25 Fla. L. Weekly Supp. 1039a
Online Reference: FLWSUPP 2512INTEInsurance — Personal injury protection — Coverage — Conditions 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 irrespective of whether EUOs were set to occur within thirty days of insurer’s receipt of bills
GONZALEZ MEDICAL CENTER a/a/o Madelayne Interian, Plaintiff, v. INFINITY AUTO INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 16-021117 CC 05. February 5, 2018. Maria D. Ortiz, Judge. Tahya Fuemayor, The Law Offices of Gonzalez and Associates, Miami, for Plaintiff. Cristina Suarez-Arias, Law Offices of Deborah N. Perez and Associates, Doral, for Defendant.
ORDER ON DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 4, 2017, on Defendant’s Motion for Final Summary Judgment based on Plaintiff’s Failure to Attend Examinations under Oath and after reviewing the Motion and Response, the entire Court file, the applicable case law and considering the argument of counsel and having been sufficiently advised of the premises, the Court finds as follows:
FACTUAL BACKGROUND
Gonzalez Medical Center (hereinafter “Plaintiff”) as assignee of Madelayne Interian (hereinafter “Assignor”) filed a lawsuit against Infinity Auto Insurance Company (hereinafter “Defendant”) for breach of a contract of personal injury protection benefits under Florida’s No-Fault Statute. The Assignor was allegedly involved in a motor vehicle accident on or about May 20, 2016, and received treatment from the Plaintiff provider from May 26, 2016, through July 13, 2016. The Defendant received bills from the Plaintiff on June 28, 2016; July 15, 2016; July 22, 2016, and August 17, 2016.
It is undisputed that the Defendant scheduled two Examination Under Oath (hereinafter “EUO”) of the Assignor for August 1, 2016, and August 19, 2016, and that the Assignor did not appear for either of the EUOs. It is also undisputed that neither EUO was scheduled to take place within thirty days of the receipt of the first package of bills. The Court finds that, based on the evidence presented and affidavits filed, there is no genuine issue of material fact as to whether the Assignor received proper notice for both EUOs. The sole question is whether Defendant is entitled to summary judgment as a matter of law.ANALYSIS AND DISCUSSION
The Defendant asserts that the Plaintiff is not entitled to benefits because the Assignor failed to satisfy a condition precedent when she did not appear at the properly-noticed EUOs. Defendant relies on the language contained in Florida Statute 627.736(6)(g) and the policy which states that the insured seeking benefits must submit, when requested, to an Examination Under Oath prior to receiving said benefits. Since the Assignor is not entitled to benefits because she failed to comply with a condition precedent to recovery under the PIP statute, then the Assignee, standing in the shoes of the Assignor, is also barred from recovering any benefits from the Defendant. “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.” See Fla East Coast Railway Co. v. Eno, 128 So. 622, 626 (Fla. 1930).
Plaintiff argues that by scheduling the EUO past the 30-day investigative period provided by §(4)(b) in the PIP statute, the Defendant had already breached the PIP statute, thus discharging any obligation the Assignor had to perform the terms of the contract. Relying on Amador v. United Auto Inc. Co., 748 So. 2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a], the Plaintiff reiterates that an insurer cannot use its investigative rights to toll the thirty day time limit provided for in sub-section (4)(b) and that, therefore, the Defendant’s failure to complete their investigation within thirty days and not pay the bills is a breach of the contract.
While the Defendant concedes that the facts in Amador are similar to those present in this case, Defendant contends that Florida Statute § 627.736 has since been revised specifically as to examinations under oath, and therefore render the Court’s ruling in Amador inapplicable to the facts of this case. The most relevant changes since Amador for the purposes of this analysis are the revisions to sub-section (4) (b) and sub-section (6)(g). Specifically, (6)(g) states:
(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’s applicable insurance policy incorporates the statutory language on page 4 of 4 wherein its states:
Examination Under Oath
As a condition precedent to receiving personal injury protection benefits under the policy, any insured making a claim for personal injury protection benefits must submit as often as we require to examinations under oath outside the presence of anyone other than that person’s attorney and, if a minor, the legal guardian of the minor may also be present. The scope of the questioning during the examination is limited to relevant information or information that could reasonably be expected to lead to relevant information.
The policy in question contains a Florida Amendatory Endorsement 10951AE802 Personal Injury Protection Coverage Conditions section that further establishes:
An insured making a claim for personal injury protection benefits must submit as often as we reasonably request and at our expense to mental and physical examinations by doctors that we select. We will pay for these examinations. If requested, we will provide a copy of the medical report to the person examined. If the insured fails to appear at an examination, we will not be liable for subsequent ‘personal injury protection benefits. An insureds refusal to submit to or failure to appear at two examinations raises a rebuttable presumption that the insureds refusal or failure was unreasonable.
Notably absent from the post-Amador statute, Fla. Stat. § 627.736(6)(g), is any time limit that bars the Defendant from pursuing its investigation of a claim after thirty days. Plaintiff’s interpretation would require this Court to read a time limit into the statute which does not exist. 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 finds that the statute is ambiguous. Caribbean Rehabilitation Center, Inc. a/a/o Reynier Cordoves v. State Farm Mutual Automobile Insurance Co., 24 Fla. L. Weekly Supp. 844a (Miami-Dade Cty. Ct. December 20, 2016) (Hon. Beovides); Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993). When the language of a statute is clear and unambiguous and conveys a clear and definite meaning the statute must be given its plain and obvious meaning. (Emphasis added). Id.
Furthermore, in United Automobile Ins. Co., v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a], the Florida Supreme Court addressed the issue of an insurer’s failure to pay PIP benefits within thirty days and found that it does not forever bar the insurer from contesting a claim. Instead, the Court in Rodriguez reiterated that the statute itself provides for sanctions for failure to pay under sub-section (4) (d) and those sanctions are interest and attorney’s fees when payment becomes overdue. Id.
In conclusion, Fla. Stat. §627.736 (2014) and the Defendant’s insurance policy provisions make a claimant’s appearance at the EUO a condition precedent to PIP benefits. The Defendant did not pay PIP benefits within 30 days of receipt of notice of a covered loss, and would be subject to paying interest and penalties if the payments became due. However, Defendant was not liable for payments, since coverage had not been established for the Assignor. Bills cannot be overdue if they are not due in the first place. Caribbean Rehabilitation Center, Inc., 24 Fla. L. Weekly Supp. 844a (Miami-Dade Cty. Ct. December 20, 2016) (Hon. Beovides). In the matter sub judice, it is undisputed that the Defendant scheduled and noticed two EUOs, which the Assignor failed to attend. Failure to attend the properly scheduled and noticed EUOs, regardless of whether they were set within thirty days of receipt of the bills, constituted a failure to satisfy a condition precedent. Therefore, the Plaintiff, who was assigned the rights and benefits of the Assignor, is not entitled to any PIP benefits from the Defendant.
Accordingly, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment based on a Failure to Attend Examinations under Oath is hereby GRANTED.
