18 Fla. L. Weekly Supp. 146a
Online Reference: FLWSUPP 1802MARQ
Insurance — Personal injury protection — Appeals — Motion to recall mandate is granted where motion was filed within same term opinion was issued — Examination under oath — Failure to attend — No error in finding that insured did not unreasonably refuse to attend EUO where, although insured was represented by counsel, insurer provided EUO notice to insured and partial EUO notice faxed to counsel was defective for failing to state consequences of nonattendance — Trial court erred in striking peer review because it was not obtained before suit was filed and was not based on independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ELITE HEALTH & REHABILITATION CENTER, a/a/o JOHANNA MARQUEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-189 AP. L.T. Case No. 07-23749 CC 2. October 22, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Andrew Hague, Judge. Counsel: Thomas L. Hunker, Assistant General Counsel, Office of the General Counsel of United Automobile Insurance Company, for Appellate. Todd Landau, Todd Landau, P.A., for Appellee.
(Before FRIEDMAN, COHEN LANDO and THOMAS, JJ.)
(PER CURIAM.) On August 24, 2010, Appellant United Automobile Insurance Company/United Automobile received a fax from Appellate Clerk Mary Gould of the Eleventh Judicial Circuit. The fax consisted of an appellate mandate in conjunction with an appellate order1/opinion, affirming the judgment rendered by the trial court in Elite Health & Rehab Center, a/a/o Johanna Marquez v. United Automobile Insurance Company, Case No. 07-23749 CC 25. The Appellate Court rendered an appellate order/opinion affirming the trial court’s decision on July 21, 2010, and the mandate was entered on August 19, 2010. Appellant United Automobile contends that it did not receive a copy of the July 21st appellate opinion or the August 19th mandate until it was faxed, via the Appellate Clerk’s Office, on August 24th. Appellant further contends that the failure to timely receive a copy of the opinion before the Court issued its mandate, interfered with its ability to file a motion for rehearing or clarification pursuant to Florida Rule of Appellate Procedure 9.3302, if it found the need to do so. As Appellant as also discovered that the Appellate Court has inadvertently neglected to address one of the issues raised on review in its July 21st opinion, United Automobile maintains that the Court should recall its mandate, vacate the appellate order/opinion that has been issued, rehear/reexamine the issues previously presented, and, issue a new opinion.
This Appellate Court has jurisdiction to recall a mandate, if the motion to recall is filed within the term during which the opinion was issued. See State Farm Mutual Automobile Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980, 983 (Fla. 1981); Owens v State, 444 So. 2d 951, 952 (Fla. 2d DCA 1984). When a mandate is issued without a copy of the court’s opinion having been sent to a party, the appellate court can grant a motion to withdraw the mandate and republish the opinion. McGregor v. Hammock, 154 So. 2d 191, 191-192 (Fla. 1934); Gardner v. State, 375 So. 2d 2, 2-3 (Fla. 4th DCA 1979). This Court issued its mandate on August 19, 2010. The Appellant filed its motion to recall the mandate on August 25, 2010. Both the mandate and the Appellant’s motion to recall the mandate were filed in the Eleventh Judicial Circuit’s spring term of court, i.e., the second Tuesday in May to the second Monday in November, (See §§ 26.21 and 26.32, Fla. Stat. (2010)), therefore, this Appellate Court finds that the Appellant’s motion to recall the mandate was timely, and thus, will recall the mandate and republish the opinion.
In conjunction with recalling the mandate, the Appellant has also asked this Court to reexamine the issues presented in its appellate brief. Appellant United Automobile states that in its initial brief it presented two issues for appellate review: 1) whether Appellee Elite Health and Rehabilitation Center’s motion for summary judgment based on an EUO “no show” defense should have been granted by the trial court; and, 2) whether the trial court erred when it struck Appellant United Automobile’s peer review report, which was submitted as evidence to defend against Appellee’s summary judgment motion, addressing the insurer’s failure to provide payment for treatment rendered that was reasonable, related, and necessary.
After reviewing the appellate briefs and the prior appellate opinion issued, this Appellate Court has found that the trial court correctly granted Appellee Elite Health and Rehabilitation Center’s motion for summary judgment based on an Examination Under Oath (EUO) “no show” defense. The trial court determined that United Automobile’s failure to provide assignee Johanna Marquez’ attorney with full notice regarding pre scheduled EUO dates, and the consequences or penalties for Ms. Marquez’ failure to attend an EUO, resulted in error on behalf of Appellant.
Appellant United Automobile argued that it sent full notice to assignee Marquez of the prescheduled dates for her EUO, as well as the consequences for failing to attend an EUO. Thus, she could have informed her attorney of the prescheduled dates and consequences for not attending an EUO. Furthermore, Appellant United Automobile’s alternative contention that the partial notice (information regarding the dates that had been scheduled for Ms. Marquez’ EUO, but not the consequences for failing to attend the EUO) it sent to assignee’s attorney via fax was sufficient to place the attorney on notice. Given his experience in PIP litigation, which was sure to include knowledge of EUO attendance as a condition precedent, assignee Marquez’ attorney was on notice that the failure of Ms. Marquez to attend an EUO would result in the denial of benefits under the PIP policy. This argument fails.
This Appellate Court finds that the fact that Appellant United Automobile provided assignee, in their words, “with full notice of the prescheduled EUO dates and the consequences for failing to attend an EUO”, does not serve as a substitute for notice to Ms. Marquez’ attorney, whose responsibility it is to advise her, as the assignee, of her legal duties under the insurance policy. Where an insurer has been sent express notice that the insured is represented by counsel, and counsel has specifically requested that notice of any action taken by the insurer be provided, the insurer must provide counsel notice. See NDNC Neurological Treatment Centers, Inc. a/a/o Madalyn Roberts v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 982a (Fla. 17th Cir. Ct. March 9, 2009); Miami Chiropractic Associates, Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 1104b (Fla. 17th Cir. Ct. July 28, 2005); The Premier Center for Personal Injuries v. United Automobile Insurance Company, 10 Fla. L. Weekly Supp. 729a (Fla. 11th Cir. Ct. March 18, 2002); American Skyhawk Insurance Company v. Barbara Chacon, 8 Fla. L. Weekly Supp. 593b (Fla. 11th Cir. Ct. July 24, 2001) (once an attorney is involved in a case, there is a strong public policy in favor of requiring insurers to communicate through the designated legal representative).
Furthermore, it is not the responsibility of counsel to extrapolate from notice sent by an appellant all of the terms, conditions and obligations that may apply to an assignee’s responsibility under the insurance policy with regard to EUO attendance. Thus, Appellant United Automobile Insurance Company’s failure to provide assignee Marquez’ attorney with both the dates of the prescheduled EUO as well as the consequences for assignee’s failure to attend an EUO in the notice forwarded via facsimile, made the notice defective in nature, and therefore, ineffective.
Once notice is received by an insurance company from an attorney representing an assignee/insured, the insurer should only communicate with the assignee’s attorney. NDNC Neurological Treatment Centers, Inc. a/a/o Madalyn Roberts, 16 Fla. L. Weekly Supp. at 982a; American Skyhawk Insurance Company, 8 Fla. L. Weekly Supp. at 593b. The trial court did not err in finding that Appellant United Automobile failed to provide notice to assignee Marquez’ attorney, concerning her responsibilities with regard to EUO attendance under her PIP insurance policy. Id. Therefore, the trial court correctly determined that, based on a lack of notice provided to Ms. Marquez’ attorney, she did not unreasonably refuse to attend the prescheduled EUO. Id.
Review of the appellate briefs and prior appellate order/opinion also revealed that the lower tribunal struck the peer review because it was untimely — it had not been obtained before the cause of action had been filed. In addition, the conclusions proffered in the peer review were not based on an Independent Medical Examination (IME). This Court has found that Appellee Elite Health Rehabilitation Center has correctly conceded error with regard to the peer review issues. The Court recognizes that a medical report may be filed by an insurer in support of its denial of personal injury benefits at any time, even if the report is obtained well after an insurance company has denied benefits and/or an action for breach of an insurance contract has been filed. United Automobile Ins. Co. v. Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a].
Further, a medical report used by an insurer to defend against payment of treatment that is alleged to be reasonable, related and necessary need not be based on an IME. Partners In Health a/a/o Necoles Lebrun v. United Automobile Ins. Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. Therefore, Court finds that it must grant Appellant United Automobile’s motion for rehearing, and in doing so, vacate its previous appellate opinion.
Therefore, this Appellate Court GRANTS Appellant United Automobile’s motion to recall the mandate, vacate the existing appellate opinion affirming the judgment rendered by the trial court, and the request for rehearing. Accordingly, the mandate and accompanying appellate order/opinion issued on August 19, 2010, is recalled and vacated. After reexamination, this Appellate Court AFFIRMS the lower tribunal’s order in part, and REVERSES it in part. Furthermore, this Court REMANDS this matter with directions that the lower court consider the peer review report submitted by the Appellant United Automobile Insurance Company as summary judgment evidence, and conduct any other proceedings necessary to be consistent with this opinion.
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1The order to which Appellant United Automobile refers is in actuality a circuit court appellate opinion.
2Rehearing; Clarification; Certification.
