27 Fla. L. Weekly Supp. 418a
Online Reference: FLWSUPP 2704CWILInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Where insured failed to attend properly noticed EUO, insured failed to satisfy condition precedent to coverage and medical provider is not entitled to PIP benefits — Insurer did not waive right to notice EUO by scheduling EUO more than 30 days after receipt of provider’s bills
FIDEL S GOLDSON DC PA, a/a/o Cecilia Williams-Brown, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO17000985, Division 70. June 1, 2019. John D. Fry, Judge. Counsel: John C. Daly, Jr., for Plaintiff. Susette Gruebele and Jordanne Spencer, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
SUMMARY FINAL JUDGMENT
This cause came before the Court on May 21, 2019, on Defendant’s Motion for Summary Judgment based upon the Assignor’s failure to attend an Examination Under Oath (hereinafter EUO). After reviewing the pleadings, affidavits, the evidence, the court record, and after hearing argument of counsel for the parties, the Court hereby grants Final Summary Judgment in favor of the Defendant.
ANALYSIS AND FINDINGS OF FACT
FIDEL S. GOLDSON, D.C. P.A. (hereinafter the Plaintiff) as an assignee of Cecilia Wililams-Brown (hereinafter the Assignor), sued State Farm Mutual Automobile Insurance Company (hereinafter the Defendant) for breach of a contract of Personal Injury Protection benefits under Florida’s No Fault Law. The Assignor was allegedly involved in a motor vehicle accident on July 9, 2016 and received treatment from the Plaintiff from July 21, 2016 through September 30, 2016.
On September 9, 2016, the Defendant requested an Examination Under Oath from the Assignor. The Examination Under Oath was set to occur on October 6, 2016. The Assignor was served by way of substitute service on Curtis Brown, a co-resident. Due to Hurricane Matthew, the Examination Under Oath was rescheduled.
On October 11, 2016, the Defendant again requested an Examination Under Oath from the Assignor. The Examination Under Oath was set to occur on October 21, 2016. The Assignor was served by way of substitute service on Curtis Brown, a co-resident. On October 21, 2016, the Assignor failed to appear for the properly scheduled and noticed Examination Under Oath and a Certificate of Non-Appearance was obtained.
The Defendant did not pay the Plaintiff’s bills and this action was filed on January 27, 2017.
The Defendant’s Answer includes a number of affirmative defenses. Relevant to the issues of this Motion is the Plaintiff, standing in the shoes of the Assignor, is not entitled to benefits because the Assignor failed to satisfy a condition precedent to benefits when she failed to appear for a properly scheduled Examination under Oath pursuant to the policy at issue and Florida Statute 627.736(6)(g).
The parties stipulate that the Assignor did not appear for the Examination Under Oath. This was further proven by way of the Certificate of Non-Appearance which was placed into evidence and attached to the affidavit of Claims Professional Debbie Meadows.
This Court finds that Defendant provided proper notice of the Examination Under Oath. The Examination Under Oath Notices were properly sent to the Assignor’s last known address which was provided by Plaintiff in their bills submitted to Defendant. Additionally, the Assignor was properly served via substitute service on a co-resident. Additionally, as noted in Brown v. Giffen Indus., Inc., 281 So. 2d 897, 900 (Fla. 1973) under Florida law, there is a rebuttable presumption that mail properly addressed, stamped, and mailed was received by the addressee. The Court finds there is no evidence to suggest that the Assignor was not provided with proper notice. Additionally, “When something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the addressee.” Torrey v. Torrey, 815 So. 2d 773 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1083a]. The Plaintiff did not present any evidence to show that the Assignor did not receive notice. As such, this Court finds that the Assignor received proper notice for the Examinations Under Oath.
“When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla. 1952). The Defendant submitted evidence that the Assignor was notified for an Examination Under Oath and the Assignor failed to appear. The Plaintiff does not dispute the Defendant’s evidence.
Plaintiff argued that Amador v. United Auto Ins. Co., 748 So. 2d 307 (Fla 3rd DCA 1999) [24 Fla. L. Weekly D2437a] applies to the case at hand and that, despite the Assignor’s failure to attend the EUO, they are forever barred for denying the bills due to the Assignor’s failure to attend the Examination Under Oath because Defendant did not request the EUO within thirty (30) days of receiving the bills. This Court disagrees for the following reasons and based upon the following authority.
Since the ruling in Amador v. United Auto Ins. Co, the No-Fault statute has undergone several revisions. This case is controlled by the version §627.736 of the Florida Statutes that went into effect on January 1, 2016. Specifically sub-section (6)(g) was added, and reads:
(emphasis added).
(g) An 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. The scope of questioning during the examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this paragraph is a condition precedent to receiving benefits. An insurer that, as a general business practice as determined by the office, requests an examination under oath of an insured or an omnibus insured without a reasonable basis is subject to s. 626.9541
The Defendant incorporated the above statutory language into the applicable insurance policy. More specifically, the policy reads:
INSURED’S DUTIES
5. Questioning Under Oath
a. No Fault Coverage, each insured making claim or seeking payment, must at our option:
1. Submit to an examination under oath;
…Compliance with Questioning under Oath is a condition precedent to receiving benefits.
Furthermore, the Exclusions section of the policy reads: “THERE IS NO COVERAGE FOR: (3) ANY INSURED PERSON: (d) WHO REFUSES TO: (1) SUBMIT TO, COMPLETE, OR FAILS TO APPEAR AT AN EXAMINATION UNDER OATH.”
The Plaintiff contends §627.736(4)(b) of Florida Statutes imposes a thirty day time limit for the Defendant to complete its investigation of the claim. Plaintiff relies on Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a], which held that an insurer could not use its investigative rights to toll the thirty day time limit provided for in sub-section (4)(b).
The Amador court dealt with a different version of §627.736 of Florida Statutes than the 2016 version at issue here. First and foremost, sub-section (6)(g) now exists and makes attendance at an EUO a statutory condition precedent to receiving benefits. Sub-section (4)(b) is also different. It is now titled “Payment of Benefits” instead of “Benefits; When Due.” Subsequent to the Amador decision, the Fourth District Court of Appeal decided AIU Insurance Company v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a]wherein they wrote:
We interpret section 627.736(4) to mean that if PIP benefits are payable, they are due within thirty days after notice. If the insurer has refused to pay the bill within thirty days and does not have reasonable proof to establish that it is not responsible, then the insurer is liable for ten percent interest when the bill is paid. Failing to obtain proof that it is not responsible for payment, however, does not deprive the insurer of its right to contest payment.
In Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So.2d 384 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2495a] the court described §627.736(4) as “merely making the insurer liable for interest if payment is not made within 30 days from notice,” and “the function of the statute is to define when interest begins to accrue on unpaid PIP benefits.” The Plaintiff would have the court read the thirty day time period provided for in (4)(b) as something more. The Plaintiff’s reading of the statute imposes a thirty (30) day time frame for an Insurer to notice an EUO or waive its right to seek it. Such a reading would also run afoul of subsection (4)(b)(6) which came into effect in 2001, after Amador, and provides:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30- day period for payment set forth in this paragraph.
The Florida Supreme Court in United Automobile Ins. Co., v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a] put this issue to rest; holding that “the insurer’s failure to pay PIP benefits within thirty days after receiving written notice of a covered loss does not forever bar it from contesting a claim. Additionally, the Court found that statutory sanctions are the only penalties approved by the legislature. (emphasis added).
In Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So. 2d 384 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2495a], the Court held that personal injury protection (PIP) paid under § 627.736(4)(b) shall be overdue if not paid within 30 days. Fla. Stat. ch. 627.736(4)(c) provides that all overdue payments shall bear simple interest at the rate of 10 percent per year. These two provisions merely make the PIP insurer liable for interest on such claims if payment is not made within 30 days from the notice. Hence, appropriately read, the function of the statute is to define when interest begins to accrue on unpaid PIP benefits.
The 11th Circuit in their Appellate Capacity held in Humanitary Health Care, Inc., a/a/o Juan Esquivel v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 531b (March 8, 2005) that it was their belief that Amador was implicitly overruled by United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, (Fla. 2001) [26 Fla. L. Weekly S747a]; where the Supreme Court held that if PIP benefits were not paid within 30 days and the insured does not have reasonable proof that it is not responsible for payment, the payment is overdue. However, “nothing in the statue provides that once a payment becomes overdue the insurer is forever barred from contesting the claim.” Id at 87. The insurer is subject to specific penalties once a payment becomes overdue, including interest and attorney’s fees. The insurer, however, is not forever barred from contesting the claim. While the Court in Humanitary Health Care, Inc., a/a/o Juan Esquivel v. United Automobile Ins. Co., did not have the judicial authority to determine whether Rodriguez overruled Amador, the facts before this Court are different.
Since the ruling in Humanitary Health Care, Inc., a/a/o Juan Esquivel v. United Automobile Ins. Co., the legislature has amended the statute to specifically include that submitting to an Examination Under Oath is a condition precedent to receiving benefits and, consequently Amador — while possibly still good law — does not apply to the case at issue as it concerns a different version of Florida Statute § 627.736.
Plaintiff would ask this Court to read a thirty (30) day limitation into the Statute in which Defendant can request an Examination Under Oath. However, Florida Law is clear that the courts will give a statute its plain and ordinary meaning and that any inquiry into the legislative history may only begin if the court find the statue is ambiguous. Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993) (emphasis added). Further, in applying principals of statutory construction courts must begin with the actual language used in the statute and when considering the meaning of terms used in a statute, Court looks first to the terms ordinary definitions. Raymond James Fin. Servs. Inc. v. Phillips, 126 So 3d 186, 190 (Fla. 2013) [38 Fla. L. Weekly S809a] citing Borden v. East-European Ins. Co., 921 So 2d 587, 595 (Fla. 2006) [31 Fla. L. Weekly S34a]. When the language of a statue is clear and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. (emphasis added). See also State v. Warren, 796 So. 2d 489 (Fla. 2001) [26 Fla. L. Weekly S434b]. Florida Statute § 627.736 subsection (6)(g) is clear and unambiguous in that it makes sitting for an Examination Under Oath a condition precedent to receiving benefits as such this Court finds there is no reason to look outside the statute for interpretation.
In USI Insurance Services of Florida v. Pettineo, 987 So. 2d 763 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1788a] the Court found that one cannot rely on case law that predates the amendment to a statute as that would completely take out any intent the legislature had to amend the law or change the law as they see fit. The Court in this case found that it was error for the lower court to apply prior standards to the case at bar when the statute had been amended.
When a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment. Arnold v. Shumpert, 217 So. 2d 116 (Fla. 1968) citing to Sharer v. Hotel Corp. of America, 144 So. 2d 813, 817 (Fla. 1962) and Webb v. Hill, 75 So. 2d 596, 603 (Fla. 1954).
Because the wording of the No-Fault Statute is clear and amendable to logical and reasonable interpretation, this Court is without power to diverge from the intent of the legislature expressed in the plain language of the statute. Allstate v. Holy Cross Hospital, 961 So. 2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a]. A court should avoid construing a statute in a manner that renders a portion of that language meaningless. See Winn-Dixie Stores v. Reddick, 954 So. 2d 723 (Fla. 1st DCA 2005) [32 Fla. L. Weekly D1089c].
While the Court is required to read statutes in their entirety, the Court is not free to add provisions to parts of a statue under the guise of such reading. The Plaintiff’s reading of the statute imposing a thirty-day time frame for an Insurer to notice an EUO, or waive its right to seek it, is consistent with Amador, but inconsistent with Rodriguez, Daidone, Fortune Ins. and the applicable statute at issue. Even the Court in Nunez v. Geico, 117 So. 3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a], found that “the 2012 Amendment substantively changed, not just legislatively clarified, section 627.736.” As such, this Court cannot read in a thirty (30) day requirement, as requested by Plaintiff, into 627.736(6)(g).
The Fourth District Court of Appeals held in Wright v. Life Ins. Comp., 762 So. 2d 992, 993 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b], that “a no action clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies with the relevant policy provisions.”
In Caribbean Rehabilitation Center, Inc., a/a/o Reynier Cordoves v. State Farm Mutual Automobile Insurance Company, 24 Fla. L. Weekly Supp. 844a (Fla. 11th Jud. Cir. 2016)(aff’d per curiam Caribbean Rehabilitation Center, Inc., a/a/o Reynier Cordoves v. State Farm Mutual Automobile Insurance Company, 2017-000217-AP-01), the court held that submission to an EUO was a condition precedent to receipt of benefits. The court further held that an insurer that schedules an EUO to occur more than thirty days after receipt of the provider’s bills did not waive the right to notice the EUO.
In summary, this Court finds that Fla. Stat. 627.736(6)(g) (2016) makes submission to an Examination Under Oath a condition precedent to receiving benefits. The insurance policy at issue incorporated that statutory provision and, therefore, the Assignor/insured was put on notice of this requirement. The Defendant did not pay benefits within thirty days of receiving notice and would be liable for interest if they are required to pay. Bills cannot be overdue if they are not due in the first place. Prior to the Plaintiff filing suit, the Defendant scheduled, and properly noticed, an Examination Under Oath of the Assignor. As she failed to appear, she failed to satisfy and comply with a condition precedent and is not entitled to benefits. As the Plaintiff stands in the shoes of the Assignor and is entitled to no greater rights or benefits than the Assignor, the Plaintiff-provider is not entitled to benefits either. See, Fla. East Coast Railway Co. v. Eno, 128 So. 622 (Fla. 1930).
Additionally, the policy at issue also states that failure to submit for an Examination Under Oath is an exclusion to coverage. As such, this Court finds that benefits cannot be overdue when a condition precedent to receiving benefits or obtaining coverage has not been met.
Accordingly, the Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
