19 Fla. L. Weekly Supp. 380a
Online Reference: FLWSUPP 1905MONTInsurance — Personal injury protection — Examination under oath — Failure of insured to attend EUO does not bar payment of PIP benefits
Y & M MEDICAL CENTER, a/a/o EMIGDIO MONTENEGRO, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-00131 SP 26 (04). January 18, 2012. Michaelle Gonzalez-Paulson, Judge. Counsel: Maria Corredor, Law Offices of Corredor & Husseini, P.A., Miami, for Plaintiff. Fernando Roig, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT ON ISSUE OFEMIGDIO MONTENEGRO’S ATTENDANCEAT AN EXAMINATION UNDER OATH
THIS CAUSE came before the Court on the 10th day of March, 2011, and again on the 5th day of January 2012, on Defendant’s Motion for Final Summary Judgment (on issue of Emigdio Montenegro’s attendance at an examination under oath) and Plaintiff’s Amended Response and Cross-Motion for Summary Judgment, and after hearing argument of counsel, being fully briefed on the matter, and otherwise being duly advised, the Court finds as follows:
On June 27, 2005 Emigdio Montenegro was involved in an automobile accident. He was insured with State Farm Fire & Casualty Company. He assigned his personal injury protection (PIP) benefits under the policy to Y & M Medical Center. Y & M performed x-rays of Montenegro. Y & M timely submitted its bill for reimbursement to State Farm on August 19, 2005. In the interim, State Farm had attempted to schedule Montenegro for an examination under oath (EUO) to take place on August 23, 2005. Montenegro did not attend. State Farm failed to reimburse Y & M for its services, and a lawsuit was subsequently filed for payment of PIP benefits.
The parties filed cross motions for summary judgment on the EUO issue. State Farm argued that the failure to attend the EUO was a breach of the insurance policy entitling it to a final judgment. Y & M argued on various grounds that the failure to attend the EUO was not a bar to payment.
The Court considered the cross motions on March 10, 2011. The Court was inclined to grant the Plaintiff’s motion for final summary judgment but deferred ruling at that time to await the finality of Custer Medical Center v. United Automobile Insurance Company, 62 So.3d 1086 (Fla. 2011) [35 Fla. L. Weekly S640a]. The Court made clear at the March 10 hearing that if Custer did not change, the Plaintiff’s motion would be granted and a final judgment would be entered. While Custer became final May 18, 2011, the trial judge was transferred from the division in the interim and a final judgment was not entered.
After the undersigned was assigned to the division, Y & M requested that a final judgment be entered pursuant to the March 10, 2011 order. On November 1, 2011 State Farm filed a memorandum of law and requested additional argument on the issue. Y & M filed a motion to strike Defendant’s memorandum, or in the alternative, a response. A hearing was held on January 5, 2012 to address the issues.
An EUO policy provision in the context of PIP is not a condition precedent to coverage or recovery of PIP benefits as it conflicts with the Florida No-Fault law. Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2011) [35 Fla. L. Weekly S640a]; United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (11th Cir. Ct. (Appellate) Feb. 3, 2011). “[T]he PIP statute does not impose an EUO condition upon the insured.” United v. Diaz. While an insurer may seek to require an EUO through its policy where a PIP claim is presented, the Court finds that failure for the insured to attend an EUO does not serve as a bar to payment of PIP benefits. See Mejias Medical Center a/a/o Yordanka Bulit v. Esurance, 18 Fla. L. Weekly Supp. 693d (11th Cty Ct., Feb. 3, 2011). In reaching this conclusion, the Court has considered Mercury Insurance Company v. Dr. Garrido a/a/o Erix Dolz, 18 Fla. L. Weekly Supp. 575a (11th Cir. Ct. (Appellate) Apr. 7, 2011) (finding that an EUO provision is not a condition precedent to recovery of benefits and calling into question the validity of such provisions) and State Farm Fire & Casualty Company v. Suncare Physical Therapy, 18 Fla. L. Weekly Supp. 776a (11th Cir. Ct. (Appellate) July 13, 2011) (finding an EUO provision is a valid condition precedent to suit). The Court rules consistent with the rulings of Diaz and Garrido. Accordingly, it is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Amended Cross Motion for Final Summary Judgment is GRANTED; Defendant’s Motion for Final Summary Judgment is DENIED. Plaintiff is entitled to a final judgment as there are no issues remaining in this matter.
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