17 Fla. L. Weekly Supp. 198a
Online Reference: FLWSUPP 1703DIA3
Insurance — Personal injury protection — Examination under oath — Failure to attend — Medical provider/assignee was not required to attend EUO to assert right to PIP benefits
FLAGLER CLINIC CENTER, CORP, a/a/o DANIEL DIAZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-3119 CC 25 (3). December 10, 2009. Jacqueline Schwartz, Judge.
ORDER ON CROSS MOTIONS FOR FINAL SUMMARY JUDGMENT AND ENTERING FINALJUDGMENT IN FAVOR OF PLAINTIFF FLAGLER CLINIC CENTER, CORP. a/a/o DANIEL DIAZ
THIS CAUSE having come before the Court November 3, 2009, on Plaintiff’s and Defendant’s Cross Motions For Final Summary Judgment, and the Court having reviewed the pleadings, heard argument of counsel, and otherwise being fully advised, the Court finds as follows:
STATEMENT OF UNDISPUTED MATERIAL FACTS
1. Plaintiff, Flagler Clinic Center, Corp. a/a/o Daniel Diaz filed the instant action against Defendant State Farm Mutual Insurance Company (“State Farm”) seeking Personal Injury Protection (“PIP”) benefits pursuant to Section 627.736, Florida Statutes (2008) and an insurance contract issued by State Farm.
2. Daniel Diaz was involved in an automobile collision on July 1, 2007. At the time of the collision, Daniel Diaz (“Daniel”) was covered for PIP insurance benefits under an insurance policy issued by State Farm to Adjusting Solutions, Inc., c/o Daniel Diaz.
3. The day after the collision, Ramon started receiving medical care from Flagler Clinic Center, Corp. (“Flagler Clinic”), and executed a document titled “Irrevocable Assignment of Benefits/Policy Rights.” This document assigned Ramon’s rights under the State Farm PIP insurance policy to collect benefits to Flagler Clinic.
4. Flagler Clinic timely submitted a claim to State Farm seeking payment of PIP medical services rendered to Daniel under the insurance contract.
5. Thereafter, State Farm sought to take the Examination Under Oath (“EUO”) of: (1) the person with most knowledge of treatment at Flagler Clinic, (2) Dr. Kevin Resiseck, and (3) the therapist that rendered treatment to Ramon. These persons did not appear for the scheduled EUO.
6. State Farm did not pay for the medical services provided to Daniel by Flagler Clinic.
7. Flagler Clinic then filed the instant action for breach of contract seeking damages, statutory interest, and attorney’s fees and costs. State Farm’s answer to the complaint asserted the affirmative defense that Flagler Clinic’s failure to submit to an EUO breached a necessary condition precedent and therefore it was not required to make payment. Both parties filed motions for summary judgment.
ISSUE PRESENTED
Whether State Farm has the right to deny an assignee medical provider’s claim for medical services rendered to an insured under a personal injury protection policy on the basis that the assignee medical provider did not attend an examination under oath.
CONCLUSIONS OF LAW
For the reasons stated in this Court’s decision in Flagler Clinic Center, Corp. a/a/o Ramon Gomez v. State Farm Mutual Automobile Ins. Co., No. 09-00988 (Fla. Miami-Dade Cnty Ct., 11th Judicial Circuit December 14, 2009) [17 Fla. L. Weekly Supp. 202a] this Court grants summary judgment in favor of plaintiff Flagler Clinic. There is no genuine issue of material fact that Flagler Clinic, as Daniel’s assignee, had the right to personal injury protection benefits and was not required to attend an EUO in order to successfully assert that right. See Marlin Diagnostics v. State Farm Mutual Automobile Insurance Co., 897 So.2d 469 (Fla. 3d DCA 2004); Advanced Diagnostics Testing, Inc. v. State Farm Insurance Co., 11 Fla. L. Weekly Supp. C964 (Fla. 11th Cir. Ct. Aug. 17, 2004).
Accordingly, it is ORDERED and ADJUDGED that the Motion For Final Summary Judgment filed by the Defendant State Farm is hereby DENIED, and the Motion For Final Summary Judgment filed by the Plaintiff Flagler Clinic is hereby GRANTED.FINAL JUDGMENT FORFLAGLER CLINIC CENTER,CORP., a/a/o, DANIEL DIAZ
Pursuant to the foregoing, Final Judgment is hereby entered in favor of Plaintiff FLAGLER CLINIC CENTER, CORP., a/a/o, DANIEL DIAZ and against Defendant STATE FARM MUTUAL INSURANCE COMPANY.
