26 Fla. L. Weekly Supp. 974a
Online Reference: FLWSUPP 2612KENNInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Failure to attend — Where letter scheduling EUO did not mention that insurer was investigating claim for suspicion of insurance fraud, insurer was not entitled to additional 60 days to investigate claim under section 627.736(4)(i) — Amendment to PIP statute stating that submission to EUO is condition precedent to receipt of benefits does not affect requirement that insurer comply with investigative timeline imposed by section 627.736(4)(b) — Insurer waived right to deny benefits based on insured’s failure to appear at first EUO where insurer continued to process claim thereafter and scheduled second EUO — Insurer is precluded from denying benefits based on failure to attend second EUO where investigation had already exceeded 30-day time limit and claim was overdue by date of second EUO
CONROY CHIROPRACTIC, INC., a/a/o Erica Kennedy, Plaintiff, v. GEICO INDEMNITY COMPANY Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-SC-9565-O. December 28, 2018. Eric H. DuBois, Judge. Counsel: Crystal L. Eiffert, Eiffert & Associates, P.A., Orlando, for Plaintiff. John J.P. McMillen, Law Office of Kelly Wilson, Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO DEFENDANT’S ONLYAFFIRMATIVE DEFENSE FOR DATES OF SERVICE3/17/15-4/08/15
THIS MATTER came before the Court on Plaintiff’s Motion for Summary Judgment as to Defendant’s Only Affirmative Defense for Dates of Service 3/17/15-4/08/15, heard before this Honorable Court on November 16, 2018 with both parties present, and, being considered by the Court and otherwise being fully advised of the premises; it is hereby ORDERED AND ADJUDGED that:
1. On August 10, 2017, Plaintiff filed suit against GEICO INDEMNITY COMPANY for breach of contract for failure to pay medical bills pursuant to Florida Statute §627.736 and its policy of insurance.
2. On April 28, 2017, Defendant filed its Amended Answer and Affirmative Defenses and listed only one defense: that Defendant is not liable for payment of personal injury protection benefits to Plaintiff because Erica Kennedy failed to comply with a condition precedent in the Policy by failing to attend an examination under oath (EUO) scheduled for April 20, 2015 and May 18, 2015.
3. The undisputed evidence presented at the hearing showed that GEICO issued a policy of insurance to Erica Kennedy which provided Personal Injury Protection benefits pursuant to Florida Statutes §627.730-627.7405. Assignor Kennedy was involved in a motor vehicle accident on March 8, 2015 which was a covered loss under the subject policy. As of result of the motor vehicle accident, Assignor Kennedy was injured and sought treatment from the Plaintiff for those injuries. Defendant received an assignment of benefits from Plaintiff and thereafter timely received medical bills from Plaintiff for treatment provided to Assignor Kennedy from March 17, 2015 through April 8, 2015. Defendant received Plaintiff’s bills as follows:
| DOS | 3/17/15 | Recv’d. | 3/23/15 |
| DOS | 3/24-3/25 | Recv’d. | 3/30/15 |
| DOS | 3/31/15 | Recv’d. | 4/08/15 |
| DOS | 4/2-4/8 | Recv’d. | 4/11/15 |
4. GEICO did not pay the medical bills submitted by Plaintiff.
5. Defendant argued that Defendant is not liable to the Assignor or to Plaintiff for personal injury protection benefits under the subject policy because Erica Kennedy failed to comply with a condition precedent to receiving benefits under the Policy. Specifically, Defendant argued that Erica Kennedy failed to appear for an Examination Under Oath (EUO) on April 20, 2015 and May 18, 2015.
6. As a result, Defendant denied liability for payment of personal injury protection benefits for Ms. Kennedy on June 8, 2015 and refused to reimburse Plaintiff for services provided to Ms. Kennedy from March 17, 2015 through April 8, 2015.
7. Plaintiff filed a Motion for Summary Judgment as to Defendant’s Affirmative Defense dealing with the EUO no show and specifically sought summary judgment as to dates of service March 17, 2015 through April 8, 2015 arguing that GEICO’s EUO requests were untimely and therefore Defendant is precluded from denying reimbursement for those dates of service based on Ms. Kennedy’s failure to attend an examination under oath.
8. According to the evidence, Defendant’s first request for an EUO was sent, via regular mail, to Erica Kennedy on April 9, 2015 for an EUO scheduled to occur on April 20, 2015 at 11:00 a.m. Defendant did not know when the letter was mailed out and could not confirm whether Ms. Kennedy received the notice as the notice was not sent Certified Mail or by any other means that would confirm receipt.
9. The parties agreed that the evidence demonstrated that Ms. Kennedy failed to appear at the April 20th EUO and Defendant obtained a Certificate of Non-Appearance.
10. Defendant did not deny benefits to Ms. Kennedy based on the April 20th EUO no show. Instead, by letter dated April 24, 2015, Defendant scheduled a second EUO of Ms. Kennedy to occur on May 18, 2015. Defendant could not confirm when the letter was mailed nor whether Ms. Kennedy received the notice. Ms. Kennedy failed to appear at the May 18, 2015 EUO and Defendant obtained a Certificate of Non-Appearance.
11. However, Defendant did not deny benefits to Ms. Kennedy at the time of the non-appearance at the May 18th EUO. By way of certified letter to Ms. Kennedy dated June 6, 2015, Defendant denied coverage for PIP benefits under the subject policy for Ms. Kennedy’s failure to appear for an examination under oath.
12. A PIP insurer is given thirty (30) days to investigate claims, and to either pay them or discover the facts that warrant a refusal to pay. §627.736(4)(b)(2014); January v. State Farm, 838 So.2d 604, 607 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D484a]. In order to extend the time of the investigatory period, Section (4)(i), Florida Statute §627.736, allows for an additional 60 days to investigate if the insurer has a reasonable belief that a fraudulent insurance act has occurred and the insurer notifies the claimant, in writing, that the claim is being investigated for suspicion of insurance fraud.
13. Defendant argued that the first letter to Ms. Kennedy, dated April 9, 2015, satisfied the requirements of Section (4)(i) giving GEICO an additional 60 days to investigate the claim. Defendant further argued that before the expiration of that 60 days, on June 6, 2015, GEICO denied Ms. Kennedy’s claim. Defendant contends that the thirty (30) day time period was tolled and that GEICO timely notified Ms. Kennedy of their claims’ decision before the expiration of the additional investigatory time frame.
14. Plaintiff argued that Defendant’s April 9, 2015 letter was a request to conduct an examination under oath and that GEICO never advised the claimant that the claim was being investigated for suspicion of insurance fraud. As a result, Plaintiff argued that GEICO’s thirty days in which to conduct its investigation expired, and GEICO cannot condition payment of medical bills upon its insured’s appearance at an EUO scheduled after that time period has expired.
15. Plaintiff further argued that by scheduling Ms. Kennedy for a second examination under oath on May 18, 2015, the Defendant waived its right to deny Plaintiff’s claim due to Ms. Kennedy’s failure to appear at the April 20th EUO.
16. After reviewing the evidence submitted and the case law argued by counsel, this Court agrees with the Plaintiff that Defendant’s April 9, 2015 letter makes no mention that GEICO is investigating Ms. Kennedy’s claim for suspicion of insurance fraud. As a result, Defendant has not complied with the statutory mandates that would entitle Defendant to an additional sixty days to investigate this claim. As a result, Defendant had thirty (30) days to investigate the claim. See; FL Stat. §627.736(4)(b) and January v. State Farm, 838 So.2d 604, 607 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D484a].
17. Failure to investigate the claim within the thirty day window waives the right to certain investigatory tools, such as conditioning payment upon its insured appearance at an EUO after that time period has expired. Amador v. United Auto. Ins. Co., 748 So.2d 307 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2437a]; January at 607. At the end of that thirty day window, the insured’s subsequent lawsuit becomes immediately ripe. Id.
18. Therefore, GEICO’s failure to pay Plaintiff’s bills within thirty (30) days of receipt of the notice of a covered loss puts GEICO in breach of the contract. The insurer’s duty to investigate a claim within thirty (30) days is not affected by the addition of (6)(g) to the No-Fault law in 2013. Section 627.736(6)(g) states that an insured must submit to an examination under oath if requested by the insurer and compliance is a condition precedent to receiving benefits. See; Fla. Stat. 627.736(6)(g)(2013). Despite this addition, Amador and January still remain controlling case law which requires compliance with the investigative timeline imposed by Section (4)(b). See; Fla. Stat. 627.736 (2013); Geico Indem. Co. v. Central Florida Chiropractic Care a/a/o David Cherry. See; Orange County Case No. 2016-CV-000038-A-O (9th Jud. Cir. Appellate Div. 2017) [26 Fla. L. Weekly Supp. 613a].
19. Furthermore, the Court finds that Defendant’s course of conduct constitutes a waiver of its right to deny Plaintiff’s bills for Ms. Kennedy’s failure to appear at the April 20, 2015 EUO because Defendant’s conduct demonstrated that Defendant continued to process the claim as if no defect existed for the failure to appear at the April 20, 2015; continued to proceed as if no breach had occurred; Defendant continued to investigate the claim by scheduling a second EUO; and Defendant did not deny Plaintiff’s claim for Ms. Kennedy’s failure to appear at the April 20, 2015 EUO. As Defendant’s investigation had exceeded the thirty day time limitation, Plaintiff’s claim was already overdue and Defendant is therefore precluded from denying reimbursement based on the claimants failure to attend the April 20, 2015 EUO. See; Ponders v. Fortune Ins. Co., 578 So.2d 1129 (Fla. 3d DCA 1991); Universal Medical Ctr. of South Florida v. Fortune Ins. Co., 761 So.2d 386 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1068a]; Tomas v. U.S. Security Ins. Co., 9 Fla. L. Weekly Supp. 21b (Fla. 11th Jud. Cir. Miami-Dade County (Appellate) Nov. 6, 2001); Cardenas Medical Services, Inc. a/a/o Mariela B. Cespedes v. State Farm Mut. Auto Ins. Co., 14 Fla. L. Weekly Supp. 1060b (Fla. 11th Jud. Cir. Miami-Dade County September 7, 2007) (“whenever an insurer reschedules a previously set EUO, the latest date scheduled is the date that is controlling when determining whether the insured complied with a condition in the insurance contract”).
20. Plaintiff’s Motion for Summary Judgment as to Defendant’s Only Affirmative Defense relating to Defendant’s denial of personal injury protection benefits for dates of service March 17, 2015 through April 8, 2015 due to their insured’s failure to attend an examination under oath is hereby GRANTED.
