15 Fla. L. Weekly Supp. 269a
Insurance — Personal injury protection — Examination under oath — Refusal to cooperate — Final summary judgment is granted in favor of insurer where insured invoked Fifth Amendment right against self-incrimination when asked during EUO whether she was given money to go to medical provider’s clinic — Fact that insured assigned benefits to provider does not allow provider to use privilege as sword in PIP litigation — Insured’s unreasonable refusal to cooperate in EUO binds provider and relieves insurer of liability to pay benefits
HEALTH TEAM DR’S, a/a/o MILADY DIAZ, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit for Miami-Dade County, Civil Division. Case No. 05-3347 SP 26 (04). December 21, 2007. Gloria Gonzalez-Meyer, Judge. Counsel: Maria E. Corredor, Miami, for Plaintiff. Edward N. Winitz, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGEMENT
THIS CAUSE came before the Court on the 19 day of November, 2007 on Defendant’s Motion for Final Summary Judgment and this Court, having reviewed the file, having heard argument of counsel and being otherwise duly advised in the premises, Defendant’s Motion is hereby granted.
UNDISPUTED FACTS
1. On or about October 4, 2004 Milady Diaz was allegedly injured in a car accident. Milady Diaz sought treatment with the Plaintiff, HEALTH TEAM DR’S. Ms. Diaz claims she began treatment at Plaintiff’s facility on or about October 11, 2004 and continued to treat until about December 28, 2004.
2. In exchange for the services provided by Plaintiff, Ms. Diaz executed an Assignment of Benefits that transferred her rights and interest under her insurance policy to the Plaintiff.
3. On or about May 8, 2006, a Deposition of Ms. Diaz was taken.
4. During her deposition, Ms. Diaz was asked whether the Plaintiff or anyone else gave her anything for going to the clinic. Ms. Diaz invoked her Fifth Amendment Right against self-incrimination. She was then asked several times if anyone gave her money to go to the clinic. She pled the fifth to those questions as well. She was also asked if Julian or his wife ever gave her money in exchange for going to the clinic. She pled the fifth.
5. The insurance contract with State Farm requires Ms. Diaz to:
2. REPORTING A CLAIM — INSURED’S DUTIES
4. Other Duties Under No-fault, Medical Payments. . .
That insured also shall answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answer.
Any person making claim:
a. under the no-fault, medical payments, uninsured motor vehicle and death, dismemberment, and loss of sight coverages shall:
(3). answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answer.
ANALYSIS OF THE LAW
The issue for determination is whether the Defendant’s Motion for Final Summary Judgment should be granted because the Plaintiff invoked her Fifth Amendment right against self-incrimination when asked if she was given money to go to the clinic. A series of cases beginning with Stockman v. Stockman, 168 So.2d 320 (Fla. 1969) stands for the proposition that a litigant may use the Fifth Amendment as a shield but not a sword during litigation. In Stockman, the Florida Supreme Court held that the Plaintiff must answer or face dismissal where the Plaintiff refused to respond (on claiming protection against self-incrimination) to Defendant’s Request for Admissions. The Court opined that the privilege should not be used as an instrument of attack by a Plaintiff seeking affirmative relief. In Rollins Burdick Hunter of New York v. Euroclassics Ltd., 502 So.2d 959 (Fla. 3rd DCA 1987), the Third District Court of Appeals stated that “a civil litigant’s Fifth Amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a Plaintiff seeking affirmative relief in a civil action may not invoke the Fifth Amendment and refuse to comply with the Defendant’s discovery request.” The Court goes on to say that the proper remedy where the Plaintiff invokes her Fifth Amendment Privilege to avoid discovery is dismissal.
The Plaintiff argues that this line of cases should not apply because Ms. Diaz assigned her benefits to the Plaintiff. The Plaintiff claims that the Fifth Amendment Privilege is a personal one that may not be asserted on behalf of others and relies upon the case of Eller Media Co. v. Serrano, 761 So. 2d 464 (Fla. 3rd DCA 2000) for this proposition. In Eller, the Third District Court of Appeals affirmed the trial court’s decision denying Defendant’s motion to stay discovery based upon the possibility that the Defendants might at some point in the future invoke their Fifth Amendment Privilege. The Court found that the Defendant simply wanted to avoid all discovery. In addition, the Court found that the corporate Defendant could not vicariously assert the privilege on behalf of its employees because it is personal. The Court also found that there was no evidentiary support for Eller Media’s contention that its employees would invoke the privilege at all. Eller Media v. Serrano, does not allow the Plaintiff in the case at bar to use the privilege as a sword during civil litigation simply because Ms. Diaz assigned her rights and benefits to a corporation. To do so would give the Plaintiff an unfair advantage.
Moreover, the assignment by Ms. Diaz to the medical provider causes the assignee to “stand in the shoes” of Ms. Diaz. The assignee has the same rights and status as Ms. Diaz. Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2nd DCA 2003). In addition, Ms. Diaz gives to the Plaintiff all her rights and burdens. Suniland Associates, Ltds v. Wilbenka, Inc., 656 So.2d 1356 (Fla. 3rd DCA 1995).
Lastly, the contract of insurance with State Farm requires that the insured answer all questions asked by them. This was clearly not done in the case at bar. It is well established that an insurer is relieved of its liability to pay medical expenses by a claimant’s failure to submit to an examination under oath. Stringer v. Fireman’s Fund Co., 622 So.2d 145 (Fla. 3rd DCA 1993) (“The failure to submit to examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay.”); Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944 (11th Cir. 1990), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990); and Laine v. Allstate Insurance Company, 355 F.2d 1303 (N.D. Fla. 2005). The insured in the case at bar has refused to answer whether or not she was paid to go to the provider. This is clearly an unreasonable refusal to cooperate and a defacto refusal to cooperate. The provider is bound by the insured’s failure to cooperate. Goldman v. State Farm Fire General Ins. Co., 660 So. 300 (Fla. 4th DCA 1995).
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is hereby granted.
