24 Fla. L. Weekly Supp. 844a
Online Reference: FLWSUPP 2410CORDInsurance — Personal injury protection — Coverage — Medical expenses — Condition precedent — Examination under oath — Where both PIP statute and policy provide that EUO is condition precedent to receipt of benefits, neither insured who failed to appear at two scheduled EUOs nor medical provider/assignee is entitled to benefits — Insurer that scheduled EUOs to occur more than thirty days after receipt of provider’s bills did not thereby waive right to notice EUO — Further, where PIP policy contains “no action clause” that states that lawsuit against insurer is precluded until insured complies with all portions of policy, policy bars suit until EUO requirement is met
CARIBBEAN REHABILITATION CENTER, INC. a/a/o Reynier Cordoves, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-016327 CC 25 (02). December 20, 2016. Gina Beovides, Judge. Counsel: Todd Landau, Todd Landau, P.A., Hallandale Beach, for Plaintiff. Susette Gruebele, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
FINAL JUDGMENT and PCA at FLWSUPP 2612COR1 and FLWSUPP 2612COR3
ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND PLAINTIFF’SCROSS MOTION FOR SUMMARY JUDGMENTRELATING TO EXAMINATION UNDER OATH
This cause came before the court on September 14, 2016, on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross Motion Summary Judgment. This Court, having reviewed the Motion, the entire Court file and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised of the premises, the Court finds as follows:
ANALYSIS AND FINDINGS OF FACT
Caribbean Rehabilitation Center Inc. (hereinafter Plaintiff) as an assignee of Reynier Cordoves (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 July 17, 2014 and received treatment from the Plaintiff from July 18, 2014 through September 5, 2014. The Defendant received the Plaintiff’s bill on August 28, 2014 and September 15, 2014, respectively.
Defendant scheduled Examination Under Oath (hereinafter “EUO”) of the Assignor to occur on October 20, 2014 and on October 23, 2014. Additionally, it is undisputed that the Assignor did not appear for either of the examinations. It is also undisputed that the EUO was not scheduled to take place within 30 days from receipt of the billing packages. Furthermore, the Court finds, based on the evidence presented, that there is no genuine issue of material fact as to whether the Defendant received proper notice for both EUOs.
“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 contends that 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 did not appear at the aforementioned scheduled EUOs. Plaintiff contends that Defendant had already breached the contract by this time by failing to pay the bills the Defendant had received over thirty (30) days before the EUO was ever scheduled.
Plaintiff relies on Amador v. United Auto 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 right to toll the thirty day time limit provided for in sub-section (4)(b) and that failure to complete that investigation within thirty days and not pay the bills is a breach of the contract. With the exception of the applicable statute, the facts in Amador are nearly identical to the case at bar.
This case is controlled by the version §627.736 of the Florida Statutes that went into effect on January 1, 2014. Since the ruling in Amador in 1999, the statute has undergone several significant revisions. Relevant to this case, sub-section (4)(b) has also changed in that it is now titled “Payment of Benefits” instead of “Benefits; When Due.” Additionally, sub-section (6)(g) was specifically 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. More specifically, the policy reads:
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 reads: “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.”
Florida law is clear that the courts will give a statute its plain and ordinary, meaning and that any inquiry into the legislative history may only begin if the court find the statue is ambiguous. Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993) (emphasis added). When the language of a statue is clear and unambiguous and conveys a clear and definite meaning the statute must be given its plain and obvious meaning. (emphasis added). See also State v. Warren, 796 So. 2d 489 (Fla. 2001) [26 Fla. L. Weekly S434b]. Florida Statute § 627.736 subsection (6)(g) is clear and unambiguous in that it makes sitting for an Examination Under Oath a condition precedent to receiving benefits, as such, this Court finds there is no reason to look outside the statute for interpretation.
Additionally, following the rules of statutory interpretation, under the reenactment canon, if the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in the meaning. When a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment. Arnold v. Shumpert, 217 So. 2d 116 (Fla 1968) citing to Sharer v. Hotel Corp. of America, 144 So. 2d 813, 817 (Fla. 1962) and Webb v. Hill, 75 So. 2d 596, 603 (Fla. 1954). Post Amador, the legislature amended the statute to specifically include that examinations under oath are a condition precedent to benefits as well as revise subsection (4)(b). Therefore, Amador, while possibly still good law, does not apply to the case at issue as it concerns a different version of Florida Statute § 627.736. The Court cannot rely on case law that predates an amendment to the statute as that would defeat any intent the legislature had to change the law as they see fit. USI Insurance of Florida v. Pettieno, 987 So. 2d 763 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1788a].
Furthermore, the Florida Supreme Court, interpreting (4)(b) in United Automobile Ins. Co., v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a], held that the insurer’s failure to pay PIP benefits within thirty days after receiving written notice of a covered loss does not forever bar it from contesting a claim. Additionally, the Court found that statutory sanctions, including interest and attorney’s fees, are the only penalties approved by the legislature once payment becomes overdue. Id. at 87. (emphasis added). Therefore, this Court cannot read in a thirty (30) day requirement, as requested by Plaintiff, into 627.736(6)(g), and find that that the Defendant has waived its right to notice an Examination Under Oath and breached the contract.
Lastly, in addition to the policy language quoted above, Defendant’s policy included a no action clause which stated “[u]nder the terms of the policy, a lawsuit against the insurer is precluded until the insured complies with all portions of the policy.” This Court finds that the insurance policy in this case bars suit against the Defendant until the requirement of attendance at an Examination Under Oath is met. See Wright v. Life Insurance Company of Georgia, 762 So.2d 992, 993 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b] (finding that 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). In the matter at hand, Defendant requested and scheduled the EUOs prior to suit being filed, therefore, under the terms of the policy, the Plaintiff was required to fulfill the condition precedent before filing suit. Third parties seeking benefits under insurance policies 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]; Savin Medical Group, LLC a/a/o Teresita Machado v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 762b (Miami-Dade Cty. Ct. December 4, 2015)(Hon. Cannava).
In summary, Fla. Stat. 627.736 (2014) makes an Examination Under Oath 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 and attorney’s fees if they are required to pay. Additionally, as noted in their Answer and Affirmative Defenses, Defendant had reason to believe that they were not responsible for payment as Plaintiff violated Florida Statutes § 627.736(5)(b)(1)(c) and coverage was still disputed. Bills cannot be overdue if they are not due in the first place. Defendant attempted to schedule, and properly noticed an EUO of the Assignor two times. As the Assignor failed to appear both 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). Finally, the policy at issue also states that failure to submit for an Examination Under Oath is an exclusion to coverage. As such, this Court finds that benefits cannot be overdue when a condition precedent to receiving benefits or obtaining coverage was not met.
Accordingly, the Defendant’s Motion for Summary Judgment is hereby GRANTED and Plaintiff’s Motion for Summary Judgment is hereby DENIED.
