23 Fla. L. Weekly Supp. 762b

Online Reference: FLWSUPP 2307MACHInsurance — Personal injury protection — Coverage — Medical expenses — Examination under oath — Where PIP statute authorizes insurers to require submission to EUO as condition precedent to receipt of benefits, and PIP policy incorporated EUO provision of PIP statute by reference and specifically set forth EUO requirement, insured’s failure to attend EUOs on three separate occasions bars recovery of benefits by insured or medical provider/assignee

SAVIN MEDICAL GROUP, LLC A/A/O TERESITA MACHADO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-3408 CC 24 (01). December 4, 2015. Donald J. Cannava, Judge. Counsel: Peter G. Deprimo, Deprimo Fleites, P.A., Miami, for Plaintiff. Stephen M. Rosansky, Cole, Scott & Kissane, P.A., Miami, for Defendant.

ORDER ON DEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT BASED ON FAILURE TOATTEND EXAMINATION UNDER OATH

THIS MATTER, having come before the Court on November 3, 2015 for hearing on Defendant’s Motion for Final Summary Judgment Based on Failure to Attend Examination Under Oath and after reviewing the motions, the record, the applicable case law and after hearing argument of counsel for the parties makes the following findings of fact and conclusions of law:

FACTUAL BACKGROUND

On or about April 5, 2013, State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) renewed a policy of insurance (Form 9810A) issued to the named insureds, Miguel and Teresita Machado, which was in full force and effect from April 5, 2013 through October 5, 2013 and which provided Personal Injury Protection coverage subject to the terms and conditions of the policy of insurance itself, as well as all amendatory endorsements thereto; governing Statutes; Administrative Codes and applicable case law.

On April 20, 2013, during the effective period of the above-referenced policy of insurance, both Miguel and Teresita Machado were involved in a motor vehicle accident in which they both allegedly sustained injuries and sought treatment for same at Savin Medical Group, LLC. (hereinafter “Savin Medical”), the Plaintiff herein. While at Savin Medical, Teresita Machado, signed a document entitled “Assignment of Benefits” as a condition of receiving treatment at Plaintiff’s facility.

Based upon information obtained during the court of its claim investigation, and premised upon the terms and conditions of the subject policy of insurance, as well as the investigation rights afforded by §627.736(6)(g), Florida Statutes, the Defendant requested the claimant (Teresita Machado) to submit to a Recorded Statement. The Recorded Statement was originally scheduled to take place on July 16, 2013, however, on this date the claimant’s attorney, Katiana Fleites, advised that Miguel Machado was too sick to attend and would not be able attend until August 5, 2013. After multiple, unsuccessful attempts to obtain a recorded statement, the Defendant advised the claimant’s attorney that they would be proceeding with the scheduling of an Examination Under Oath pursuant to §627.736(6)(g), Florida Statutes as well as the terms and conditions of the policy of insurance under which the claim was submitted. State Farm attempted to coordinate mutually convenient dates with the claimant’s attorney on three (3) separate occasions: (1) July 23, 2013; (2) August 7, 2013 and (3) August 27, 2013 and on each occasion the Examination Under Oath was either cancelled the day of or was simply not attended by the claimant.

On or about November 14, 2014, Plaintiff, as the purported assignee of Teresita Machado, filed a Complaint for damages against State Farm, alleging breach of contract and seeking to recover Personal Injury Protection benefits for treatment and services rendered unto its assignor, Teresita Machado. In response, Defendant filed an Answer and Affirmative Defenses, asserting, among other defenses, Teresita Machado’s failure to attend three (3) Examinations Under Oath as required pursuant to both §627.736(6)(g), Florida Statutes (2013) and the policy of insurance (Form 9810A) under which the subject claim is being made. Defendant’s Motion for Final Summary Judgment Based on Failure to Attend Examination Under Oath followed thereafter and was called for hearing on November 3, 2015.

ANALYSIS AND DISCUSSION

This Court answers the following three (3) questions in its analysis of the issues presented by the Defendant’s Motion for Summary Judgment: (1) Did the Statute governing the subject claim authorize insurance carriers such as State Farm to require it’s insured to submit to an Examination Under Oath; (2) If so, did the policy of insurance under which the subject claim is being made properly incorporate the Statute and adequately put the insured on notice of its obligation to comply and (3) If so, what are the consequences of failing to comply with both a Statutory and Policy Condition Precedent.

I. Does the Statute Governing the Subject Claim Authorize Insurance Carriers such as State Farm to Require It’s Insured to Submit to an Examination Under Oath?

Upon review of the facts and evidence this Court answers the foregoing question in the affirmative. As set forth above, State Farm renewed a policy of insurance (Form 9810A) issued to the named insureds, Miguel and Teresita Machado, on April 5, 2013. Said policy was in full force and effect from April 5, 2013 through October 5, 2013. On April 20, 2013, during the effective period of the above-referenced policy of insurance, both Miguel and Teresita Machado were involved in a motor vehicle accident in which they both allegedly sustained injuries and sought treatment for same at Savin Medical. The services at issue (dates of service 04/25/13-05/14/13) occurred in 2013 and the alleged breaches of the statutory and policy conditions precedent (July 23, 2013; August 7, 2013 and August 27, 2013) all occurred in 2013. Accordingly, it is the 2013 version of the Florida Motor Vehicle No-Fault Law (§§627.730-627.7405, Florida Statutes) which is applicable to the facts of this case, and in particular, §627.736(6)(g), which states as follows:

§627.736(6)(g), Florida Statutes expressly states that, “[a]n 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. (Emphasis Added)

This Court finds the statutory language above to be clear and unambiguous. When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. See State of Florida v. Warren, 796 So.2d 489 (Fla. 2001) [26 Fla. L. Weekly S434b].

A plain reading of the clear and unambiguous language of the statute authorizes insurance carriers such as State Farm to require an insured seeking benefits under the No-Fault Statute, such as Teresita Machado, to submit to an Examination Under Oath, making it a statutory condition precedent to receiving benefits.

II. Did the Policy of Insurance Under Which the Subject Claim is Being Made Properly Incorporate the Statute and Adequately Put the Insured on Notice of Its Obligation to Comply?

This Court answers the foregoing question in the affirmative relying in part upon §627.7407(2), Florida Statutes, which states: “[a]ny personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this Act.” (Emphasis Added). It is uncontested that the Machado’s policy was in effect on or after January 1, 2008. Further, the Examination Under Oath provision [§627.736(6)(g)] is located squarely within the confines of the Florida Motor Vehicle No-Fault Law. See § 627.730, Fla. Stat. (2013) (“Sections 627.730-627.7405 may be cited and known as the ‘Florida Motor Vehicle No-Fault Law.’ ”). Thus, the Examination Under Oath provision was statutorily incorporated into the insured’s policy. Additionally, in Grant v. State Farm Fire & Casualty Co., 638 So.2d 936, 938 (Fla.1994), the Florida Supreme Court specifically held that “where a contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become part of the contract.”

Additionally, §627.736(6)(g), Florida Statutes was not only incorporated by operation of law into the insured’s policy but the subject policy also incorporates the requirements set-forth by the operative statutory provision therein, again placing the insured on notice of same. The language of the subject policy states as follows:

a. No-Fault Coverage, each insured making claim or seeking payment, must, at our option:

(1) submit to an examination under oath;

(2) provide a statement under oath; or

(3) do both (1) and (2) above, as often as wereasonably require. Such insured must answer questions under oath, asked by anyone we name, and sign copies of the answers. We may require each insuredanswering questions under oath to answer the questions with only that insured’s legal representative, ourrepresentatives, any person or person’s designated by us to record the questions and answer and no other person present.

The scope of the 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 Questioning Under Oath is a condition precedent to receiving benefits.

– See Policy 9810A (Page 38 ¶ 5 under Insured’s Duties — Questioning Under Oath)

The interpretation of an insurance contract is a question of law to be determined by the Court. See Thomas v. Fusilier, 966 So. 2d 1001 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2457a]; Graber v. Clarendon Nat’l Ins. Co., 819 So. 2d 840, 842 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1158a]. In construing an insurance policy, courts should read the policy as a whole, endeavoring to give every provision its full meaning and operative effect.¹ Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a].

In arriving at a reasonable interpretation, the “terms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical, and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic construction.” Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002) [27 Fla. L. Weekly S492a]; General Star Indem. Co. v. West Florida Village Inn, Inc., 874 So. 2d 26, 30 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D348a] (“Where no ambiguity exists, the policy shall be construed according to the plain language of the policy as bargained for by the parties.”). The terms of the policy at issue in this action are unambiguous and must be applied as written.

The subject policy language reveals proper incorporation of the statute requiring each insured making a claim or seeking payment to, at State Farm’s option, submit to an Examination Under Oath as often as reasonably required and compliance with this requirement is a condition precedent to receiving benefits. As such, Mr. and Mrs. Machado were adequately put on notice of and were otherwise bound by both statute and contract to submit to an Examination Under Oath, yet failed to do so.

III. What Are the Consequences of Failing to Comply With Both a Statutory and Policy Condition Precedent?

The consequence of failing to satisfy either a Statutory or Policy condition precedent is the same in this instance. Failure to submit to an Examination Under Oath is a complete bar to receipt of benefits. As set forth above, 2013 F.S.A. §626.736(6)(g), Florida Statutes applies to this case and clearly and unambiguously states that, “Compliance with this paragraph is a condition precedent to receiving benefits.” Likewise, State Farm’s policy clearly and unambiguously provides that “Compliance with Questioning Under Oath is a condition precedent to receiving benefits.” (Emphasis Added)

Teresita Machado was requested to submit to an Examination Under Oath and received notice of same on three (3) separate occasions. It is uncontroverted that Teresita Machado failed to appear for the Examinations Under Oath as noticed and in doing so failed to satisfy a statutory condition precedent to receipt of benefits. Accordingly, State Farm was relieved of any further obligation, either to the insured or his assignee, Savin Medical Group, LLC.

In opposition to Defendant’s Motion for Final Summary Judgment Plaintiff filed the Affidavit of Diana Fernandez, the Bodily Injury Paralegal for DePrimo Fleitas, P.A. in which Ms. Fernandez attempts to explain the circumstances under which the recorded statements and each of the three (3) Examinations Under Oath were missed as mitigating factors to be considered by the Court.

In applying principles of statutory construction, courts must “begin with the ‘actual language used in the statute.’ ” See Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 (Fla.2013) [38 Fla. L. Weekly S325a] (quoting Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) [31 Fla. L. Weekly S34a]) and Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993)(“The cardinal rule of statutory construction is that the courts will give a statute its plain and ordinary meaning.”)

Section 627.736(6)(g), Florida Statutes does not include any mitigating factors for the Court’s consideration. For comparison purposes, the next section of the No-Fault Statute, §627.736(7)(b), states in pertinent part as follows:

If requested by the person examined, a party causing an examination to be made shall deliver to him or her a copy of every written report concerning the examination rendered by an examining physician, at least one of which reports must set out the examining physician’s findings and conclusions in detail. After such request and delivery, the party causing the examination to be made is entitled, upon request, to receive from the person examined every written report available to him or her or his or her representative concerning any examination, previously or thereafter made, of the same mental or physical condition. By requesting and obtaining a report of the examination so ordered, or by taking the deposition of the examiner, the person examined waives any privilege he or she may have, in relation to the claim for benefits, regarding the testimony of every other person who has examined, or may thereafter examine, him or her in respect to the same mental or physical condition. If a person unreasonably refuses to submit to or fails to appear at an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits. An insured’s refusal to submit to or failure to appear at two examinations raises a rebuttable presumption that the insured’s refusal or failure was unreasonable. (Emphasis Added)

“It is a familiar interpretive principle that when a legislature uses particular language in one section of a statute and omits it from another section, courts must presume the omission was intentional.” See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D159b]; See Also Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) [21 Fla. L. Weekly S41b] (“Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.”) In §627.736(7)(b), Florida Statutes, the Legislature expressly mentions and therefore creates an unreasonable refusal standard, or mitigating factors, with respect to Independent Medical Examinations. The Legislature did not include such a provision or create such a standard in §627.736(6)(g), Florida Statutes. Therefore, Florida Statutes §627.736(6)(g) permits insurance carriers such as State Farm to require an insured seeking benefits under the No-Fault Statute, such as Teresita Machado, to submit to an Examination Under Oath.

IV. Additional Analysis

In addition to the policy language quoted above (Policy 9810A at Page 38 ¶ 5 under Insured’s Duties — Questioning Under Oath) this Court finds that no action may be brought against State Farm under the subject policy of insurance (Policy 9810A). Specifically, the subject policy (Page 46 at ¶ 17b,) in the section entitled “Legal Action Against Us”, states, “[u]nder the terms of the policy, a lawsuit against the insurer is precluded until the insured complies with all portions of the policy.” (Emphasis Added) This Court finds that the insurance policy in this case bars suit against State Farm until the requirement of attendance at an Examination Under Oath, are met. See Wright v. Life Insurance Company of Georgia, 762 So.2d 992, 993 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b] (“A no action clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies with the relevant provisions.”)

Generally, insurance policy provisions requiring an insured to submit to Examinations Under Oath have been recognized by Courts as valid and binding provisions. See Claflin v. Commonwealth Ins. Co., 110 U.S. 81, 97 (1884); Pervis v. State Farm Fire & Casualty, 901 F. 2d 944 (11th Circuit 1990); Southern Home Insurance Company v. Putnal, 49 So. 922 (Fla. 1909); Diaz v. Bankers, 702 So. 2d 1324 (Fla. 3rd DCA 1997); American Reliance Insurance Company v. Riggins, 604 So. 2d 535 (Fla. 3rd DCA 1992); Marlin Diagnostics (a/a/o Fidencia Correa) v. State Farm Mut. Auto. Ins. Co., Case No. 02-25036 CA 30 (11th Judicial Circuit in and for Miami-Dade County, J. Levinson)(for the proposition that the courts have consistently upheld insurance contracts containing provisions which require the insured to submit to Examinations Under Oath.). “A provision in an insurance policy requiring the insured to submit to examination under oath must be complied with, and, if breached, the insurer will be deprived of a valuable right for which it had contracted.” Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300, 306 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a] n.9 citing 5A J. Appleman & J. Appleman, Insurance Law & Practice §3549, at 549-50 (1970); American Reliance Ins. Co. v. Riggins, 604 So. 2d 535, 535-36 (Fla. 3d DCA 1992) (insured is absolutely required to submit to an examination under oath when requested by an insurer).

An insured’s refusal to submit to an Examination Under Oath is considered a material breach of an insured’s contract that creates a complete defense to coverage under the policy. See Stringer v. Fireman’s Fund Insurance Company, 622 So. 2d 145 (Fla. 3d DCA 1993); Fassi v. American Fire and Casualty Company, 700 So. 2d 51, 52-53 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2130a] and Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300, 303-304 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a] (“We conclude that the policy provisions requiring appellants to submit to examinations under oath are conditions precedent to suit rather than cooperation clauses.”).

State Farm’s policy of insurance clearly and unambiguously creates a condition precedent to the receipt of benefits without a showing of substantial prejudice by State Farm. In State Farm Mutual Automobile Insurance Company v. Robin Curran, 135 So.3d 1071 (Fla. 2014) [39 Fla. L. Weekly S122a] which arose as a result of a June 2006 traffic accident involving Robin Curran, insured by State Farm Automobile Insurance Company (“State Farm”), the underinsured motorist who rear-ended Curran’s car and Curran’s obligation to attend a compulsory medical examination (CME) was found by the Court to be a condition subsequent to coverage. The 2013 F.S.A §627.736(6)(g) and State Farm’s policy mandate attendance at an EUO as a condition precedent. As such, any possible requirement of a showing of prejudice by State Farm due to an alleged breach of a condition subsequent, is not an applicable element of the Court’s analysis of a condition precedent in this matter.

Third parties seeking benefits under insurance policies, such as healthcare providers, in this instance Savin Medical Group, Inc., must ensure compliance by the insured to the policy’s terms and conditions, or lose their rights under the policy. See Universal Medical Center of South Florida v. Fortune Insurance Company, 761 So. 2d 386, 387 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1068a]; Orion Insurance Company v. Magnetic Imaging Systems I, 696 So. 2d 475, 478 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1595c] and Raffa Associates, Inc. Boca Raton Resort and Club, 616 So. 2d 1096, 1097 (Fla. 4th DCA 1993).

Teresita Machado’s failure to comply with her statutory and policy condition precedent extinguished both her and her “assignee’s” rights to recovery. See Fla East Coast Railway Co. v. Eno, 128 So. 622 (Fla. 1930). “The assignee occupies the same position as the assignor with respect to the moneys, having the same rights, and being subject to the same equities, conditions and defenses.” Id. at 626. See also Neuro-Imaging Associates, P.A. v. Nationwide Ins. Co. of Fla., the Court recognizing that it is black letter law that a person cannot assign a greater right than he or she has under a contract. 10 Fla. L. Weekly Supp. 738a (15th Judicial Circuit 2002), affirmed 15th Judicial Circuit (Appellate), July 2003; Union Indemnity Co. v. New Smyrna, 100 Fla. 980, 130 So. 453 (Fla. 1930), the Court held that the assignee of a contract could acquire no greater right by reason of an assignment than that which the contractor himself might assert; Cole v. Angora Enterprises, Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981). See also Chrysler Credit Corp. v. United Svcs. Auto. Assoc., 625 So. 2d 69 (Fla. 1st DCA 1993) (where the assignee took the assignment subject to the specific language in the policy); Resolution Trust Corp. v. Broad & Cassel, P.A., 889 F. Supp. 475 (M.D. Fla. 1995) (holding a valid assignment only transfers to the assignee whatever rights the assignor possessed); Great West Life Assur. Co. v. Greene, 678 So. 2d 385 (Fla. 3d DCA 1966)(An assignee is bound by policy provisions on assignment.)

Florida courts are in agreement that “‘. . .when an insured assigns his benefits to a healthcare provider, the obligation to attend an EUO remains with the insured, and the insurer has a good defense to the providers claim if the insured refuses to attend an EUO.’ ” See Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2828b] quoting Advanced Diagnostic Testing, Inc., v. State Farm Ins. Co., 11 Fla. L. Weekly Supp. 964c (Fla 11th Cir. Ct. 2004).

The subject State Farm policy required the insured to appear for Examinations Under Oath. State Farm requested the Examinations Under Oath and the insured failed to attend any of the scheduled Examinations Under Oath. This material breach of the policy relieves State Farm of any further obligation, either to the insured or her assignee, Savin Medical Group, LLC.

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment Based on Failure to Attend Examination Under Oath is hereby GRANTED.

__________________

¹By statute, insurance contracts are to be construed according to the “entirety of [their] terms” and as “amplified, extended, or modified” by any endorsement. See Fla. Stat. § 627.419(1); Nationwide Mut. Fire Ins. Co. v. Olah, 662 So. 2d 980, 982 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2392b].