24 Fla. L. Weekly Supp. 564b
Online Reference: FLWSUPP 2407MRODInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Child — Where PIP statutes and policy required ten-year-old child, as omnibus insured, to submit to EUO and child failed to appear for three scheduled EUOs, material breach of policy relieves insurer of any further obligation to child or medical provider/assignee — Mother’s fears that child is shy or introverted and that participation in EUO may be detrimental to child’s mental or emotional well-being are not summary judgment evidence establishing that child is not competent to testify at EUO
RAY MEDICAL CENTER INC. a/a/o Mayte Rodriguez as parent & guardian of [Child], Plaintiff, vs. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-014248 CC 05. October 18, 2016. Ivonne Cuesta, Judge. Counsel: Yulexy Solis, Andreu, Palma, Lavin & Solis, PLLC, and Carlos Cruanes, Law Offices of Carlos Cruanes, P.A., for Plaintiff. Benjamin Mordes, Law Offices of Benjamin Mordes, miami, for Defendant.
{Editor’s note: [Child] Substituted for Minor’s Name}
[Editor’s Note: Rehearing Denied November 7, 2016]
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 4, 2016 on Defendant’s Motion for Summary Judgment Based on Failure to Attend Examinations Under Oath and on Plaintiff’s Cross Motion for Summary Judgment. The Court has reviewed the pleadings, memoranda submitted by the parties, applicable law, has heard argument of counsel and is otherwise fully advised in the premises. The Court hereby GRANTS Summary Judgment in favor of the Defendant for the following reasons and DENIES Plaintiff’s Cross Motion for Summary Judgment.
FINDINGS OF FACT
This is an action for PIP benefits under a policy of insurance issued by the Defendant, Imperial Fire & Casualty Insurance Company (“Imperial”). On December 20, 2013, [Child] (a minor), who was ten years old at the time, was involved in a motor vehicle accident along with her mother Mayte Rodriguez. Ms. Rodriguez was the driver. As a result of the accident, both [Child] and her mother were injured. The child received medical services at the Plaintiff’s facilities. At the time of the accident, they were covered under a policy of insurance issued by Imperial, which provided Personal Injury Protection (“PIP”) benefits. Mayte Rodriguez, as parent and guardian of [Child], assigned the benefits applicable to her daughter to Plaintiff. During the claims investigation and premised upon the terms and conditions of the subject policy of insurance, as well as the investigation rights afforded by the No-Fault Statute, Section 627.736(7)(b), Imperial requested an Independent Medical Evaluation of both mother and child, which was duly attended. Additionally, Imperial thereafter requested a Video Taped Examination Under Oath (“EUO”) of both mother and child pursuant to Florida Statute, Section 627.736(6)(g). Ms. Rodriguez attended the EUO but did not allow the child to sit for the video-taped EUO. Ms. Rodriguez, through her attorney expressed concern over the impact of the EUO on her daughter. In support of the Plaintiff’s Cross-Motion for Summary Judgment, the Court considered Ms. Rodriguez’ affidavit. The affidavit states the following, in pertinent part:
My daughter, [Child] is a very shy, introverted child, and I was very concerned about the effect that this type of interrogation that I had just undergone, would have on her. The examination under oath that I underwent at Imperial was very long, intimidating and made me feel very uncomfortable, and not like an insured. I started to be deeply concerned of the harassing tactics used by Imperial that now started to implicate my minor child.”
As a way to allay her concerns yet comply with her contractual and statutory duty to submit to an Examination Under Oath, Ms. Rodriguez, through her attorney wrote a letter to the Defendant which in requesting that:
Before an examination under oath of [Child] is set, we request that a panel of physicians examine the 10 year old child and render an opinion as to whether [she] may submit to an Examination Under Oath and whether she has the ability to understand what an oath means and entails. We would like to know the physiological impact this may have on [Child]’s mental health and her future. We would like these physicians to study this after examining the patient, reviewing the place where the examination under oath would take place and the idea that [Child] will be surrounded by several people while her examination under oath (the court reporter, the interpreter, the person conducting the examination, her mom, and myself as the attorney), as this could also be problematic and impacting upon a 10 year old child like [Child].”
Not surprisingly, Imperial did not agree to the Plaintiff’s demands and conditions. The EUO was scheduled on three separate occasions, but the child never attended.
PLEADINGS
On July 28, 2014, Ray Medical Center, Inc. a/a/o Mayte Rodriguez as parent & guardian of [Child] (hereinafter “Plaintiff”) sued Imperial File & Casualty Insurance Company (hereinafter “Defendant”) for breach of a contract of personal injury protection benefits under Florida’s No-Fault Law by virtue of an assignment of benefits. In response, the Defendant filed an Answer and Affirmative Defenses alleging failure to comply with a condition precedent — not attending an Examination Under Oath, as required by the Florida No-Fault Statute. Thereafter, the Defendant filed its Motion for Summary Judgment. Twenty-one days before the hearing on this motion, the Plaintiff filed its Response and Cross-Motion for Summary Judgment.
In its Cross-Motion for Summary Judgment, the Plaintiff asks this Court to excuse [Child]’s non-attendance at the Examination Under Oath because she is a ten year old child. The Plaintiff argues that do to otherwise, would place the parents of any young child, in the untenable position of having to choose between subjecting their child to a sworn examination, or forfeiting benefits they are contractually entitle to. The Court finds that this argument is not a mere denial. It is in effect, a justification for the nonattendance at the EUO. It is an affirmative defense to Imperial’s affirmative defense. In this case, the Plaintiff was required to file a reply pursuant to Fla. R. Civ. P. 1.100(a). A reply is necessary when a “new matter is sought to be asserted to avoid [an] affirmative defense. Reno v. Adventist Health Systems, et al., 516 So. 2d 63 (Fla. 2d DCA 1987). See also, CJM Financing, Inc. v. Castillo Grand, LLC, 40 So. 3d 863 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1557a]. Irrespective of the Plaintiff’s failure to affirmatively plead a Reply, the Court also considers the merits of this action.ANALYSIS
This case is controlled by the version §627.736 of the Florida Statutes that went into effect on January 1, 2013. Fla. Stat. §627.736(6)(g) provided the following:
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.
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. Holly v. Auld, 450 So. 2d 217 (Fla. 1984); Capers v. State, 678 So. 2d 330, 332 (Fla. 1996) [21 Fla. L. Weekly S313a](the plain meaning of statutory language is the first consideration of statutory construction); J.R. v. Palmer, 175 So. 3d 710 (Fla. 2015) [40 Fla. L. Weekly S267a](courts of this state are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. . .”).
A plain and obvious reading of the statute authorizes an insurer like Defendant to require an insured seeking benefits under the No-Fault Statute to submit to Examination Under Oath, making it a statutory condition precedent to receiving benefits. The Court does not agree with Plaintiff’s position that the obligation to appear for Examination Under Oath is modified by the fact that an insurer could be subjected to Fla. Stat. §626.9541 by Office of Insurance Regulation for bad faith business practices.
The interpretation of an insurance policy is a matter of law for determination by the Court, and thus appropriate for summary judgment. See, e.g., Peacock Const. Co., Inc. v. Modern Air Conditioning, Inc., 353 So. 2d 840, 842 (Fla. 1977)(finding the interpretation of a contract to be a question of law). In determining summary judgment, the Court must review the terms and conditions of the insured’s policy. In construing an insurance policy, courts should read the policy as a whole, endeavoring to give every provision its full meaning and operative effect. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. Where contracts are clear and unambiguous; they should be construed as written and the court can give them no other meaning. Gulliver Sch., Inc. v. Snay, 137 So. 3d 1045, 1047 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a].
The policy at issue incorporated the statutory language regarding Examinations Under Oath. The policy specifically provided:
F. EXAMINATION UNDER OATH
“You” and any “insured” making a claim, must submit to an examination under oath separately and apart from others, by any person name by “us” when or as often as “we” may reasonably require. This examination shall be at a place designated by “us” and may be recorded in video and/or audio format at “our” option.
This provision includes providing a copy of any documents, forms, records or materials requested to be provided as part of the EUO request whether the request is made before, during or after the EUO.
Compliance with this section is a condition precedent to receiving benefits. If an “insured”, omnibus insured, or any other person or organization making a claim or seeking payment refuses to submit to or fails to appear at an EUO, “we” will not be liable for personal injury protection benefits.
Further, Section B, Paragraph 1 states:
B. Legal Action Against Us
No legal action may be brought against “us” until there has been full compliance with all the terms of this policy.
The policy requires that every insured making a claim must appear for Examination Under Oath. It is clear from the same policy provision that if an insured making a claim or seeking benefits does not appear for Examination Under Oath then Defendant would not be liable for future benefits.
The pleadings reflect and Plaintiff has otherwise stated that [Child] is an insured under the policy of insurance and has otherwise assigned her rights to the Plaintiff. The policy is unambiguous to the extent that this obligation is a condition precedent to receiving benefits. [Child] was requested to submit to Examination Under Oath on three separate occasions. It is uncontroverted that [Child] failed to appear for the properly noticed Examinations Under Oath and in doing so, failed to satisfy an express condition precedent to receiving benefits.
An insured’s refusal to submit to 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); 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.”).
Furthermore, Plaintiff as assignee stands in the shoes of [Child]. 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. An assignee is bound by policy provisions on assignment. See Great West Life Assur Co. v. Greene, 678 So. 2d 385 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1554a]. Moreover, an assignee cannot recover where there are no proceeds which could have been claimed by the assignor. See City National Bank of Coral Gables v. HNB Const. Corp., 183 So. 2d 704 (Fla. 3d DCA 1966)(the third district court of appeals affirmed a summary judgment concluding that an “assignee occupies the same position as an assignor; and that the Plaintiff bank could not move forward where there were no proceeds which “could have been claimed by the [assignor].”) An insured’s obligations pursuant to the terms and conditions of a policy are not extinguished by an assignment of proceeds. See Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 197 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2205a] (finding that the insured had an obligation to appear for an examination under oath even though she assigned her right to benefits under the policy). As such, Plaintiff is entitled to no greater rights than Claudia Gonzalez. Since Claudia Gonzalez is not entitled to personal injury protection benefits, Plaintiff is also not entitled to personal injury protection benefits.
COMPETENCY OF CHILDREN
In this case, the omnibus insured is a ten year old child. The Court is not aware of any opinions dealing with section 627.736(6)(g) and a child giving testimony. The Defendant maintains that unlike section 627.736(7)(b), where the Legislature expressly mentions and therefore creates an unreasonable refusal standard, or mitigating factions with respect to Independent Medical Examinations, section 627.736(6)(g) does not include such a provision. The Defendant argues that the Court should not therefore, interject a reasonableness analysis or allow the child’s age to be used as a mitigating factor for failing to attend the Examination Under Oath.
At common law, a child under the age of 14 was presumed incompetent to testify. Clinton v. State, 53 Fla. 98, 43 So. 312 (1907). However, this presumption has now been eliminated. Today, children are competent if they have sufficient minimal intelligence, regardless of age, to accurately perceive, remember, and relate, and when they have a minimal appreciation of the nature and obligation of an oath. Cross v. State, 89 Fla. 212, 103 So. 636 (1925). Even a young child is presumed competent until incompetency is otherwise affirmatively established by substantial evidence. Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986) (five year old sexual abuse victim of above average intelligence was competent to testify); Fernandez v. State, 328 So 2d. 508 (Fla. 3d DCA 1976) (six year old allowed to testify);
In opposition to Defendant’s Motion for Final Summary Judgment, Plaintiff filed the affidavit of Mayte Rodriguez (child’s mother) as discussed above. After careful review of Ms. Rodriguez’ affidavit, the Court finds that there is no “summary judgment evidence” that meets the requirements of Fla. R. Civ. P. 1.510(c) establishing that the child is not competent to testify or sit for Examination Under Oath. The mother’s fears that her child is shy and introverted, are legally insufficient for the Court to conclude that the child, as a witness, is incompetent to testify. Additionally, the Plaintiff’s letter to the Defendant establishes no affirmative evidence that sitting for an EUO would be detrimental to the child’s mental and emotional well-being. Counsel’s letter requests that a panel of physicians examine the child and render an opinion regarding the psychological impact the EUO would have on the child. This question does not constitute summary judgment evidence. Landers v. Milton, 370 So. 2d 368 (Fla. 1979) (Summary judgment appropriate upon failure of opposing party to present competent evidence revealing genuine issue of material fact. It is not enough for the opposing party merely to assert that an issue does exist. Respondents affidavits based largely on supposition, were clearly inadequate to create an issue of fact.)
CONCLUSION
The subject policy required [Child], as omnibus insured to appear for Examination Under Oath. Imperial requested the Examination Under Oath on three separate occasions and Ms. Gonzalez failed to attend any of the scheduled Examinations Under Oath. This is a material breach of the policy and relieves Imperial of any further obligation, either to the insured or her assignee, Ray Medical Center, Inc.
Accordingly, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment Based on Failure to Attend Examination Under Oath is hereby GRANTED and the Plaintiff’s Cross Motion for Summary Judgment is hereby DENIED.
