26 Fla. L. Weekly Supp. 413b
Online Reference: FLWSUPP 2605ORTIInsurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer’s request for EUO was made more than 30 days after it received notice of loss and medical bills, request was untimely
BAIN COMPLETE WELLNESS, LLC; Manuel Ortiz, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No: 17-CC-011964. Division K. July 9, 2018. Jared Smith, Judge. Counsel: Joseph Edwards Nicholas, Tampa, and Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. John Mollaghan, Apollo Beach, for Defendant.
ORDER ON PARTIES’ COMPETINGMOTIONS FOR SUMMARY JUDGMENT
THIS MATTER having come before the Court on the parties’ competing Motions for Summary Judgment. This Court, having considered arguments presented by the parties, applicable law, and being otherwise fully advised, finds,
1. Both parties appear to concede this case centers on the Examination Under Oath (“EUO”) request made by Defendant. Defendant’s sole basis for denial of the claim is Plaintiff’s failure to appear for the EUO. Plaintiff asserts, among other things, that the EUO request was outside of the 30 day window as set forth by Fla. Stat. § 627.736(4)(b): “Personal injury protection insurance benefits paid pursuant to this section are 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.” Neither party disputes and the record confirms that Defendant was provided with notice of the loss on July 7, 2016, and the Bain Complete Wellness, LLC, bills on August 1, 2016. While Defendant did request a statement of the insured within 30 days of provision of the bills, the record reflects and the parties concede that a request for an EUO was not made until October 13, 2016. This is well outside the 30 day window for payment of the claim, and therefore is an untimely request. See Fla. Stat. § 627.736(4)(b) and Tropical Healing Power, LLC, a/a/o Brandon Venable v. Mendota Insurance Company, 19 Fla. L. Weekly Supp. 142a (Fla. 13th Jud. Cir., Hillsborough Cty., May 6, 2011, J. Berkowitz)(the 30 day “statutory countdown” for scheduling an EUO begins when defendant has notice of the claim and the medical bills for which plaintiff seeks reimbursement).
2. Defendant’s Motion for Summary Judgment is, therefore, hereby DENIED.
3. Plaintiff’s Motion for Summary Judgment is, therefore, hereby GRANTED as to liability only.
4. The parties shall meet and confer within 30 days of the date of this Order to jointly prepare a final judgment setting forth the amount of damages. Parties shall submit a proposed final judgment to the Court within 45 days of this Order, reserving jurisdiction to the Court for matters pertaining to entitlement and/or amount of attorneys’ fees and costs. If parties are unable to reach an agreement on the form of the final judgment, parties shall schedule and attend mediation to resolve the issue of damages. Mediation shall be scheduled (not completed, but scheduled) within 45 days of this Order.
5. This Court reserves jurisdiction in regard to entitlement of attorneys’ fees and costs.
