10 Fla. L. Weekly Supp. 159c
Insurance — Personal injury protection — Dispute between medical provider and insurer — Examination under oath — No error in granting summary judgment based on insured’s failure to attend six EUOs where only evidence of reasonableness of noncompliance with policy requirement to attend EUO was unsubstantiated, untimely filed, self-serving hearsay statement attributing noncompliance to communications breakdown between insured and her former attorney
ADVANCED NEURODIAGNOSTICS & REHAB, INC. (a/a/o Joanne Crabtree), Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate-Civil) in and for Hillsborough County. Case No. 02-4307, Division X. L.C. Case No. 01-13608. November 25, 2002. Perry A. Little, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: Geoffrey B. Steiner, Geoffrey B. Steiner & Associates, P.A., Tampa, for Appellant. Gerard Duignan, Oxendine & Oxendine, P.A., Tampa, for Appellee.
Appellant Advanced Neurodiagnostics & Rehab, Inc., as assignee of Joanne Crabtree, appeals the final summary judgment entered against it by the county court on the ground that Ms. Crabtree failed to abide by the terms of her policy to provide a sworn written statement and attend an examination under oath (hereinafter EUO). We affirm the decision of the trial court.
The facts are briefly as follows. Advanced provided medical services on February 26, 1999 and March 15, 1999 to Crabtree, relating to her July 31, 1998 accident. Crabtree assigned her PIP benefits to Advanced, who submitted the bills to State Farm. State Farm refused to pay for the treatment and Advanced filed suit on June 29, 2001.
State Farm filed a Motion for Summary Judgment substantially alleging that Crabtree refused to attend an EUO which relieved State Farm of liability. Appellant failed to comply with policy requirements to provide a sworn written statement and attend an EUO on six separate occasions. Based on her failure to comply with the clear contractual requirements that were preconditions to filing suit, State Farm moved for summary judgment, and the trial court entered summary final judgment against Appellant and in favor of State Farm.
Appellant contends that her failure to attend the EUO was not unreasonable, and for this reason, the trial court erred in granting summary judgment. However, the issue is compliance with a contractual provision. All of the authority cited by Appellant refers only to independent medical examinations (IMEs), not EUOs. Indeed, Florida law shows that the trial court applied the correct standard. Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993), review denied 630So.2d 1101 (Fla. 1993), Goldman v. State Farm Fire General Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995), review denied 670 So.2d 938 (Fla. 1996), and Fassi v. American Fire & Casualty Co., 700 So.2d 51 (Fla. 5th DCA 1997). Additionally, Appellant failed to put forth any evidence that the refusals were excused, attributing her multiple failures to comply to a “communications breakdown with her previous attorneys.” This unsubstantiated, untimely filed hearsay statement was purely self-serving and does not demonstrate the existence of a material issue of fact. Capello v. Flea Market U.S.A., Inc., 625 So.2d 474 (Fla. 3d DCA 1993) citing Doss v. Steger & Steger, P.A., 613 So.2d 136 (Fla. 4th DCA 1993). In short, even if there were a requirement to show unreasonableness.
There was some evidence in the record that Crabtree’s noncompliance may well have been willful. However this Court feels that six attempts to obtain compliance alone is sufficient for Appellee to deny coverage under the law.
Appellant has failed to come forward with any evidence to show that her lapses were excused. Appellant cannot merely assert the presence of an issue of fact without presenting some admissible evidence of it. The Florida Bar v. Mogil, 763 So. 2d 303 (Fla. 2000); Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979); Fisel v. Wynns, 667 So.2d 761, 764 (Fla. 1996) (party must come forward with competent evidence demonstrating fact issue).
Appellant’s remaining issues are without merit. It is therefore
ORDERED that the decision of the trial court is AFFIRMED. (Baumann and Holder, JJ., concur.)
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