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
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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.
6
