26 Fla. L. Weekly Supp. 225a

Online Reference: FLWSUPP 2603NCASInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Failure to attend — Where insurer was already in breach of policy by failing to pay PIP claim within 30 days before EUO was scheduled to take place, insured was not obligated to submit to EUO

SPINE RECOVERY CLINIC, INC., a/a/o NICOLE CASSARO, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017 32236 COCI, Division: 84. May 8, 2018. Dawn P. Fields, Judge. Counsel: Keith M. Petrochko, Deland, for Plaintiff. Melanie Parris, Miami, for Defendant.

ORDER ON THE PARTIES COMPETING MOTIONSFOR SUMMARY DISPOSITION

This cause having come before the Court on Defendant’s Motion for Final Summary Judgment, and Plaintiff’s Motion for Partial Summary Disposition, the Court having considered the submissions by each party, having heard oral arguments,¹ having reviewed the Court record and being otherwise duly advised in the premises, it is

ORDERED and ADJUDED as follows:

That the Plaintiff’s Motion for Partial Summary Disposition is GRANTED and the Defendant’s competing Motion for Final Summary Judgment on this same issue is therefore DENIED.

FACTUAL BACKGOUND

1. This mater is predicated on an alleged failure to reimburse Personal Injury Protection (“PIP”) Benefits pursuant to Fla. Stat. § 627.736.

2. The Florida No-Fault Statute’s purpose “is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his [or her] life without undue financial interruption.’ ” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000) [25 Fla. L. Weekly S1103a] (quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)).

3. On or about 2/17/2016, Paul Cassaro entered into an insurance contract (the “Policy”) with Windhaven Insurance Company (the “Insurance Company”); the Policy provided for PIP coverage and had effective dates ranging from 2/17/16 through 8/17/16.

4. Nicole Cassaro (the “Insured Patient”), was injured in a motor vehicle Accident on 4/20/16.

5. Pursuant to the Florida No-Fault Law, set forth in Fla. Stat. § 627.736(1), the Policy provided coverage to the Insured Patient

6. Following the motor vehicle accident, the Insured Patient sought medical care from Spine Recovery Clinic, Inc. (the “Healthcare Provider”); prior to receiving the medical care, and as a condition precedent thereto, the Healthcare Provider obtained from the Insured Patient a written assignment of benefits.

7. The Healthcare Provider submitted bills for PIP reimbursement to the Insurance Company, which, to date, have not been paid.

8. Defendant scheduled an Examination Under Oath (“EUO”) of the Insured Patient to take place on December 13, 2016.

9. The Insured Patient did not attend the EUO.

10. Per the Policy, as a condition precedent to filing suit, the insured must be in full compliance with all the terms of the Policy, including the EUO provision.

11. The Policy explicitly states, on page 21 of 28, under “Duties after an accident or loss”, subsection “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. We may require each person or organization answering questions under oath to answer the questions with only that person’s or organization’s legal representative, or representative and no other person present. 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.

(emphasis added).

12. Neither the phrase “unreasonably refuses” not the word “unreasonably” are defined in the Policy.

13. The Insurance Company argues that missing the requested EUO was “unreasonable”; thus, a condition precedent to filing suit had not been established.

14. The Healthcare Provider argues that the question of whether missing an EUO is “unreasonable” is an issue of fact which must be decided by a jury. Further, that by the time the Insurance Company requested the EUO it had already breach Fla. Stat. § 627.736 and the Policy.ANALYSIS

15. The Court finds that the word “Unreasonably” is open to interpretation, and thus a question of material fact is present which must be decided by the trier of fact.

16. The Court finds Amador v. United Auto Ins. Co. 748 So. 2d 307 (3d DCA 1999) [24 Fla. L. Weekly D2437a] persuasive. In Amador, the court found that the “burden is clearly on the insurer to authenticate the claim within the statutory time period.” Further, that “where the insurer did not pay by the statutory 30-day period, on the 31st day the insurer was itself in violation of the PIP statute and the insured was free to initiate a lawsuit. Appellee’s right to request information did not extend beyond the statutory time period.” Id. Although the statutory time period has changed between the Amador decision and the instant case, the reasoning remains the same.

17. The Court finds the Florida Supreme Court case of United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a] distinguishable from the instant case.

18. The Court finds the case of Central Florida Chiropractic Care (a/a/o David Cherry) v. GEICO Indemnity Company, 24 Fla. L. Weekly Supp. 152a (9th Cir. April 22, 2016) persuasive. In Cherry, the ninth judicial circuit, sitting in its appellate capacity, found that when the statutory investigatory period is at an end the insurer must either deny or pay the claim. Nothing in the PIP statute allows for that statutory time period to be arbitrarily increased by the insurer for an indefinite amount of time. Id. The Cherry court further found that “by the time Cherry failed to appear for the schedule EUO, Geico had already breached the insurance policy, since it failed to pay the PIP claim within 30 days. Because Geico was already in breach of the insurance contract before the EUOs were schedule to take place, Cherry was not obligated to submit to them.”

19. Here, as in Cherry, the request for an EUO was untimely; when the Insured Patient failed to attend the EUO the Insurance Company was already in breach of the Policy.

20. Although the Court notes that certain issues may be challenged after the investigative period prescribed in Fla. § 627.736(4)(i) have past, such as challenges to Reasonableness of charges, Relatedness of the injury to the event giving rise to the claim, and Necessity of Treatment, in this instance the Insurance Company is without a defense in law or fact as to the nonpayment of the subject claim.

THEREFORE, IT IS HEREBY ORDERED that:

1. Defendant’s Motion for Final Summary Judgment is Denied.

2. Plaintiff’s Motion for Partial Summary Disposition is Granted.

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¹Although both motions were noticed for April 27, 2018, Plaintiff’s argument was continued by agreement of the parties until May 3, 2018. See Memorandum by Judge, docket entry 45.