny benefits; (3) the rescheduling of the EUO was set for more than 30 days after the receipt of bills and therefore was untimely; (4) United waived its right to enforce the forfeiture of benefits based upon Insured’s failure to attend the EUO because after the failure to attend, United asked Insured to submit to an IME. In support of its motion, the Appellee submitted an affidavit of Insured where she stated that she could not attend the originally scheduled EUO appointment because of work related activities. She did not give a reason for her failure to attend the rescheduled EUO appointment.

The trial court denied United’s motion for summary judgment, finding that United had waived it right to rely on the EUO defense because they continued to investigate the case by requesting Insured attend an IME after she had failed to appear at the EUO. The trial court granted the Appellee’s motion for summary judgment on United’s affirmative defense, again finding that United had waived its affirmative defense. Final judgment was entered in favor of the Appellee. It is from this judgment that United now appeals.

United argues that the trial court should not have granted the Appellee’s motion for summary judgment because (1) an EUO provision in an insurance policy is a valid condition precedent to the recovery of PIP benefits; (2) United established that the insured unreasonably failed to attend the EUO; (3) the trial court erred in its finding of estoppel by waiver; and (4) even if the facts supported the legal theory of waiver by estoppel, the court should not have granted the Appellee’s motion for summary judgment because the determination of whether United waived its forfeiture defense is a question of fact precluding summary judgment.

ANALYSIS

In granting summary judgment, “the pleadings and summary judgment evidence on file must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Fla. R. Civ. P. 1.510(c).

In Custer v. United Automobile Ins. Co., 35 Fla. L. Weekly S640a (Fla. May 18, 2011), the plaintiff provider was denied payment of PIP benefits because the insured failed to appear for a scheduled IME. The county court directed a verdict in favor of the insurer, finding that the insured’s failure to attend “was unreasonable as a matter of law”. The Circuit Court Appellate Division reversed. Subsequently, on second tier certiorari review, the Third District Court of Appeal rejected the circuit court’s analysis, reinstating the county court’s decision. On certiorari, the Florida Supreme Court held that directed verdict was unwarranted because a determination of unreasonableness on the part of the insured is a question of fact for the fact-finder to make at trial. The Court also held that attendance at IMEs and EUOs are not valid conditions precedent, but rather, conditions subsequent, as an insured’s unreasonable failure to appear at an IME or EUO renders the insurer no longer liable for subsequent PIP benefits. Id.¹ The Court additionally found that when alleging a failure to appear at an IME as an affirmative defense, the defendant bears the burden of proving the failure to appear was unreasonable. However, an insured’s mere failure to appear does not, in and of itself, constitute an unreasonable failure to appear. Id. The Court quoted Haiman v. Federal Ins. Co., 798 So.2d 811 (Fla. 4th DCA. 2001) [26 Fla. L. Weekly D2542a] stating “when the insured cooperates to some degree or provides an explanation for its non-compliance, a fact question is presented for resolution by a jury.” Haiman, 798 So.2d at 812.

In light of the Custer decision, this Court rejects United’s argument that the EUO was a condition precedent to the obtaining of PIP benefits. We find 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. However, as United failed to plead the affirmative defense of a breach of a condition subsequent, they are precluded from relying on such a defense before the trial court. Blanton v. Baltuskouis, 20 So.3d 881 (4th DCA 2009) [34 Fla. L. Weekly D1799d]. Even if United’s pleadings could be amended to allege the affirmative defense of breach of a condition subsequent, United’s defense is still fatally flawed. Requiring the Insured to submit to a EUO without counsel, as required by United’s policy here, renders the EUO provision invalid as a matter of law. See Custer Medical Center, Inc. (a/a/o Maximo Masis) v. United Auto Ins. Co., 62 So.3d 1086, 1089 n.1 (Fla. 2010) [35 Fla. L. Weekly S640a] (requirement for an EUO without counsel in PIP context is invalid as such a requirement is not supported by statutory provisions).

The trial court correctly granted Appellee’s motion for summary judgment. In light of our opinion herein, the Appellant’s Motion for Rehearing as to the Court’s prior order Granting Appellee’s Attorney’s Fees is denied.

The decision of the trial court below is Affirmed.

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¹While Custer involved an IME, the Court, in what is at the very least highly persuasive dicta, applied the same analysis to EUOs.

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