28 Fla. L. Weekly Supp. 85a
Online Reference: FLWSUPP 2801PIERInsurance — Personal injury protection — Coverage — Medical expenses — Condition precedent — Examination under oath — Where both PIP statute and policy provide that EUO is condition precedent to receipt of benefits and insured failed to appear at three scheduled EUOs, medical provider is not entitled to PIP benefits — Insurer that scheduled EUOs to occur more than thirty days after receipt of provider’s bills did not thereby waive right to notice EUO — Further, where PIP policy contains “no action clause” that states that lawsuit against insurer is precluded until insured fully complies with all provisions of policy, policy bars suit until EUO requirement is met
OCEANS BREEZE CHIROPRACTIC OF PLANTATION (a/a/o Jonathan Pierre) , Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE-19-009260. February 20, 2020. Phoebee R. Francois, Judge. Counsel: Michael Cohen, Cohen Legal Group, P.A., Fort Lauderdale, for Plaintiff. Kristina Davis Forst, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT BASED ON CLAIMANT’SFAILURE TO COMPLY WITH A CONDITION PRECEDENTAND ATTEND EXAMINATIONS UNDER OATH
THIS CAUSE having come before the Court on February 3, 2020 for a hearing on Defendant’s Motion for Final Summary Judgment Based on Mr. Jonathan Pierre’s Failure to Comply with a Condition Precedent and Attend Examinations Under Oath and the Court having reviewed the entire Court file, the relevant legal authority, the affidavits, evidence, pleadings and having heard argument of counsel for the parties, the Court hereby finds as follows:
ANALYSIS AND FINDINGS OF FACT
1. Ocean Breeze Chiropractic of Plantation (hereinafter the Plaintiff) as an assignee of Jonathan Pierre (hereinafter Mr. Pierre), 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. Mr. Pierre was involved in a motor vehicle accident and made a claim for injuries sustained on March 11, 2018. He received treatment from the Plaintiff from March 20, 2018 through September 14, 2018.
2. The Defendant, through its counsel, requested in writing that Mr. Pierre submit to a EUO on three (3) separate occasions: August 8, 2018, September 5, 2018 and October 4, 2018. For each EUO appointment, a letter requesting that Mr. Pierre submit to the EUO was sent to his counsel, Mr. Geoff Pelosi.
3. The Defendant did not pay all of the Plaintiff’s bills and this action was filed on July 9, 2019.
4. Plaintiff is not entitled to any recovery under the subject policy of insurance where its alleged assignor, Jonathan Pierre, failed to comply with a condition precedent thereby breaching the subject policy of insurance. Pursuant to Florida Statute 627.736 (6)(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.
5. 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 Christa Reinwall.
6. The Plaintiff did not present any conflicting evidence to show that Mr. Pierre did not receive notice. As such, this Court finds that Mr. Pierre received proper notice for the Examinations Under Oath.
7. Where the facts are such that, if established there could be no recovery, or where the undisputed facts are such as would preclude recovery, then the question becomes one of law for determination by the Court and a proper matter for disposition by Summary Judgment. See Florida Bar v. Greene, 926 So.2d 1195 (Fla. 2006) [31 Fla. L. Weekly S171a]; see also Yost v. Miami Transit Company, 66 So.2d 214 (Fla. 1953).
8. 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 Mr. Pierre’s failure to attend the EUO, Insurers are barred from denying the bills that occurred prior to failure to attend the Examination Under Oath if 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.
9. 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, 2018. Specifically sub-section (6)(g) was added, and reads:
a. (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 (emphasis added).
10. 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.
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 policy also incorporates a no action clause “LEGAL ACTION AGAINST US” “Legal action may not be brought against us until there has been full compliance with all provisions of the policy”.
11. 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], “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.”
12. 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]. However, the Amador court dealt with a different version of §627.736 of Florida Statutes than the 2018 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”.
13. 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 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.
14. The Florida Supreme Court in United Automobile Ins. Co., v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a] puts 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).
15. 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 finds that 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 must first look 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.
16. 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.
17. 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).
18. 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].
19. 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 that bills which pre-date the EUO should be paid is inconsistent with 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).
20. 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 a EUO to occur more than thirty days after receipt of the provider’s bills did not waive the right to notice the EUO.
21. In Fidel S. Goldson D.C. P.A. a/a/o Cecilia Williams-Brown, Plaintiff, v. State Farm Mut. Auto. Inc. Co. 27 Fla. L. Weekly Supp. 418a (Broward Cty. Ct. June 1, 2009) (Hon. Fry) the court held 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. 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 to Mr. Pierre. As he failed to appear, he failed to satisfy and comply with a condition precedent and is not entitled to benefits. 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.
22. This court agrees with the Eleventh Judicial Circuit in its appellate capacity in Caribbean Rehabilitation Center, Inc., a/a/o Reynier Cordoves v. State Farm Mutual Automobile Insurance Company, 2017-000217-AP-01 and its sister court in Fidel S. Goldson D.C. P.A. a/a/o Cecilia Williams-Brown, Plaintiff, v. State Farm Mut. Auto. Inc. Co. 27 Fla. L. Weekly Supp. 418a (Broward Cty. Ct. June 1, 2009) (Hon. Fry).
Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
