27 Fla. L. Weekly Supp. 203a
Online Reference: FLWSUPP 2707NEWSInsurance — Personal injury protection — Examination under oath — Failure to attend — Insurer’s request for EUO ninety days after receiving claim was untimely — Partial summary judgment is granted in favor of medical provider on affirmative defense of failure to attend EUO
MIRAMAR MEDICAL CENTER, a/a/o Shelly Newstat, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE-16-003677, Division 82. March 19, 2019. Natasha DiPrimo, Judge. Counsel: Gregory E. Gudin and Alexia Hudson, Landau & Associates, P.A., for Plaintiff. Staci Burton, Roig Lawyers, for Defendant.
ORDER GRANTING PLAINTIFF’SPARTIAL MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court regarding Plaintiff’s Motion for Summary Judgment, the Court having reviewed the Motion, heard argument by counsel, reviewed relevant case law and legal authorities, and having reviewed the entire Court file, and otherwise being advised in the premises, the Court finds as follows:
1. This is an action where Miramar Medical Center (hereinafter Plaintiff) as assignee of Shelly Newstat (hereinafter Claimant) has filed a cause of action for breach of a contract for personal injury protection benefits under Florida’s No Fault law against USAA General Indemnity Company (hereinafter Defendant).
2. The Claimant was in an automobile accident on February 22, 2015 and received treatment from the Plaintiff from March 4, 2015 through May 6, 2015.
3. The parties both agree to the following: that the bills were received by the Defendant on March 24, 2015; the Defendant did not respond within thirty-days after receiving the bills; and the request for an Examination Under Oath was sent on June 22, 2015.
4. The Defendant also conceded in the hearing that they were unaware of any notification for extension of time, in writing or otherwise, sent to the Claimant or Plaintiff under Florida Statute § 627.736(4)(i).
5. The parties also agree that the Claimant never appeared for the EUO in this case.Analysis and Findings
The Court, after hearing argument, reviewing the relevant case law, and analyzing Florida Statute § 627.736(4)(b), § 627.736(4)(i), and 627.736(6)(g), finds that the Defendant’s request for an EUO ninety days after receiving the bills of the claim was outside the thirty-day investigative period and was untimely.
The Defendant argues that appearance at a EUO is a condition precedent to receiving benefits under Florida Statute § 627.736(6)(g) and that Florida Statute § 627.736(4)(b) does not change that requirement. The Defendant conceded that they did not respond to Plaintiff’s bills submitted within thirty-days pursuant to Florida Statute § 627.736(4)(b). The Defendant also conceded that their first correspondence to the Plaintiff was a request for an EUO ninety days after receiving the bills. However, the Defendant contends that the consequences for failing to comply with § 627.736(4)(b) is not the preclusion to request an EUO under § 627.736(6)(g), but rather is liability in the form of interest and attorney’s fees if the claim is found to be valid. Thus, the condition precedent under Florida Statute § 627.736(6)(g) is unrelated to the thirty-day time period set for in § 627.736(4)(b). The Defendant relies on United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a], as well as, the Caribbean Rehabilitation Center v. State Farm Mutual Automobile Ins. Co., 24 Fla. L. Weekly Supp. 844a (Miami-Dade Cty. Ct. 2016).
The Plaintiff argues that the Court should not to read § 627.736(6)(g), “in a vacuum” but should consider it along with § 627.736(4)(b) and § 627.736(4)(i). That by reading § 627.736(6)(g) in isolation it would allow the Defendant to arbitrarily extend the time limit under § 627.736(4)(b) and negate the purpose of § 627.736(4)(i). The Plaintiff cites to Amador v. United Automobile Insurance Co., 748 So. 2d 307 (Fla. 3rd DCA 2000) [24 Fla. L. Weekly D2437a], as well as, Geico Indemnity Co. v. Central Florida Chiropractic Care, 26 Fla. L. Weekly Supp. 613a (Fla. 9th Judicial Circuit May 17, 2017).
Although the Defendant’s argument, as well as the holdings in Rodriguez and Caribbean, point out that if the Legislature wanted to have a time limit on the condition precedent in § 627.736(6)(g) that they would have put one in the Statute, this Court finds the Plaintiff’s arguments pursuant to Amador and Central Florida Chiropractic Care more persuasive. The Defendant’s argued interpretation of the Statute would allow the Defendant to fail to comply with §627.736(4)(b) and § 627.736(4)(i) and extend the investigative period to any arbitrary time period. Under this interpretation, the condition precedent would give the Defendant no time limitation to request an EUO and that the Plaintiff would be unable to receive benefits until requested. What if the Defendant never requested the EUO, does that mean the that the Plaintiff could never receive benefits?1 This Court finds that was clearly not the legislative intent and that reading § 627.736(6)(g) by itself and not in harmony with the other sections of the Statute leads to a result in contradiction of the legislative intent and that negates one section of a statute in favor of another without the express language to do so.
Both Amador and Rodriguez were decided before the current statute went into effect in 2014. But when reviewing Amador, it is clear that the statutory revision did not change the well-established principle that the legislative intent of the Florida PIP Statute is swift and virtually automatic payment to the insured. (Emphasis added) Nunez v. Geico General Insurance Company, 117 So.3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a] citing to Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2011 [35 Fla. L. Weekly S640a]).2 Utilizing that logic, the Court in Amador held that an insurer could not use its investigative right to request an EUO to toll the thirty-day time limit provided for in subsection (4)(b) and that failure to complete that investigation within thirty days and not pay the bills would be in violation of the statute. The Statute is consistent with that intent as well, the Claimant must provide the bills within a time limit, must seek treatment within a time limit, and that the Insurer must, after receiving the bills, quickly and swiftly review the file and decide whether they are going to pay the claim or deny it within a time limit, or they must request additional time. The sections when read in union with one another effectuate the legislative purpose.
Florida Statute § 627.736(6)(g) must be read in conjunction with the other statutory provisions. “[A]ll parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related provisions in harmony with one another.” Forsyth v. Longboat Key Beach Erosion Control Dist., 604 So 2d 452 (Fla. 1992); Fleischman v. Department of Professional Regulation, 441 So.2d 1121, 1123 (Fla. 3d DCA 1983) (“Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.”)
The 9th Circuit Court of Appeals in Geico Indemnity Co. v. Central Florida Chiropractic Care, addressed these exact sections of the Statute and the application thereof, with similar facts to the instant case. The Court found “the trial court’s determination not to read section 627.736(6)(g), Florida Statutes (2014) “in a vacuum” but to consider it along with section 627.736(4)(b) and section 627.736(4)(i) is consistent with Forsythe, as it gives full effect to all three statutory provisions. Moreover, the trial court’s determination does not negate the effect of section 627.736(4)(b)6.” See, Geico Indemnity Co. v. Central Florida Chiropractic Care, 26 Fla. L. Weekly Supp. 613a (Fla. 9th Judicial Circuit May 17, 2017).
The reading of § 627.736(6)(g) in harmony with §627.736(4)(b) and § 627.736(4)(i) does not prevent the Defendant from litigating the case, it only gives a deadline for the use of an investigative tool that without said deadline prevents the case from moving forward to resolution. The Legislature, under § 627.736(4)(b)6, specifically carved out an exception to Florida Statute § 627.736(4)(b)’s deadline, which states “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.” This section refers back to the thirty-day period in §627.736(4)(b).
The Court finds that §627.736(6)(g) must be read in conjunction with §627.736(4)(b) and § 627.736(4)(i), otherwise the Defendant could arbitrary extend the investigative time period beyond the thirty days that remains a part of §627.736(4)(b) and would negate the need for extension of time § 627.736(4)(i).
Therefore, the Court agrees with the Plaintiff’s argument that the Defendant’s Affirmative defense “that Shomlit Newstat or any assignee of Shomlit Newstat is not entitled to recovery in this action as Shomlit Newstat failed to comply with the conditions precedent of the subject policy of insurance by failing to submit to an Examination Under Oath (EUO) prior to the filing of the instant action,” is in violation of the Florida PIP Statute, as the request was untimely, and thus as a matter of law is an invalid affirmative defense.
It is therefore ORDERED AND ADJUDGED:
That Plaintiff’s Motion for Partial Summary Judgment is hereby Granted.
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1The Court agrees that Florida Statute § 627.736(6)(g) does state that the insurer must have a reasonable basis to request it but it does not negate the fact that the condition precedent read alone does not require the request within a time period, thus if you never request it then, as written, the Plaintiff can never seek benefits.
2Although the Court is aware that Nunez v. Geico General Insurance Company, 117 So.3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a] was prior the Statute Revision, it does not change the overall underlying intent of the Statute.
