24 Fla. L. Weekly Supp. 152a
Online Reference: FLWSUPP 2402CHERInsurance — Personal injury protection — Coverage — Medical expenses — Examination under oath — Failure to attend — Where insurer did not request EUO until more than thirty days after receipt of medical provider’s bills and did not send letter to provider required to extend time for investigation under section 627.736(4)(i), insured’s failure to attend EUO did not breach PIP policy
CENTRAL FLORIDA CHIROPRACTIC CARE (a/a/o/ Cherry, David), Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-CC-9396-O. April 22, 2016. Honorable Steve Jewett, Judge. Counsel: Don Mathews, Don Mathews & Associates, P.A., Fort Myers, for Plaintiff. Alexis Leigh Lombard, Law Offices of Stephen F. Lanosa, Orlando, for Defendant.
AFFIRMED. FLWSUPP 2608CHER
AFFIRMED (May 11, 2017)
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT ANDDENYING DEFENDANT’S CROSS-MOTIONFOR FINAL SUMMARY JUDGMENT
This cause came before the Court on March 22nd, 2016 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Cross-Motion for Final Summary Judgment. After reviewing the pleadings, affidavits, the evidence, the record, and after hearing argument of counsel for the parties, the court hereby Grants Summary Judgment in favor of the Plaintiff and Denies Summary Judgment for the Defendant.
ANALYSIS AND FINDINGS OF FACT
Central Florida Chiropractic (hereinafter the Plaintiff), as an assignee of David Cherry, sued Geico Indemnity Company (hereinafter the Defendant) for breach of contract of personal injury protection benefits under Florida’s No Fault Law. The assignor was allegedly involved in an automobile accident on July 30th, 2014 and received treatment from the Plaintiff ranging from dates August 8th, 2014 through October 28th, 2014.
Geico Indemnity Company acknowledges that there was a personal injury protection policy (hereinafter pip) in regards to the applicable dates. Furthermore, Defendant and Plaintiff have agreed that should the bills be found due and owing that they would be paid at 200% Medicare. Thus, the billing amount in dispute is all bills received by September 23rd, 2014, which total $5,271.00. Plaintiff has agreed that $770.00 of that amount is not owed, thus the amount at issue would be $4,501.00. That remaining amount, if found to be owed, would be payable at 200% Medicare rate according to the PIP Statute Section 627.736 (2013) and then at 80% of that plus applicable interest, which totals $3,315.41. Defendant concedes they have not paid any of the bills at issue to date and both parties agree that the above amount would be the owed amount if this Court finds in favor of the Plaintiff.
Plaintiff and Defendant have presented to this Court that the main issue to be determined is the question surrounding a requested Examination Under Oath (hereinafter EUO). The Court has reviewed affidavits presented by the Plaintiff surrounding the reasonableness, necessity and relatedness of the treatment. Defendant’s counsel concedes that there are no contrary affidavits at this time. Thus, the only evidence before this Court is that the services were necessary and related, and if Plaintiff did not breach due to not appearing at an EUO, would be payable as described above.
EUOs were scheduled of the assignor to occur on November 6th, 2014 and January 14, 2015. Both Plaintiff and Defendant concede that the assignor did not appear for these scheduled examinations. 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.
This case is controlled by existing case law and version Section 627.736 of the Florida Statutes that went into effect on January 1, 2014. Upon review of the motions and argument of counsel, this Court has determined the applicable Sections for consideration are (4)(b), (4)(i) and (6)(g). Under Section 627.736(4)(b) of the Florida Statutes an insured’s claim is “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.” Under Section 627.736(4)(i) of the Florida Statutes the Legislature provides an additional 60 days to complete an investigation if the claimant is noticed in writing of a reasonable belief of fraud before the claim is overdue. Under Section 627.736(6)(g) of the Florida Statutes an insured seeking No Fault benefits must appear for an examination under oath as a condition precedent to receiving benefits.
The factual evidence presented to this Court is clear that the first examination under oath was not requested until after 30 days had passed for the bills at issue in this matter. Plaintiff relies on, among other cases, 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 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. The facts within Amador are directly on point with the facts in the case at issue. Id. Defendant argues that the change in the 2013 Statute in some way alters the conclusion of Amador.
The 2013 version of the Florida Statutes made clear that an EUO was a condition precedent to benefits, but cannot be read in a vacuum. In fact, the language of requirement of benefits to be paid within thirty days remained. Furthermore, the legislature carved out a way to extend the time of investigation under Section 627.736(4)(i) for an additional sixty days, but made sure to indicate that the insurer must deny or pay the claim at the end of that additional sixty days. In the instant case, this Section could not be used by the insurer, as no evidence was presented that a letter ever was sent to the assignor to allow the extension of the time for investigation. Thus, Defendant’s argument that they may use an investigative tool at any time beyond the thirty days is inconsistent with a specifically added section that still maintains a time of cut off the time for the insurer to investigate. Defendant’s argument would have one believe that the insurer can ask for an EUO years later and, unless the Plaintiff attends, the insurer is not required to make payment until that time. This is not a logical interpretation of the Section 627.736 of the Florida Statutes.
In Amador the Court appears to consider the EUO as a condition precedent, however, stresses that the “burden is clearly upon the insurer to authenticate the claim within the statutory time period.” Id. Nothing within the statute appears to allow for that statutory time period to be arbitrarily increased by the insurer for an indefinite amount of time. The clearing up of the usage of an investigative tool as a condition precedent does not change the plain meaning of the Florida PIP Statute, which is swift and virtual automatic payment. Amador goes on to clearly state that “. . . because of the special nature of, and protection afforded by, the PIP statute, upon expiration of the 30-day period, the insurer is itself in breach of the contract. . .”. Id. Plaintiff further presents January v. State Farm Mutual Insurance Co., 838 So.2d 604 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D484a] in support of their position, which does track Amador and specifically found that an insurer is not automatically obligated to pay a claim within the thirty-day statutory time period and may contest the claim, but accepts the risk if they do not prevail that the insurer will be liable for interest and attorney’s fees. January at 607.
In summary, the statute clarifies that an EUO is a condition precedent to receiving benefits, however, it does not provide anywhere within the statute that an insurer shall have an indefinite amount of time to use the investigative tool of an EUO in their investigation to determine if benefits are due and owing. In fact, the statute clarifies the time period for an investigation and offers additional time to an insurer if they comply with the written notification portion of the statute. As the Plaintiff has proven the necessary elements to establish their case and Defendant did not timely schedule an EUO, the Defendant must pay the requested benefits, applicable interest and reasonable attorney’s fees and costs.
Accordingly, it is hereby ORDERED AND ADJUDGED, that Defendant’s Motion for Final Summary Judgment is Denied and Plaintiff’s Motion for Final Summary Judgment is Granted in the amount of $3,315.41, which is inclusive of benefits and interest at the time of the entry of this judgment, post-judgment interest at 4.75% and this Court reserves for consideration of the amount of reasonable attorney’s fees and costs.
