20 Fla. L. Weekly Supp. 701a
Online Reference: FLWSUPP 2007PELAInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath is not valid condition precedent to coverage under PIP policy
THE PERSONAL INJURY CLINIC (A/A/O JULIAN PELAEZ), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-5183 SP 21. May 3, 2013. Honorable Jacqueline Schwartz, Judge. Counsel: Ryan Peterson, The Patiño Law Firm, Hialeah, for Plaintiff. Camille Riviere, Office of the General Counsel, Miami Gardens, for Defendant.
ORDER GRANTING FINAL JUDGMENT
The Court having reviewed the Court file and having been otherwise advised it is hereupon, ORDERED AND ADJUDGED as follows:
In this case, the Plaintiff moved for summary judgment. The Plaintiff, a medical provider seeking reimbursement in a PIP claim, has filed a claim for PIP benefits from United Automobile Insurance Company. The Plaintiff submitted medical bills to the United in the amount of $4140 for the treatment of United’s named insured, Julian Pelaez, for dates of service 4/28/10 to 7/13/2010. The Plaintiff has presented evidence that the insured was in an accident, and that the bills were reasonable, related, and necessary. No counter evidence to that evidence has been presented by the Defendant.
In a summary judgment, “[w]hen the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a]. The Defendant has pled two affirmative defenses — first that the bill of date of service May 26, 2010 for $290.00 was sent late and is not compensible pursuant to Fla. Stat. 627.736(5). The Plaintiff previously conceded to that defense. The second defense suggests that the insured failed to attend an examination under oath.
This Court is familiar with the cases in the 11th Circuit interpreting Custer Medical Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a] vis-a-vis an EUO, including T&M Diagnostic v. State Farm, 20 Fla. L. Weekly Supp. 373a (Fla. 11th Circ. App., 2013), Central Therapy v. State Farm, 19 Fla. L. Weekly Supp. 625a (Fla. 11th Circ. App., 2013), Mercury Insurance Company v. Dr. Garrido a/a/o Erix Dolz, 18 Fla. L. Weekly Supp. 575a (11th Circ. App., 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 Circ. App., 2011) (finding an EUO provision is a valid condition precedent to suit), as well as United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (11th Circ. App., 2011). This Court finds that the Diaz reasoning (that an EUO in the pre-2013 PIP statute is invalid, and is not a condition precedent in light of Custer) is the most persuasive, and accordingly finds the Defendant’s affirmative defense related to the same to be legally insufficient, and invalid.
United Auto had requested a stay of this action pending the Supreme Court of Florida’s case Nunez v. GEICO General Ins. Co., SC12-650, (Fla. 2013) [38 Fla. L. Weekly S440a], however, “to allow trial courts to stay cases until cases which resolve pending issues are determine by the supreme court would lead to inordinate delay and confusion at the trial level.” Williams v. Edwards, 604 So.2d 930 (Fla. 5th DCA, 1992) [17 Fla. L. Weekly D2164] (Finding an abuse of discretion where a court stayed a case pending Florida Supreme Court review of unrelated case with similar issue).
As such, this Court grants the Plaintiff’s Motion for Final Summary Judgment, and awards the Plaintiff $3850 plus six percent interest from 8/18/2010 to today (989 days at 0.0001644 per day per dollar) which is 625.98, for a total amount of 4475.98, sums for which let execution issue. Said amount will accrue from this date at a rate of 4.75%
The Court recognizes the Plaintiff’s entitlement to a reasonable attorney fee pursuant to Fla. Stat. 627.736(8) and 627.428, and reserves jurisdiction to determine and award the appropriate amount.
* * *
