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January v. State Farm Mutal Insurance Co.2/14/2003
Petitioner, Henry January ["January"], seeks certiorari review of an order of the circuit court, sitting in its appellate capacity, affirming the county court's final summary judgment in favor of respondent, State Farm Mutual Insurance Co. ["State Farm"], and the order granting State Farm's motion to tax costs and attorney's fees.
Although we recognize that the scope of our review of such a decision is limited, we conclude that this case is within the scope of review because the circuit court applied the wrong law in affirming the decision of the county court.
January was injured while driving a 1981 Isuzu pickup on October 17, 1998. He was insured by State Farm under an automobile policy covering a 1990 Isuzu pickup. The policy included personal injury protection benefits. State Farm paid January's claims until January 22, 1999, when it advised January in writing that there was a question regarding coverage under the policy and it was issuing a reservation of rights. Specifically, State Farm said it was questionable "whether the vehicle involved in the accident constitutes either temporary substitute, newly acquired or a non-owned automobile or car, as defined in the policy or trailer as covered in the policy." The January 22 letter concluded by saying that if State Farm did not hear from the insured to the contrary, it would assume it was acceptable to continue handling the claim on terms of the reservation.
State Farm did not, however, pay January's medical bills submitted on January 2, 1999. On March 9, 1999, State Farm, now through counsel, wrote a letter scheduling an examination under oath on March 23, 1999. The policy in question provides that a person making a claim shall answer questions under oath when requested by State Farm. However, January did not attend the scheduled examination, nor did he attend a second scheduled examination, taking the position through counsel that PIP was largely controlled by statute and that the PIP statute did not contemplate statements under oath, only the discovery referenced in section 627.736(b) and (c), Florida Statutes (1999).
January's counsel did eventually give State Farm the name of the owner of the 1981 Isuzu and the name of his insurance company. State Farm then requested a copy of that owner's policy from January's counsel. When the policy was not received, a third examination under oath was scheduled. January again refused to attend this examination, instead filing suit against State Farm in county court for breach of contract for failing to pay his claims. January did appear for his deposition in the course of the lawsuit. He testified that he was not the owner of the 1981 Isuzu in which he was injured and he produced a bill of sale for the vehicle showing that he had sold it before the accident. State Farm nevertheless filed a motion for summary judgment, arguing that January's failure to appear for any of the scheduled examinations under oath was a material breach of the insurance contract and barred his recovery of PIP benefits. The county court agreed and entered summary judgment for State Farm. State Farm's motion for attorney's fees was granted.
In Amador v. United Automobile Insurance Co., 748 So. 2d 307 (Fla. 3d DCA 1999), review denied, 767 So. 2d 464 (Fla. 2000), more than thirty days after receiving a claim for PIP benefits, the insurer scheduled an examination under oath. Rather than attending, the insured filed a complaint for a declaratory judgment, injunctive relief and for breach of contract. The court in Amador rejected the insurer's argument that the insured could not file suit, even beyond the thirty-day period, if the insurer had requested further information. The court held th
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