County
Civil Court: INSURANCE – examination under oath – trial
court erred in granting insurer summary judgment when EOU request was made
after complaint was filed – insured entitled to pursue cause of action since
insurer did not pay submitted claim within 30-day period – summary judgment
reversed. Afield v. Progressive Express Ins. Co., Appeal No.
04-0045AP-88B (Fla. 6th Cir. App. Ct. Sept. 21, 2005).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL
CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION
WALTER E. AFIELD, M.D., P.A., D/B/A
NEUROPSYCHIATRIC INSTITUTE AND PAIN
REHABILITATION INSTITUTE/CYPRESS MEDICAL
GROUP, (ASSIGNOR: HOOVER, CHRISTINA)
Appellants,
vs.
Appeal No.04-0045AP-88B
UCN522004AP000045XXXXCV
PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Appellee.
____________________________________/
Appeal
from Final Summary Judgment
Pinellas County Court
Judge Myra Scott McNary
Allison M. Perry, Esquire
Attorney for Appellant
Valerie Hendricks, Esquire
Attorney for Appellee
ORDER
AND OPINION
THIS CAUSE came before the Court on appeal,
filed by Walter E. Afield, M.D., P.A., et. al. (Afield), from the Final Summary
Judgment, entered April 27, 2004, in favor of Progressive Express Insurance
Company (Progressive). Upon review of
the briefs, the record and being otherwise fully advised, the Court reverses
the trial court’s ruling as set forth below.
The
undisputed facts are that Afield is a medical doctor who provided treatment to Christina
Hoover for injuries she received in an automobile accident on October 15, 2002. Ms. Hoover, who was covered under an
insurance policy issued by Progressive, assigned her rights and benefits to
Afield. On June 12, 2003, Afield filed a complaint
against State Farm alleging that State Farm failed to fully pay, within thirty
days of notification, for charges related to reasonable and necessary medical
services rendered to Ms. Hoover. On August
2, 2003, State Farm notified Ms. Hoover, via certified mail, that State Farm
had scheduled an Examination Under Oath (EUO), on September 25, 2003. Ms.
Hoover failed to appear for the EUO. State
Farm moved for summary judgment arguing that Ms. Hoover’s failure to appear for
the EUO was a material breach of the insurance contract and precluded Ms.
Hoover, or Afield as her assignee, from recovery under the policy. The trial court agreed with Progressive and
granted summary judgment per Goldman v. State Farm Fire General Ins. Co.,
660 So.2d 300 (Fla. 4th DCA 1995).
On
appeal, Afield argues that the reversal of the summary judgment is required as
Ms. Hoover’s failure to appear at an EUO scheduled by Progressive post-suit
cannot extinguish Afield’s right to recover for medical services. In the alternative, Afield argues that
summary judgment was improper since there remain genuine issues of material
fact. Progressive responds that there
are no genuine issues of material fact and case law supports summary judgment
for Ms. Hoover’s failure to appear at the EUO.
In
reviewing these issues de novo, the Court initially finds that Afield, as the
assignee, has no greater rights against Progressive than those held by Ms.
Hoover, as the assignor. See Alderman
Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d
22, 24 (Fla. 2d DCA 1979). An insured’s
failure to submit to an EUO is a willful and material breach of the insurance
contract that precludes the insured from recovery under the policy. See Stringer v. Fireman’s Fund Ins.
Co.m 622 So.2d 145, 147 (Fla. 3d DCA 1993), rev. denied, 630 So.2d 1101 (Fla. 1993). However, in order for the EUO to be a
condition precedent to filing suit, the insurer must make the request before
suit is filed. See Willis v.
Huff, 736 So.2d 1272, 1274 (Fla. 4th DCA 1999). The insured, or assignee, is entitled to file
suit once the claim becomes overdue, on the 31st day after the insurer received
notice of the claim. United
Automobile Ins. Co. v. Rodriquez, 808 So.2d 82, 87 (Fla. 2002); Amador
v. United Automobile Ins. Co., 748 So.2d 307, 308 (Fla. 3d DCA 1999), rev. denied, 767 So.2d 464 (2000); January
v. State Farm Mutual Ins. Co., 838 So.2d 604, 607 (Fla. 5th DCA 2003).
The
Court finds, as a matter of law, that the trial court’s reliance on Goldman
in granting summary judgment is misplaced since the insured in Goldman
failed to comply with the insurer’s pre-suit EUO request and then filed
suit. See Goldman, 660
So.2d at 301. The facts of this case are
similar to those in Willis in which the Fourth District Court of Appeal
distinguished between an EUO request made before and after suit is filed. See Willis, 736 So.2d
1274. In Willis, the Fourth
District found that the subject insurance policy contained a provision
requiring, as a condition precedent to filing suit, an insured submit to an EUO
upon request, similar to the
policy in Goldman. See id.
(emphasis original). The accident in Willis
occurred on April 15, 1995, and the insured filed suit on August 29, 1997. However, unlike Goldman, it wasn’t
until after suit was filed that the insurer requested the insured submit to an
EUO. The Fourth District concluded that,
in order to be a condition precedent, the EUO must be requested before suit is
filed. See id.
The
rationale of Willis applies to the case at bar. As set forth above, Ms. Hoover
was involved in an accident on
October 15, 2002, and, on June 12, 2003, Afield filed his complaint against
Progressive. It wasn’t until after suit
was filed, on August 2, 2003, that Progressive requested Ms. Hoover to submit to an EUO. Hence, since the EUO request came after the
complaint was filed, Afield was entitled to pursue his cause of action since
Progressive did not pay the submitted claim within the 30-day period. See id.; see also January,
838 So.2d at 607.
The
Court finds that Ms. Hoover has a contractual obligation to submit to an EUO
request pursuant to Progressive’s right to investigate the claim.[1] See Rodriguez, 808 So.2d at 87;
January, 838 So.2d at 607; United
Automobile Ins. Co. v. North Dade Medical & Wellness, Inc., 11 Fla. L.
Weekly Supp. 971 (Fla. 17th Cir. Ct. June 14, 2004)(finding insurer is not
barred from investigating and contesting claims after 30-day deadline, but is
subject to statutory penalties for denying reasonable and valid claims); compare
with Humanitary Health Care, Inc. v. United Autombile Ins. Co., 12
Fla. L. Weekly Supp. 531 (Fla. 11th Cir. Ct. March 8, 2005)(holding that
insurer cannot defend claim on basis of insured’s failure to attend EUO outside
30-day statutory period after submission of medical bills).
However,
while Progressive is not barred from investigating the claim, the Court finds
that Ms. Hoover’s noncompliance with an EUO request as an investigative tool is
not fatal to Afield’s claim. See January,
838 So.2d at 608 (explaining that there was no arguable breach of contract by
the insured prior to the scheduled EUO that would excuse payment of the claim
once coverage is established). As
analyzed in January:
So what is the effect of January’s refusal to be
examined? We have no basis to gainsay
the lower court’s conclusion that this was a material breach of the policy and
would bar recovery for any claim that was not thirty days old when the policy
was breached by January’s refusal to comply with State Farm’s request. Certainly, by May 3, 1999, January’s letter
to State Farm clearly communicated his refusal to comply with the request. Whether this breach of the policy occurred as
early as the March 23 non-appearance is a question that may or may not matter
and may or may not require judicial determination based on the surrounding
facts and circumstances.
The
Court finds that, at a minimum, a doubt remains as to whether Ms. Hoover’s
failure to submit to the EUO warrants denial of Afield’s right to recover PIP
benefits which precluded the entry of summary judgment in favor of Progressive. See e.g. Hervey v. Alfonso,
650 So.2d 644, 646 (Fla. 2d DCA 1995)(emphasizing that “if the record reflects
the existence of any genuine issue of material fact or the possibility of any
issue, or if the record raises even the slightest doubt that an issue might
exist, that doubt must be
resolved against the moving party and summary judgment must be denied”).
Therefore,
it is,
ORDERED AND ADJUDGED that the Final Summary
Judgment is reversed and this cause is remanded for action consistent with this
Order and Opinion. It is further,
ORDERED AND ADJUDGED that the Appellant’s
Motion for an Award of Appellate Attorney’s Fees is granted contingent upon the
Appellant ultimately prevailing in the proceedings below. The trial court shall determine the amount of
reasonable appellate attorney’s fees to be awarded.
DONE AND ORDERED in Chambers, at St.
Petersburg, Pinellas County, Florida this ______ of September 2005.
___________________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
Copies furnished
to:
Judge Myra Scott
McNary
Allison M. Perry,
Esquire
Post Office Box
10678
Tampa, FL 33679-0678
Valerie Hendricks,
Esquire
100 North Tampa
Street, Suite 2950
Tampa, FL 33602
Davis & Harmon, P.A.
110 North 11th Street, 2nd Floor
Tampa, FL 33602
[1] The Court notes that Progressive unilaterally scheduled an EUO and provided notice of the EUO, via certified mail, to Ms. Hoover. There is nothing in the record to explain Ms. Hoover’s failure to appear for the EUO and counsel for Afield stated at the summary judgment hearing that his client’s attempts to contact Ms. Hoover were unsuccessful.