Third DCA
Infinity Auto Insurance Company v. Miami Open MRI, LLC
3d DCA
6/7/23, Judge Lobree
Topics: Examinations Under Oath, Summary Judgment Standard
While I do not summarize every PIP (personal injury protection) appeal because they usually only involve billing disputes between insurance companies and medical providers, this one is notable.
The insured, Mr. Amador, allegedly suffered personal injuries in a motor vehicle accident back in 2015. Infinity Auto was his insurer. The insurance company set up two dates for him to submit to Examinations Under Oath (EUOs), but he no-showed both dates. After that date, he sought treatment at Miami Open MRI, and Miami Open MRI (MRI is already an acronym, but can we just call Miami Open MRI “MOM” for short? I mean…yeah, I’m gonna call them MOM) billed Infinity Auto.
Infinity Auto denied payment on the ground that Mr. Amador had failed to report to his EUOs. As Mr. Amador’s assignee, MOM sued Infinity Auto for breach of the insurance policy. Per the policy and section 627.736(6)(g), the requirement to sit for EUOs is a condition precedent to receiving benefits.
MOM moved for summary judgment. MOM argued that the non-appearance at the EUOs was “ineffective” because Infinity Auto did not send the notice of the EUOs to Amador’s “retained attorney.” Infinity Auto countered that it did not receive a notice of representation from the attorney until after the dates for the two EUOs and after the date that Amador received medical care from MOM. MOM argued that Amador had told the insurance investigator that he had an attorney before both EUO dates, but the investigator had expressly told Mr. Amador that the attorney had to send a letter of representation to the insurance company and that none had yet been received.
Finding that there was no notice to the attorney and no prejudice to Infinity Auto, the trial court denied Infinity Auto’s affirmative defense concerning the EUO requirement and granted summary judgment for MOM.
On appeal, the DCA decided that with no formal letter of representation being received by the insurance company, Mr. Amador’s statement to the investigator that he had an attorney did not require the insurance company to coordinate EUO dates with the attorney. Amador’s failure to attend the two EUOs meant that he failed to satisfy a condition precedent to receiving benefits. So the DCA not only reversed summary judgment in MOM’s favor, it remanded with instructions to enter summary judgment for the insurance company.
https://supremecourt.flcourts.gov/content/download/870411/opinion/220948_DC13_06072023_ 101116_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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