23 Fla. L. Weekly Supp. 881a
Online Reference: FLWSUPP 2308NEILInsurance — Personal injury protection — Examination under oath — Failure to attend — Insured that failed to attend three EUOs failed to satisfy condition precedent to receipt of PIP benefits — Medical provider/assignee is not entitled to benefits due to insured’s failure to satisfy condition precedent — Failure to schedule EUO and make payment within thirty days did not deprive insurer of right to contest payment — Questions certified: Whether Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999) has been overruled by Statute or United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001); and whether Section 627.736(4)(b) requires a P.I.P. insurer to request an EUO within thirty days of written notice of a covered loss, when the policy of insurance incorporates the statutory condition precedent to receiving benefits as provided for in section 627.736(6)(g), or is it forever waived.
ATLANTIC COAST ORTHOPAEDICS, LLC., a/a/o, JERMAIN NEIL, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-018361, Division 54. January 29, 2016. On Motion for Rehearing March 4, 2016. Stephen J. Zaccor, Judge. Counsel: Todd Landau, Landau & Associates, Hallandale Beach, for Plaintiff. Susette Gruebele and Gregory Hoffman, Cole, Scott & Kissane, PA, Plantation, for Defendant.
[Order on Motion for Rehearing published below.]
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This cause came before the court on January 25, 2016 on Defendant’s Motion for Summary Judgment based upon a failure to attend multiple examinations under oath (hereinafter EUO’s.) After reviewing the pleadings, affidavits, the evidence, the rest of the record, and after hearing argument of counsel for the parties, the court hereby grants Summary Judgment in favor of the Defendant.
ANALYSIS AND FINDINGS OF FACT
Atlantic Coast Orthopaedics (hereinafter the Plaintiff), as an assignee of Jermain Neil (hereinafter the Assignor), sued State Farm Mutual Automobile Insurance Co. (hereinafter the Defendant) for breach of a contract of personal injury protection benefits under Florida’s No Fault law. The Assignor was allegedly involved in a motor vehicle accident on January 20, 2014 and received treatment from the Plaintiff on February 11, 2014. The Defendant received the Plaintiff’s bill on March 8, 2014. Thirty-three days later, on April 9, 2014, the Defendant notified the Assignor’s attorney of a scheduled EUO. The Assignor did not appear for the scheduled EUO. He also failed to show for two subsequent EUO’s which were properly noticed to his attorney within the following three months. The Defendant did not pay the Plaintiff’s bill and this action was filed on September 25, 2014.
The Defendant’s Answer includes two affirmative defenses: The Plaintiff, standing in the shoes of the Assignor, is not entitled to benefits because the Assignor failed to satisfy a condition precedent when he failed to appear for three properly scheduled EUO’s; and the Plaintiff, standing in the shoes of the Assignor, cannot bring suit because the Assignor violated the policy’s No Suit clause.
Both parties agree there are no factual disputes. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952). The Defendant submitted evidence that the Assignor’s attorney was notified on three separate occasions for three separate EUO’s and the Assignor failed to appear each and every time. The Plaintiff does not dispute the Defendant’s evidence. The Plaintiff intended, albeit untimely, to offer evidence that the Defendant received its bill on March 8, 2014.
Fla. R. Civ. Pro. 1.510(c) provides in pertinent part:
. . .The adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing.
This motion for summary judgment was noticed for hearing on November 12, 2015 to be heard on Monday January 25, 2016 at 10:30 AM. On the afternoon of Friday January 22, 2016 the Plaintiff submitted its evidence and memorandum of law in opposition. That is less than one business day prior to the hearing and in violation of Rule 1.510(c). Therefore, the Plaintiff’s evidence will not be considered.
Assuming arguendo the Plaintiff’s evidence that the Defendant received the bill on March 8, 2014 was considered, it would not defeat the Defendant’s motion. This case is controlled by the version §627.736 of the Florida Statutes that went into effect on January 1, 2013. That version of the statute contained several revisions. Specifically sub-section (6)(g) was added, and reads:
(g) An insured seeking benefits under ss. 627.730-627.7405, including an omnibus insured, must comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath. The scope of questioning during the examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this paragraph is a condition precedent to receiving benefits. An insurer that, as a general business practice as determined by the office, requests an examination under oath of an insured or an omnibus insured without a reasonable basis is subject to s. 626.9541
(emphasis added). The Defendant incorporated the above statutory language into the applicable insurance policy1. More specifically, the policy reads2:
INSURED’S DUTIES
5. Questioning Under Oath
a. No Fault Coverage, each insured making claim or seeking payment, must at our option:
1. Submit to an examination under oath;
. . .Compliance with Questioning under oath is a condition precedent to receiving benefits.
Furthermore, the Exclusions section of the policy reads3 “THERE IS NO COVERAGE FOR: (3) ANY INSURED PERSON: (d) WHO REFUSES TO: SUBMIT TO, COMPLETE, OR FAILS TO APPEAR AT AN EXAMINATION UNDER OATH.”
Again, assuming arguendo, there was record evidence the Defendant received the Plaintiff’s bill on March 8, 2014, the Defendant’s first notification to the Assignor of its intent to take an EUO was thirty-three days later. The Plaintiff contends §627.736(4)(b) of Florida Statutes imposes a thirty day time limit for the Defendant to complete its investigation of the claim. Plaintiff relies on Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a], which held that an insurer could not use its investigative rights to toll the thirty day time limit provided for in sub-section (4)(b). The facts in Amador are nearly identical to the case at bar. Id. The insured were involved in a motor vehicle accident and sought benefits pursuant to their PIP policy. Id. United Auto scheduled an EUO over thirty days from receipt of the claim and in response the insured filed suit. Id. The trial court granted United’s motion for summary judgment predicated on the insured’s failure to attend the EUO. Id. The District Court overruled and held that once United failed to pay within the thirty days provided for in subsection (4)(b) they were in breach of the contract. Id.
The Amador court dealt with a different version of §627.736 of Florida Statutes than the 2013 version at issue here. First and foremost, sub-section (6)(g) now exists and makes attendance at an EUO a statutory condition precedent to receiving benefits. Sub-section (4)(b) is also different. It is now titled “Payment of Benefits” instead of “Benefits; When Due.” Subsequent to the Amador decision, the Fourth District Court of Appeal decided AIU Insurance Company v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a] wherein they wrote:
We interpret section 627.736(4) to mean that if PIP benefits are payable, they are due within thirty days after notice. If the insurer has refused to pay the bill within thirty days and does not have reasonable proof to establish that it is not responsible, then the insurer is liable for ten percent interest when the bill is paid. Failing to obtain proof that it is not responsible for payment, however, does not deprive the insurer of its right to contest payment.
In Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So.2d 384 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2495a] the court described §627.736(4) as “merely making the insurer liable for interest if payment is not made within 30 days from notice,” and “the function of the statute is to define when interest begins to accrue on unpaid PIP benefits.” The Plaintiff would have the court read the thirty day time period provided for in (4)(b) as something more. The Plaintiff’s reading of the statute imposes a thirty time frame for an Insurer to notice an EUO or waive its right to seek it. Such a reading would also run afoul of subsection (4)(b)(6) which came into effect in 2001, after Amador, and provides:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.
In summary, the statute makes an EUO a condition precedent to receiving benefits. The insurance policy at issue incorporates that statutory provision. The Defendant did not pay benefits within thirty days of receiving notice and would be liable for interest if they are required to pay. They attempted to schedule, and properly noticed, an EUO of the Assignor three times. As he failed to appear all three times, he failed to satisfy a condition precedent and is not entitled to benefits. As the Plaintiff stands in the shoes of the Assignor and is entitled to no greater rights or benefits than the Assignor, the Plaintiff is not entitled to benefits either. See, Fla. East Coast Railway Co. v. Eno, 128 So. 622 (Fla. 1930).
Accordingly, the Defendant’s Motion for Summary Judgment is hereby GRANTED.
__________________
1State Farm Form 9810A.
2State Farm Form 9810A, Page 38.
3State Farm Form 9810A, Pages 17-18.
__________________ORDER ON REHEARING OF DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
This cause came before the court on February 29, 2016 on the Plaintiff’s timely request for re-hearing of this Court’s January 29, 2016 order granting the Defendant’s Motion for Final Summary Judgment predicated upon a failure to attend multiple examinations under oath (hereinafter EUO’s). This Court hereby certifies the following questions to the District Court as ones of great public importance:
Whether Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a] has been overruled by Statute or United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a]; and
Whether Section 627.736(4)(b) of Florida Statutes requires a P.I.P. insurer to request an EUO within thirty days of written notice of a covered loss, when the policy of insurance incorporates the statutory condition precedent to receiving benefits as provided for in section 627.736(6)(g), or is it forever waived.
ANALYSIS
Atlantic Coast Orthopaedics (hereinafter the Plaintiff), as an assignee of Jermain Neil (hereinafter the Assignor), sued State Farm Mutual Automobile Insurance Co. (hereinafter the Defendant) for breach of a contract of personal injury protection benefits under Florida’s No Fault law. The Assignor was allegedly involved in a motor vehicle accident on January 20, 2014 and received treatment from the Plaintiff on February 11, 2014. The Defendant received the Plaintiff’s bill on March 8, 2014. Thirty-three days later, on April 9, 2014, the Defendant notified the Assignor’s attorney of a scheduled EUO. The Assignor did not appear for the scheduled EUO. He also failed to show for two subsequent EUO’s which were properly noticed to his attorney within the following three months. The Defendant did not pay the Plaintiff’s bill and this action was filed on September 25, 2014.
The Defendant’s Answer includes two affirmative defenses: The Plaintiff, standing in the shoes of the Assignor, is not entitled to benefits because the Assignor failed to satisfy a condition precedent when he failed to appear for three properly scheduled EUO’s; and the Plaintiff, standing in the shoes of the Assignor, cannot bring suit because the Assignor violated the policy’s No Suit clause.
Both parties agree there are no factual disputes. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952). The Plaintiff contends in its Motion for Rehearing that this Court ignored the precedent in Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a] and United Auto Ins. Co. v. Dr. Jason Marucci a/a/o Ruth Botero, 12 Fla. L. Weekly Supp. 1037a (Fla. 17th Cir. Ct. App. 2005). The facts in Amador are nearly identical to the case at bar. Id. The insured were involved in a motor vehicle accident and sought benefits pursuant to their PIP policy. Id. United Auto scheduled an EUO over thirty days from receipt of the claim and in response the assignee filed suit. Id. The trial court granted United’s motion for summary judgment predicated on the insured’s failure to attend the EUO. Id. The District Court overruled and held that once United failed to pay within the thirty days provided for in Section 627.736(4)(b) of Florida Statutes1 they were in breach of the contract and they could not use their investigative rights to toll the thirty day time limit. In United Auto Ins. Co. v. Dr. Jason Marucci a/a/o Ruth Botero, the Circuit Court sitting in its appellate capacity, relying on Amador, held the trial court did not commit error by refusing to give the Appellants requested jury instruction regarding refusal to appear at an EUO. Id.
Subsequent to the Amador decision, the Fourth District Court of Appeal decided AIU Insurance Company v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a] wherein they wrote:
We interpret section 627.736(4) to mean that if PIP benefits are payable, they are due within thirty days after notice. If the insurer has refused to pay the bill within thirty days and does not have reasonable proof to establish that it is not responsible, then the insurer is liable for ten percent interest when the bill is paid. Failing to obtain proof that it is not responsible for payment, however, does not deprive the insurer of its right to contest payment.
In Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So.2d 384 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2495a] the court described §627.736(4) as “merely making the insurer liable for interest if payment is not made within 30 days from notice,” and “the function of the statute is to define when interest begins to accrue on unpaid PIP benefits.”
Our Supreme Court held in United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a]:
Under the language of the Florida No-Fault Law, an insurer is subject to specific penalties once a payment becomes “overdue”; the penalties include ten percent interest and attorneys’ fees. The insurer, however, is not forever barred from contesting the claim.
Neither Rodriguez, Daidone, nor Fortune Ins. deal specifically with EUO’s, but they do interpret the meaning of 627.736(4)(b) and the thirty-day time limit contained therein. They all appear to implicitly conflict with or overrule Amador. See, Humanitary Health Care, Inc. a/a/o Juan Esquivel v. United Auto. Ins. Co. (11th. Jud. Cir. App. Ct. 2005) [12 Fla. L. Weekly Supp. 531b].2 The Plaintiff’s reading of the statute imposing a thirty-day time frame for an Insurer to notice an EUO, or waive its right to seek it, is consistent with Amador, but inconsistent with Rodriguez, Daidone, and Fortune Ins.
Amador dealt with the 1997 version of Section 627.736(4)(b) of Florida Statutes. The statute has been amended twenty times since. This case is controlled by the January 1, 2013 version of Section 627.736 of the Florida Statutes which contains several revisions. Specifically sub-section (6)(g) was added, and reads:
(g) An insured seeking benefits under ss. 627.730-627.7405, including an omnibus insured, must comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath. The scope of questioning during the examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this paragraph is a condition precedent to receiving benefits. An insurer that, as a general business practice as determined by the office, requests an examination under oath of an insured or an omnibus insured without a reasonable basis is subject to s. 626.9541
(emphasis added). The Defendant incorporated the above statutory language into the applicable insurance policy.3
Furthermore, Section 627.736(4)(b)(6) of Florida Statutes which came into effect in 2001, after Amador, provides:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.
When the plain language of 627.736(4)(b) is read together with 627.736(6)(g) a PIP insurer does not waive its right to seek an EUO if they fail to request it within thirty-days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
Accordingly, the Court persists in its Order granting Defendant’s Motion for Summary Judgment and Certifies the aforementioned questions to the District Court of Appeal.
__________________
1Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same
2“This court believes that Amador was implicitly overruled by United Automobile Ins., Co. v. Rodriguez, 808 So. 2d 82, (Fla. 2001) [26 Fla. L. Weekly S747a]. The Supreme Court held that if PIP benefits are not paid within 30 days and the insured does not have reasonable proof that it is not responsible for payment, the payment is overdue. However, “nothing in the statute provides that once a payment becomes overdue the insurer is forever barred from contesting the claim.” Id. at 87. The insurer is subject to specific penalties once a payment becomes overdue, including ten percent interest and attorney’s fees. “The insurer, however, is not forever barred from contesting the claimed.” Ibid. Although, we continue to believe that Amador is no longer good law, based on Rodriguez, we do not have the judicial power to decide this issue. In the absence of a clear expression from the Florida Supreme Court, the issue of whether a district court of appeal opinion is in conflict with a later Supreme Court opinion should be left to the district court of appeal. Wood v. Fraser, 677 So. 2d 15 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D1387c].”
3State Farm Form 9810A.
