19 Fla. L. Weekly Supp. 489a
Online Reference: FLWSUPP 1906MGONInsurance — Personal injury protection — Examination under oath — Failure to attend EUO is condition subsequent to payment of PIP benefits that may be raised as affirmative defense — Insurer waived ability to assert EUO no-show defense where EUOs requested were outside thirty-day period during which attendance is mandatory
C.Y. REHABILITATION, INC., a/a/o MARILIN GONZALEZ, Plaintiff, vs. INFINITY INSURANCE COMPANY, Defendant. County Court, 11the Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-20156 SP 25 (02). February 22, 2012. Honorable Don S. Cohn, Judge. Counsel: Lina Husseini, Law Offices of Corredor & Husseini, P.A., Miami, for Plaintiff. Gloria Blasucci, Bronstein & Carmona, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARYJUDGMENT REGARDING ATTENDANCEAT EXAMINATIONS UNDER OATH
THIS CAUSE came before the Court on December 12, 2011, upon Plaintiff’s Motion for Summary Judgment regarding Attendance at Examinations Under Oath. Present before the Court appeared counsel for the Defendant, Gloria Blasucci, Esquire, and counsel for the Plaintiff, Lina Husseini, Esquire. Having considered the parties’ motions, argument of counsels, and all relevant authority, and being otherwise fully advised, the Court finds as follows:
This Court finds, based upon the rationale and ruling in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a] and successive binding Eleventh Circuit Appellate opinions, that failure to attend an Examination Under Oath is a condition subsequent to the payment of Personal Injury Protection Benefits. This condition subsequent may be raised in the context of an affirmative defense with all of the attendant burdens of proof establishing the same.
This Court further finds that the Defendant has waived its ability to assert the defense of Examination Under Oath nonattendance in the instant claim as the Examinations Under Oath requested were outside of the relevant thirty (30) day period where attendance is mandated.
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment regarding Attendance at Examination Under Oath is GRANTED.
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