26 Fla. L. Weekly Supp. 309b
Online Reference: FLWSUPP 2604DPERInsurance — Personal injury protection — Insurer properly denied payment to insured’s assignee based on insured’s failure to attend properly scheduled and noticed examinations under oath
AMERICAN HEALTH PROVIDERS, CORP., a/a/o Dayan Perez, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No: 16-004063 CC 21. June 1, 2018. Judith Rubenstein, Judge. Counsel: Edersy Suarez, Law Office of Edersy Suarez, Miami Lakes, for Plaintiff. Christopher Jaramillo, Windhaven Insurance, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court on May 17, 2018 for hearing on “Defendant’s Motion for Final Summary Judgment,” (the “Motion”), filed on October 2, 2017, by WINDHAVEN INSURANCE COMPANY (the “Defendant”). After considering the Motion, oral argument, the Court file, and being otherwise advised in the premises, this Court ORDERS AND ADJUDGES as follows:
A. Introduction
AMERICAN HEALTH PROVIDERS, CORP. (the “Plaintiff”), as the assignee of Windhaven’s insured, filed a Complaint asserting a single count for breach of contract against Windhaven alleging that Windhaven should have paid under the policy of insurance at issue. Defendant denied payment as the assignee failed to submit to an examination under oath (“EUO”), as required by contract and permitted by Florida Statute (F.S. 627.736(6)(g)) and therefore the claimant, and any subsequent assignee, is not entitled to receive benefits. Specifically, Dayan Perez (the claimant) failed to submit to an examination under oath on December 5, 2016 and December 12, 2016 despite proper notice. As such, Plaintiff (standing in the shoes of its assignor) has failed to comply with conditions precedent to coverage and it is precluded from bringing the subject suit.
B. Undisputed Findings of Fact
Dayan Perez entered into an insurance contract with Defendant on July 8, 2016. The contract specifically requires that claimants:
E. As a condition precedent to receiving personal injury protection benefits, submit to an examination under oath, provide a statement under oath, or do both, as reasonably often as we require. Such person or organization must answer questions under oath, asked by anyone we name, and sign copies of the answers. . .The examination under oath will occur at a time and place of our choosing. If that person or organization unreasonably refuses to submit to an exam, we will not be liable for personal injury protection benefits.
On or about August 10, 2016, claimant was allegedly involved in an automobile accident. As a result of the alleged accident, claimant allegedly received medical services provided by Plaintiff. On November 8, 2016, Defendant sent a “Notice of Taking Examination Under Oath” (hereinafter “Notice”) via certified mail and regular mail to Dayan Perez’s address as found in his policy application, declarations page, and Plaintiff’s medical bills in order to determine if the claimant was entitled to coverage under Windhaven’s policy. However, the certified mail envelope was returned to Windhaven, with a stamp from the United States Postal Service claiming, “attempted service but unable to deliver,” as a handwritten note on the envelope saying “Refused, don’t live here.” The regular mail envelope was not returned to Windhaven. The first EUO was scheduled to take place on December 5, 2016. The claimant failed to attend this first EUO appointment and Windhaven took a Certificate of Non-Appearance which Defendant attached to the Motion. The claimant also failed to attend the second EUO appointment on December 12, 2016 and Windhaven took a Second Certificate of Non-Appearance, also attached to the Motion. In response to Plaintiff’s Notice of Intent to Initiate Litigation from Plaintiff seeking payment of PIP benefits, Defendant advised Plaintiff that the claimant had failed to comply with a condition precedent to receiving PIP benefits by failing to attend either of the two EUOs. Therefore, the Plaintiff, as the claimant’s assignee, was not entitled to receive PIP benefits.
C. Conclusions of Law
1. Defendant Properly Denied this Claim when the Claimant Refused to Submit to an Examination Under Oath as Required by Law and Policy Language
Pursuant to section 627.736(6)(g), Florida Statutes (2013), “[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.” Windhaven’s Policy clearly and unambiguously requires its claimants to submit to an examination under oath, otherwise Defendant will not be liable for personal injury protection benefits. Windhaven, in fact, provided two opportunities for Dayan Perez to attend an examination under oath with an abundant period of time to set aside time to attend the EUO.
An EUO provision in an insurance contract is a valid and binding term of an insurance policy, which is considered contractual in nature. Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 305 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a]. In that same vein, conditions in insurance policies are part of the consideration for assuming the risk, and the insured, by accepting the policy, becomes bound by these conditions. Id. at 304. In this case, the insurance policy requires that, as a condition precedent to eligibility for PIP benefits, an insured seeking PIP benefits must attend an EUO if requested by Defendant. By failing to attend the EUO, the Claimant, as is the case here, has breached the contract by depriving Defendant of a valuable right for which it had contracted. Id. at 300.
Pursuant to Savin Medical Group, LLC a/a/o Teresita Machado v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 762b (Cannava, J.) (Miami-Dade Cnty. Ct. Dec. 4, 2015), the court held that language in a PIP policy putting the insured on notice that he or she must submit to an EUO, created a true condition precedent to receipt of PIP coverage. Id. The court further held that the insurer need not prove the absence of, and the claimant may not plead the presence of, reasonable circumstances leading to the failure to attend. Id.
The policy in this case at bar was incepted on July 8, 2016, which is after January 1, 2013. Therefore, section 627.736, Florida Statutes (2013) is applicable in this case. Unlike the 2008 Florida No-Fault Act, the 2013 Florida No-Fault Act specifically allows an insurer to require individuals seeking PIP benefits to attend an EUO as a condition precedent to receiving PIP benefits. As such, Dayan Perez’s failure to attend the properly scheduled EUO, as required by Florida law and the terms of Defendant’s policy, bars the Plaintiff from receiving any PIP benefits under the policy.
2. Plaintiff’s Has Not Presented any Evidence to Create an Issue of Material Fact and Insured has the Responsibility to Keep Insurer Advised of Current Address
Plaintiff attempted to argue against Windhaven’s position by relying on Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010) [35 Fla. L. Weekly S640a] to explain that Defendant’s Motion for Summary Judgment should be denied by claiming that Windhaven had adopted an “unreasonable refusal standard” as with compulsory medical exams and further claiming Defendant did not meet the standard on account the Certified Letter of Defendant’s Notice of EUO was returned to the insurer. However, the Florida Supreme Court in Custer was explaining that denial of payment based on a failure to attend compulsory medical examination noticed was improper as the insurer failed to present any evidence on its affirmative defense was unreasonable as a matter of law. Defendant, contrarily presented a copy of the Notice of Examination Under Oath, the receipt that the notice was sent via regular mail, and the Certificates of Non-Appearance for the two EUOs.
Furthermore, in the wake of the Supreme Court’s ruling in 2010, the Third District Court of Appeals found in Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So.3d 41 (Fla. 3d. DCA 2010) [36 Fla. L. Weekly D54b] (hereafter “Comprehensive I,”) that when both parties agreed the claimant did not appear for multiple medical exam appointments because the claimant never received notice of them and/or their attorney did not inform, such excuses were an “unreasonable basis to excuse. . .non-appearance.” Id. at 43. Hence, the Third District Court of Appeals noted that because no reasonable basis for non-attendance to United’s medical exam was provided and because the insurer provided evidence of proper service of the medical exams on the claimant, summary judgment was appropriate in favor of United according to the “unreasonable refusal standard.”
Years later, the Third District Court of Appeals further distinguished Custer from the facts presented in Comprehensive I with United Auto. Ins. Co. v. Comprehensive Health Center, 173 So.3d 1061 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1839a] (hereafter “Comprehensive II”). Here, the appellate court found that in Custer, the Supreme Court noted that the trier of fact was not presented with affirmative evidence by the insurer that the claimant received notice of the scheduled medical examinations or that any failure was unreasonable. Id. at 1068. Meanwhile in Comprehensive II, the court noted that there was “a determination by an appellate division that United’s evidentiary presentation demonstrated the absence of any material issue of fact concerning the ‘unreasonable refusal’ issue.” Id. at 1069. This was because the insurer presented undisputed evidence at summary judgment that the notice of the medical examination was sent via certified mail to the claimant and claimant’s attorney. Id. at 1066. As a result, the Third District Court of Appeals found the trial court had “no discretion” to deny the insurer’s motion for summary judgment based on the reasonableness of the claimant’s failure to attend the medical exams. Id. at 1067. Like the insurer in Comprehensive I and Comprehensive II, the Defendant has presented this Court a wealth of undisputed evidence that it properly noticed the EUO of Dayan Perez (as evidenced by the regular mail receipt and adjuster’s affidavit verifying this business practice) and that the claimant failed to attend either EUO (as evidenced by two Certificates of Non-Appearance).
This Court also finds that it is the responsibility of the named insured to advise their insurer of any changes to their residence to move forward on claims investigations, especially when it comes to noticing the named insured for an EUO. Defendant proved that it mailed the Notice for EUO to the address listed by Dayan Perez as his residence on his policy application, declarations page, and medical bills. The Third District Court of Appeals found in Rodriguez v. Security Nat. Ins. Co., 138 So.3d 520, 523 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D909b] that an insurer provided sufficient proof of notice by mailing renewal offers and notice of policy lapse to the address provided by insured in their application, even though the mailings did not contain the insured’s apartment number because the insured himself failed to include the apartment number in their own application. Similarly, in the instant case, Defendant has provided proof of mailing the Notice for EUO via regular and certified mail to the only address on record for this claimant.
Finally, the Plaintiff has failed to comply with Fla. R. Civ. P. 1.510(c) by failing to produce record evidence that creates any issues of material fact, therefore they have failed to preclude entry of Summary Judgment in favor of the Defendant. See also Moore Meats v. Strawn, 313 So. 2d 660 (Fla. 1975). The Court finds, pursuant to the terms of the insurance policy and section 627.736(6)(g), Florida Statutes (2013), Defendant was entitled to schedule the EUO of the claimant. The claimant’s failure to attend the properly scheduled EUO prevented Defendant from performing its affirmative duty to investigate the claim. Dayan Perez’s failure to appear at the properly scheduled EUO violated the conditions precedent to receiving PIP benefits under Defendant’s policy. Thus, by failing to appear as requested, the claimant materially breached the terms and conditions of the insurance policy and therefore is not entitled to receive PIP benefits. The Court therefore grants Defendant’s Motion for Final Summary Judgment and denies Plaintiff’s Motion for Summary Judgment. This suit is now disposed and is dismissed with prejudice.
