27 Fla. L. Weekly Supp. 980a
Online Reference: FLWSUPP 2711RPERInsurance — Personal injury protection — Examination under oath — Failure to attend — Where insurer’s request for EUO was made more than 30 days after it received medical bills, request was untimely
HILLSBOROUGH THERAPY CENTER, INC. (a/a/o Rolando Perez), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 17-CC-045153, Division L. January 6, 2020. Cynthia S. Oster, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. Hector Muniz, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before the court on February 7, 2019 on the parties’ competing Motions for Final Summary Judgment. The court having considered the arguments presented by the parties, record evidence filed, applicable statutes and case law, and being otherwise fully advised in the premises, finds:
1. Both parties filed competing motions for final summary judgment based upon an alleged failure to appear for EUOs by the named insured, Rolando Perez.
2. The undisputed facts reflect the following:
a. On July 3, 2017, Defendant received the first set of Plaintiff’s medical bills.
b. On October 4, 2017, Defendant submitted its initial request for an EUO to occur on October 12, 2017.
c. On October 12, 2017, Rolando Perez failed to appear at the EUO.
d. Defendant noticed Plaintiff for a second EUO to occur on October 25, 2017.
e. On October 25, 2017, Rolando Perez failed to appear at the second scheduled EUO.
f. On November 3, 2017, Defendant issued its denial of payment of Plaintiff’s medical bills, based upon an alleged failure to attend EUOs.
3. Section 627.736(4)(b), Florida Statutes, requires PIP benefits to be paid within 30 days after the insurer is furnished written notice of the fact of a covered loss.
4. Although the Court agrees with the Defendant that attendance at an EUO is a condition precedent to recovering PIP benefits pursuant to Section 627.736(6)(g), Florida Statutes, this does not mean the insurer has an indefinite period of time to schedule an EUO. See Central Florida Chiropractic Care (a/a/o David Cherry) v. Geico Ind. Co., 24 Fla. L. Weekly Supp. 152a (Fla. 6th Cir. Cty. Ct., Orange Cty., April 22, 2016, Judge Steve Jewett).
5. It is undisputed that Defendant’s request for an EUO was not made until well outside the 30 day window for payment of the claim. Therefore, such a request is untimely. Bain Complete Wellness, LLC (a/a/o Manuel Ortiz) v. Windhaven Ins. Co., (Fla. 13th Jud. Cir., Hillsborough Cty., Case No. 17-CC-011964, July 9 2018, Jared Smith, Judge) [26 Fla. L. Weekly Supp. 413b]; citing Tropical Healing Power, LLC (a/a/o Brandon Venable) v. Mendota Ins. Co. 19 Fla. L. Weekly Supp. 142a (Fla. 13th Jud. Cir., Hillsborough Cty., May 6, 2011, Herbert M. Berkowitz, Judge) wherein the court followed the 30 day “statutory countdown” for the scheduling an EUO begins when Defendant has notice of the claim of the claim and the medical bills for which Plaintiff seeks reimbursement.
6. If Defendant had requested an EUO prior to the 30 day time period for payment, and Defendant failed to attend said EUO, depending on the facts, Defendant may have a defense for non-payment of PIP benefits due to Plaintiff’s failure to cooperate. However, that is not the case here.
7. Defendant failed to request an EUO within the 30 day time period for payment nor did it pay or deny the claim within the 30 day time period. As result, Defendant was in breach of its insurance contract.
8. As such, Plaintiff’s Motion for Final Summary Judgment is HEREBY GRANTED.
9. Defendant’s Motion for Final Summary Judgment is HEREBY DENIED.
