13 Fla. L. Weekly Supp. 770a

Insurance — Personal injury protection — Examination under oath — Summary judgment must be affirmed as it was undisputed that insured refused to submit to EUO, a condition precedent to filing suit — Insured’s failure to submit to an EUO is a willful and material breach of the insurance contract that precludes recovery under the policy — Provider/assignee has no greater rights than the insured against the insurer

HESS SPINAL AND MEDICAL CENTERS, INC., d/b/a HESS SPINAL CENTERS, on behalf of Mario Tay, Appellant, vs. ROYAL AND SUNALLIANCE PERSONAL INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 04-0066AP-88A. UCN522004AP000066XXXXCV. March 15, 2006. Appeal from Final Judgment Pinellas County Court, Judge Walt Fullerton. Counsel: Scott E. Zimmer, St. Petersburg, for Appellant. Catherine M. Aebel, Tampa, for Appellee.

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by the Appellant, Hess Spinal and Medical Centers, Inc., d/b/a Hess Spinal Centers, on behalf of Mario Tay (Hess Spinal), from the Final Judgment for Defendant, entered April 26, 2005,¹ in favor of the Appellee, Royal and Sunalliance Personal Insurance Company (Royal). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The underlying action arose out of an ongoing insurance dispute between Hess Spinal and Royal for treatment rendered to Mario Tay (Tay) from August 21, 2002, through November 27, 2002 following a motor vehicle accident on August 16, 2002, in which Tay was a passenger. Under an assignment from Tay, Hess Spinal sought personal injury protection benefits pursuant to a policy issued by Royal to its insured, Josue Guerra, the driver of the vehicle. Royal first received notice of the accident on September 6, 2002, from Mr. Guerra and commenced an investigation to resolve coverage under the policy for Tay. As part of its investigation, Royal sent an acknowledgment package to Tay, including an application for no-fault benefits and an affidavit of non-ownership. During its investigation, Royal discovered that Tay lived at a separate address than its insured and at least one individual at Tay’s address had a vehicle registered in his/her name; this created a question of whether Royal’s policy was appropriate for primary PIP benefits.

Tay did not respond to Royal’s request for information, nor to Royal’s numerous attempts to schedule an examination under oath. Hess Spinal filed its complaint against Royal on July 10, 2003, to which Royal responded with its answer and affirmative defenses. Royal filed its motion for summary judgment on March 23, 2003, with supporting affidavits. Tay filed an unverified response to the motion for summary judgment without supporting affidavits. After a hearing on the matter, the trial court entered summary judgment in favor of Royal finding that Tay had failed, among other things, to submit to an examination under oath (EUO).

Before this Court, Hess Spinal argues that the trial court erred in entering summary judgment as Tay could not be held to the terms of the insurance contract since he was not a party to the contract; that genuine issues of fact remained, and; that summary judgment was premature when there was outstanding discovery. In reviewing the record de novo, the Court concludes that the trial court did not commit reversible error in entering summary judgment in favor of Royal. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (setting forth the de novo standard of review of a trial court’s decision to grant a motion for summary judgment).

Initially, the Court finds that Hess Spinal does not dispute the trial court’s primary reason for granting summary judgment, that Tay refused to submit to an EUO, a condition precedent to filing suit. In determining whether summary judgment on such grounds was proper, the Court finds that Hess Spinal, as the assignee, had no greater rights against Royal than those held by Tay, as the assignor. See Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22, 24 (Fla. 2d DCA 1979). An insured’s failure to submit to an EUO is a willful and material breach of the insurance contract that precludes the insured from recovery under the policy. See Goldman v. State Farm Fire General Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995); see also Stringer v. Fireman’s Fund Ins. Co. 622 So.2d 145, 147 (Fla. 3d DCA 1993), rev. denied, 630 So.2d 1101 (Fla. 1993). However, in order for the EUO to be a condition precedent to filing suit, the insurer must make the request before suit is filed. See Willis v. Huff, 736 So.2d 1272, 1274 (Fla. 4th DCA 1999).

In this case, there is no question that Royal made several attempts to schedule an EUO with Tay before suit was filed by Hess Spinal. While Tay was not the insured with whom Royal contracted, he was considered by Royal to be an “eligible injured person” and the person making the claim for PIP benefits under the terms of the policy. Hence, the Court finds that Tay was required to submit to Royal’s EUO requests as the policy mandated and that his refusal was a material breach of the insurance policy.

Accordingly, the Court finds that, as a matter of law, the trial court properly granted summary judgment in favor of Royal. Compare with Afield v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 117a (Fla. 6th Cir. App. Ct. 2005) (finding that trial court erred in granting summary judgment in favor of insurer based on insured’s failure to appear for EUO when EUO request was made after the complaint was filed). In reaching this conclusion, the Court finds that there was no outstanding discovery at the time of the hearing below and that Hess Spinal cannot avoid the entry of summary judgment simply by asserting that issues exist without any substantive support for its argument in the record. See Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) (stating that it is not enough for the opposing party merely to assert that an issue does exist).

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment for Defendant is affirmed. (JOHN A. SCHAEFER, LAUREN LAUGHLIN, and JAMES CASE, JJ.)

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¹This judgment was entered after this Court relinquished its jurisdiction upon finding that the Order on Defendant’s Motion for Final Summary Judgment, entered August 10, 2004, attached to the Notice of Appeal, was not final for purposes of appeal.