11 Fla. L. Weekly Supp. 1006b
Insurance — Personal injury protection — Assignee of insured not entitled to payment where insured/assignor failed to appear for examination under oath, a condition precedent to recovery under the policy at issue
RAVELING CHIROPRACTIC CENTER, P.A., on behalf of JACQUIE CRAWFORD, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 03-010304-SC-NPC. August 11, 2004. Myra Scott McNary, Judge. Counsel: Stanley Gipe. Susan H. Sharp and Scott W. Dutton, Haas, Dutton, Blackburn, Lewis & Longley, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on July 20, 2004, on the Defendant’s Motion for Final Summary Judgment on the issue of the insured’s failure to appear for an examination under oath. The Court, having heard argument of counsel, having considered the authorities, and being otherwise fully advised in the premises, makes the following findings:
1. Plaintiff has brought a claim for personal injury protection benefits as assignee of Jacquie Crawford, an insured of Progressive Express Insurance Company, Defendant.
2. The case law is clear that the insurance policy is a contract between the insured and the insurance company. As a condition of receiving insurance benefits the insured is required to submit to an examination under oath.
3. Defendant, through their counsel, properly served notice to Ms. Crawford on March 2, 2004, to appear for an examination under oath on April 5, 2004.
4. Ms. Crawford failed to appear for her scheduled examination under oath on April 5, 2004, and the court reporter issued a certificate of nonappearance indicating her failure to appear.
5. Therefore, insured failed to comply with a condition of the contract, which precludes the insured from recovery under the insurance policy. (Per the holding in Goldman v. State Farm Fire Gen. Ins., 660 So.2d 300 (Fla. 4th DCA 1995).
6. Case law is clear that assignee stands in no greater position than the insured/assignor. Alderman Interior Sys, Inc. v. First Natl.-Heller Factors, 376 So.2d 22 (Fla. 2nd DCA 1979).
7. Since the insured/assignor has failed to comply with the condition precedent of this policy there can be no benefits paid to the insured or her assignee, the medical provider.
ADJUDGED, that the Defendant’s Motion for Final Summary Judgment is hereby granted, in favor of the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, that Plaintiff, RAVELING CHIROPRACTIC CENTER, P.A., take nothing by this action, and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence forth without day. This court reserves jurisdiction to tax fees and costs.
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