26 Fla. L. Weekly Supp. 995a

Online Reference: FLWSUPP 2612GUERInsurance — Personal injury protection — Coverage — Examination under oath — Failure to appear — Insurer is not liable for PIP benefits where insured failed to appear at two EUOs of which insured and his attorney had notice, and insured offered no explanation for failure to appear

FLORIDA PAIN AND WELLNESS CENTERS, INC., a/a/o Juan Guerrero, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 17-CC-017932, Division I. January 17, 2019. Joelle Ann Ober, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. Birdy V. Vanasupa, Windhaven Insurance, Miami, for Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT and GRANTING DEFENDANT’SCROSS-MOTION FOR FINAL SUMMARY JUDGMENTand FINAL SUMMARY JUDGMENT FOR DEFENDANT

THIS CAUSE came before the Court at a hearing on September 25, 2018, on Plaintiff’s Motion for Final Summary Judgment filed April 24, 2018, and on Defendant’s Cross-Motion for Final Summary Judgment filed September 20, 2018. Having reviewed and considered the Motions,¹ the arguments presented by the parties, the applicable law, and being otherwise fully advised, the Court finds:

1. On May 11, 2017, Plaintiff instituted this action for personal injury protection (PIP) benefits against the Defendant. This matter involves a motor vehicle accident that allegedly occurred on October 4, 2016 for which the assignee, Mr. Guerrero, was covered by a policy of insurance with the Defendant.

2. Florida Statutes section 627.736(6)(g) provides for a claimant’s compliance with terms of an insurance policy, including the submission to an examination under oath, and compliance is a condition precedent to receipt of PIP benefits. The subject policy of insurance provides: “If a person or organization unreasonably refuses to submit to an exam, we will not be liable for personal injury protection benefits.”

3. The record evidence before the Court establishes that there exists no genuine issue of material fact that:

a. By letter dated October 15, 2016, Defendant gave notice of the scheduled examinations under oath (“EUO”) to claimant, Juan Guerrero, and his personal injury attorney;

b. Notice was provided to both Mr. Guerrero and his personal injury attorney via regular and certified mail and was additionally faxed to Mr. Guerrero’s personal injury attorney;

c. The notice provided Mr. Guerrero and his personal injury attorney with two alternative dates to appear for the EUO — November 28, 2016 and December 6, 2016;

d. Mr. Guerrero failed to appear for either of the dates provided for the EUO;

e. Neither Mr. Guerrero nor his personal injury attorney contacted Defendant to object to or reschedule the EUOs; and

f. Neither Mr. Guerrero nor his personal injury attorney contacted Defendant to provide a reason for the failure to appear at either the November 28, 2016 or the December 6, 2016 EUO appointment.

4. The Court finds that, through the summary judgment evidence before it, Defendant has shown that Mr. Guerrero unreasonably refused to submit to an examination under oath required by the subject policy of insurance.

5. The Court finds that Plaintiff has failed to provide or point to any competent summary judgment evidence to indicate that there exists a genuine issue of material fact as to the reasonableness of Mr. Guerrero’s failure to appear at the EUO or a willingness to comply with the subject policy provision in this matter so as to preclude summary judgment. There is no indication that Mr. Guerrero or his personal injury attorney did not receive notice of the scheduled EUO, that either attempted to reschedule the EUO appointments, or advised Defendant that Mr. Guerrero would be unable to attend either EUO for any reason, or that an unexpected event prevented Mr. Guerrero’s attendance — the existence of any of these would have likely created an issue of fact as to whether Mr. Guerrero’s non-attendance constituted an unreasonable refusal to submit to examination, thereby precluding summary judgment. Instead, this is an unexplained failure to attend a properly noticed examination under oath, which this Court deems to be an unreasonable refusal to submit to an examination under oath. See Comprehensive Health Center, Inc. v. United Automobile Insurance Company, 56 so. 3d 41, 44 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D54b] (indicating “[w]hen a claimant is represented by counsel and counsel received valid notice via certified mail, it is not a reasonable excuse for non-attendance if counsel did not tell the claimant, just the same as would be an unexplained failure to attend”) (emphasis added).

6. Additionally, the Court finds the legal authority relied upon by the Plaintiff to support its argument to be distinguishable. Unlike the circumstances in Barthelemy v. Safeco Insurance Company of Illinois, __ So. 3d __, 2018 WL 5291274 (Fla. 4th DCA Oct. 24, 2018) [43 Fla. L. Weekly D2379a], this case involves PIP benefits and an examination under oath policy provision that is a condition precedent to coverage. This is also unlike the situation in Custer Medical Center v. United Automobile Insurance Company, 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a], that involved the failure to attend a medical examination, which is not a condition precedent to PIP benefits. Additionally, the Custer Court cites lack of evidence presented by the insurer to prove its affirmative defense relative to refusal to submit to the medical examination, noting that that the only evidence concerning the failure to attend was the letter suspending benefits. Id. at 1097. In this case, this Court has substantially more evidence before it relative to the circumstances surrounding the failure to attend, including the notice provided and the lack of attempt to reschedule or excuse the nonattendance.

Based on the foregoing, it is therefore ORDERED AND ADJUDGED

1. Plaintiff’s Motion for Final Summary Judgment filed April 24, 2018 is hereby DENIED.

2. Defendant’s Cross-Motion for Final Summary Judgment September 20, 2018 is hereby GRANTED.

3. Final Summary Judgment is hereby entered in favor of Defendant, WINDHAVEN INSURANCE COMPANY. Plaintiff shall take nothing by this action and Defendant shall go hence without day.

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¹Plaintiff did not object to the Court hearing and ruling on Defendant’s Cross-Motion for Final Summary Judgment at the September 25, 2018 hearing.