INFINITY AUTO INSURANCE COMPANY v. MIAMI OPEN MRI, LLC a/a/o ROLANDO AMADOR

• Court: District Court of Appeal of Florida
• Decided: June 7, 2023
• Docket: 22-0948
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 7, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-0948 Lower Tribunal No. 17-10295 SP ________________

Infinity Auto Insurance Company, Appellant,

vs.

Miami Open MRI, LLC a/a/o Rolando Amador, Appellee.

An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge.

Gladys Perez Villanueva; Law Offices of Terry M. Torres & Associates and Robert Phaneuf, for appellant.

Neimand Law, LLC and Tricia Neimand, for appellee.

Before LOGUE, HENDON and LOBREE, JJ.

LOBREE, J.

In this personal injury protection (“PIP”) case, the insurer, Infinity Auto Insurance Company (“Infinity Auto”), appeals a final summary judgment

entered in favor of the medical provider, Miami Open MRI, LLC (“Miami

Open”). We reverse and remand for entry of summary judgment in favor of

Infinity Auto.

The insured, Rolando Amador, allegedly suffered personal injuries

when he was involved in an automobile accident on April 15, 2015. At the

time of the accident, Amador had an automobile insurance policy with Infinity

Auto providing PIP coverage, and Amador notified Infinity Auto about the

accident. Thereafter, Amador failed to appear for examinations under oath

set for May 28, 2015, and June 10, 2015. Amador then sought medical

treatment for his injuries from Miami Open on June 18, 2015, and Miami

Open billed Infinity Auto for those services. Infinity Auto denied payment on

the ground that Amador had failed to appear at the examinations under oath.

Miami Open, as Amador’s assignee, sued Infinity Auto for breach of

contract. Infinity Auto answered, raising the sole affirmative defense that

Miami Open was not entitled to benefits because Amador’s failure to appear

for two properly noticed examinations under oath constituted a failure to

comply with a condition precedent to receiving benefits under section

2 627.736(6)(g), Florida Statutes (2015),1 and the terms of the policy. 2

Following cross motions for summary judgment on Infinity Auto’s affirmative

defense, the trial court granted Miami Open’s motion and denied Auto

Infinity’s motion. The trial court found that Infinity Auto’s notice to Amador of

the examinations under oath was “ineffective,” because Infinity Auto failed to

1 That section provided as follows: 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. 626.9541. § 627.736(6)(g), Fla. Stat. (2015) (emphasis added). 2 An endorsement to the policy’s PIP coverage relevantly provided as follows: D. CONDITIONS ....

The following are added to this section, Conditions: .... Examination Under Oath As a condition precedent to receiving personal injury protection benefits under the policy, any insured making a claim for personal injury protection benefits must submit as often as we require to examinations under oath . . . .

3 also send notice to Amador’s “retained attorney.” 3 The trial court further

found that having failed to notify Amador’s attorney about the examinations

under oath, Infinity Auto “arguably” suffered no prejudice from Amador’s

failure to attend. Thus, the trial court concluded that Infinity Auto failed to

meet its burden on summary judgment to show that the affirmative defense

was applicable.

The summary judgment record does not support the trial court’s finding

that Infinity Auto failed to properly notify Amador’s attorney. In support of its

contention that Infinity Auto knew that Amador had retained an attorney prior

to the date of the first examination under oath, May 28, Miami Open relied

on a May 20 telephone conversation between Amador and Infinity Auto’s

special investigator, Demis Diaz. During that conversation, Amador told him

that he had an attorney. Diaz’s unrebutted testimony was that in response,

he told Amador to tell his attorney to contact Infinity Auto because there was

no letter of representation in his file and that the previously scheduled May

28th examination under oath would remain in place. Amador did not identify

his attorney to Diaz. With no express notification from an attorney stating

that he or she represented Amador and requesting notice of any action from

3 Miami Open never asserted below that the insured, Amador, did not receive notice of the examinations under oath.

4 Infinity Auto, the trial court erred in finding that the summary judgment

evidence established that Infinity Auto failed to notify Amador’s unidentified

“retained attorney” about the examinations under oath. 4

Here, “[t]he plain language of section 627.736(6)(g) and [Infinity Auto’s]

policy clearly and unambiguously require compliance with the policy

provision of submitting to an examination under oath as a condition

precedent to receiving PIP benefits.” Miracle Health Servs., Inc. v.

Progressive Select Ins. Co., 326 So. 3d 109, 114–15 (Fla. 3d DCA 2021).

Thus, Amador’s failure to submit to a properly noticed examination under

oath, in accordance with the policy’s PIP endorsement and section

627.736(6)(g), barred receipt of benefits. Id. at 113. Moreover, because

submitting to an examination under oath is a condition precedent to receipt

of PIP benefits under section 627.736(6)(g) and the policy at issue, prejudice

is not an element of Infinity Auto’s affirmative defense to Miami Open’s claim

for services taking place on June 18, 2015, and the trial court erred in

requiring otherwise. See United Auto. Ins. Co. v. G & O Rehab. Ctr., Inc.,

374 So. 3d 492, 498 (Fla. 3d DCA 2022). Accordingly, we reverse the grant

of summary judgment in favor of Miami Open, and remand with instructions

4 Infinity Auto’s litigation adjuster testified that it later received a letter of representation from Amador’s attorney on July 14, 2015.

5 to grant summary judgment in favor of Infinity Auto.

Reversed and remanded.