27 Fla. L. Weekly Supp. 291a
Online Reference: FLWSUPP 2703MONKInsurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Failure to attend — EUO notice sent to insured’s attorney constitutes effective notice to insured — Neither PIP statute nor policy requires insurer to give insured multiple opportunities to attend EUO — No merit to argument that EUO scheduled more than thirty days after notice of loss was per se unreasonable where thirty-day period for investigation and payment of claim does not begin until insurer has received both notice of fact of loss and notice of amount of loss, and insurer did not receive medical provider’s first bill providing notice of amount of loss until two months after insured had already failed to attend EUO
ADVANTACARE OF FLORIDA, LLC a/a/o Terry Monk, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017 22785 CONS, Division 73 (MILLER). February 22, 2019. A. Christian Miller, Judge. Counsel: Brooke Boltz, Boltz Legal, Oviedo, for Plaintiff. Benjamin R. Floyd and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
FINAL SUMMARY DISPOSITIONIN FAVOR OF DEFENDANT
This matter is before the court on the Defendant’s Motion for Summary Judgment1 with Memorandum of Law Regarding Failure to Attend an EUO (Docket # 17). The court has reviewed the Defendant’s motion, the Plaintiff’s response and cross-motion for partial summary judgment on the same issue (Docket # 51), and it has conducted a hearing on the motions on December 5, 2018 where the court heard and considered the arguments of both counsel. Having done so, the court finds as follows:
1. Advantacare of Florida, LLC (“Plaintiff’) is suing Progressive Select Insurance Company (“Defendant”) and alleges it is due unpaid PIP benefits resulting from treatment provided to Plaintiff’s assignor Terry Monk (“Assignor”) stemming from a car crash on August 30, 2016.
2. Defendant received notice of the accident on September 2, 2016. (Def. Ans. Interrog. ¶ 1, Doc. 48.)
3. Between September 6, 2016 and October 14, 2016, Defendant tried unsuccessfully to contact Assignor2 by phone seven times. (Fredericks Dep. 21:2-17, July 25, 2018, Doc. 38.)
4. On September 21, 2016, Defendant received a letter from Attorney Steven Earle of Morgan and Morgan advising that he represented Assignor. (Fredericks Dep. 57:8-11.)
5. Each time Defendant left a message for the Assignor or Attorney Earle, but each time its message went unreturned. (Fredericks Dep. 57:8-11.)
6. Defendant also sent a letter to the Assignor on September 9, 2016 requesting he contact them about the accident. (Fredericks Dep. 51:19-25, 52:1-5)
7. Thereafter, in a letter sent to Attorney Earle on October 18, 2016, Defendant requested the Assignor submit to an examination under oath (“EUO”). (Fredericks Dep. 17:24-25, 18:1-8.)
8. The EUO request was predicated upon language in the Defendant’s policy which reads as follows,
A person seeking coverage must: . . . (3) allow us to take signed and recorded statements, including sworn statements and examinations under oath, which we may conduct outside the presence of you or any other person claiming coverage, and answer all reasonable questions we may ask and provide any documents, records, or other tangible items that we request, when, where, and as often as we may reasonably request.
(Amd. Aff. Ryan Fredericks, Ex. A, ¶ 33, Doc. 20.)
9. The EUO was scheduled to occur on November 2, 2016. (Fredericks Dep. 23:1-5.)
10. This letter was received and signed for by Attorney Earle’s office on October 19, 2016 at 9:47 a.m., according to the FedEx tracking information. (Fredericks Dep. 18:21-25, 19:1-17.)
11. The EUO letter apparently prompted an employee from Attorney Earle’s office to contact Defendant on October 21, 2016 and request that Defendant setup a statement in lieu of the scheduled EUO. (Fredericks Dep. 21:24-25, 22:1-9.)
12. Then Attorney Earle’s office contacted Defendant three days before the scheduled EUO to again ask if a statement could be scheduled in lieu of an EUO. (Fredericks Dep. 22:11-18.)
13. At that time, Defendant informed Attorney Earle’s office that unless the statement could be scheduled prior to the EUO, the EUO would not be cancelled. (Fredericks Dep. 22:11-18.)
14. Defendant did not hear back from Attorney Earle’s office, and the Assignor failed to appear for the EUO on November 2, 2016. (Fredericks Dep. 22:11-18.)
15. Thereafter, Defendant denied further payments of benefits based upon the above. (Fredericks Dep. 17:20-23.)
16. Plaintiff treated Assignor from December 16, 2016 to December 7, 2017. (Fredericks Dep. 28:18-24.)
17. Defendant received Plaintiff’s first bill on January 9, 2017. (Fredericks Dep. 29:5-12.)
18. Defendant similarly denied Plaintiff’s bills due to the Assignor’s failure to appear at the EUO as described above. (Fredericks Dep. 22:11-18.)
Analysis and Conclusions of Law
19. Plaintiff raises essentially three arguments why summary disposition should not be granted in Defendant’s favor on this issue: (1) Defendant has not proven that Assignor had actual notice of the EUO, (2) Defendant was unreasonable in only setting the EUO once and not giving the Assignor an additional opportunity to appear at an EUO, and (3) Defendant’s request for an EUO on October 18, 2016 was unreasonable because it occurred more than 30 days after it was put on notice of the loss, in reliance on Amador3.
20. As to its first ground, Plaintiff argues that because the Defendant sent the EUO notice to the Assignor’s attorney, instead of directly to the Assignor personally, that the Defendant has failed to establish that Assignor had actual notice of the EUO, and thus his failure to appear was not willful or intentional.
21. As the Fifth DCA noted in Gay v. Association Casualty Insurance Company, “Florida Law is quite clear that notice to one’s agent is notice to the principal. That is true in the context of insurance.” 103 So.3d 1028, 1031 (2012) [38 Fla. L. Weekly D74d].
22. Moreover, Florida law further recognizes that attorneys are generally considered agents for their clients, and the attorney’s acts are the acts of the principal/client. See Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A., 537 So.2d 1134 (Fla. 3d DCA 1989).
23. Thus, when Defendant sent notice of the EUO to Assignor’s attorney, that notice was effective as against the Assignor because the attorney was acting as the Assignor’s agent.
24. Based upon the foregoing, the court finds Plaintiff’s first argument unpersuasive.
25. Plaintiff’s second ground advances that the Defendant was unreasonable in giving the Assignor only one chance to sit for an EUO.
26. As a starting point, the court notes that the Florida Legislature amended the PIP statute in 2012 to expressly provide that an EUO was a condition precedent to receiving PIP benefits. See Nunez v. Geico Gen. Ins. Co., 117 So.3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a] (holding the 2012 amendment regarding EUO’s as a condition precedent was a substantive change and not just a legislative clarification, and thus was not retroactive in application).
27. As applicable to this case, the relevant portion of the PIP statute now reads as follows:
6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES. —
. . .
(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. ██████ [sic]
Florida Statute § 627.736(6)(b) (emphasis added).
28. Nothing in the above statute requires the Defendant to allow the Assignor a second chance to sit for a missed EUO.
29. Moreover, the record in this case is pretty clear that Defendant tried to give the Assignor multiple opportuniti to provide the additional information before it even scheduled the EUO.
30. Furthermore, nothing in the relevant policy language requires the Defendant to provide the Assignor a second chance to attend an EUO. To the contrary, the language allows the Defendant to determine when, where and how often they want to reasonably request an EUO from a person seeking coverage.
31. The court notes that Plaintiff is not challenging the reasonableness of the Defendant’s request for an EUO, other than as argued in its third ground, which is discussed below.
32. The court finds that the Defendant was not unreasonable as a matter of law in failing to schedule a second EUO, especially in light of the prolonged lack of cooperation it received from the Assignor and his counsel, Attorney Earle.
33. Regarding the third argument advanced by the Plaintiff, it submits that the Defendant’s request for an EUO was unreasonable as a matter of law based upon the holding announced in Amador.
34. In Amador, the Third DCA held that an insurer’s request for an EUO after the 30-day statutory “investigatory” period established by § 627.736(4)(b) was per se unreasonable because the burden is on the insurer to authenticate the claim within the statutory time period. 748 So.2d at 308-09.
35. First, the court notes that as discussed above, the Florida Legislature has changed the PIP statute since the Amador decision was rendered in 1999 to explicitly state that submitting to an EUO is a condition precedent to recovery of PIP benefits.
36. Second, one of the key facts in Amador does not exist in this case.
37. In Amador, the insurer requested the EUO’s of the appellants more than 30 days after receiving the appellants’ claims for PIP benefits. Id. at 308 (noting “the record evidence in the instant case shows that [the insurer] received notice of [the first insured’s] claim for PIP benefits on April 28, 1997 and did not request an examination under oath until June 18, 1997. Similarly, [the insurer] received [the second insured’s] notice of claim on March 24, 1997 but, did not request an examination under oath until June 25, 1997.”)
38. However, in this case, the Plaintiff did not even begin treating the Assignor until December, 16, 2016 and Defendant did not receive Plaintiff’s first bill until January 9, 2017. (Fredericks Dep. 28:18-24, 29:5-12.)
39. As Florida Statute § 627.736(4)(b) indicates, the benefits are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
40. This thirty day period is thus triggered by the insurer being in possession of both pieces of information — written notice of the fact of a covered loss and the amount of the covered loss.
41. Here, Defendant was not provided with information about the amount of the Plaintiff’s claim of a covered loss until January 9, 2017, more than two months after the Assignor had already failed to appear for the EUO.
42. Thus the holding in Amador is inapplicable here.
WHEREFORE it is ORDERED AND ADJUDGED as follows:
A. Defendant’s Motion for Summary Judgement with Memorandum of Law Regarding Failure to Attend an EUO is GRANTED.
B. Plaintiff’s Cross-Motion for Partial Summary Disposition is DENIED.
C. Plaintiff shall take nothing by this action and Defendant shall go hence without day.
D. The court reserves jurisdiction to determine entitlement to fees and costs.
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1This case is governed by the Florida Small Claims Rules, and thus the Court will treat the motion as one for summary disposition under Fla. Sm. Cl. R. 7.135.
2After receiving the letter of representation from Attorney Earle referenced in paragraph 4, it appears Defendant redirected its efforts to contact Assignor to go through his attorney.
3Amador v. United Auto Ins. Co., 748 So.2d 307 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2437a].