25 Fla. L. Weekly Supp. 897a
Online Reference: FLWSUPP 2510GIAMInsurance — Personal injury protection — Coverage — Failure to attend examination under oath — Provider/assignee not entitled to receive benefits where insured failed to attend EUO that PIP policy establishes as condition precedent to receipt of benefits
ADVANTACARE OF FLORIDA, LLC., a/a/o Crystal Giammalvo, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016 21495 CONS. August 8, 2017. Shirley A. Green, Judge. Counsel: Kim Simoes, for Plaintiff. John Mollaghan, Windhaven Insurance, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE, having come before this Court on the Defendant’s Motion for Summary Judgment and the Court having heard argument by the parties and being otherwise fully advised in the premises, it is hereby
ORDERED and ADJUDGED:
1. On or about 11/12/2014, CRYSTAL GIAMMALVO entered into insurance contract WINXXXX9484 with WINDHAVEN INSURANCE COMPANY that was effective on 12/27/2014.
2. As a condition precedent to filing suit against WINDHAVEN INSURANCE COMPANY, the insured must be in full compliance with all the terms of the insurance contract.
3. The Insurance Policy also provides that as a duty after an accident or loss, the claimant must cooperate in the investigation of the claim by submitting to an Examination Under Oath (hereinafter “EUO”) as often as the insurer may reasonably require.
4. The policy provides that a failure to cooperate may result in a denial of coverage.
5. On or about 12/27/2014, CRYSTAL GIAMMALVO was allegedly involved in an automobile accident.
6. As a result of the accident, CRYSTAL GIAMMALVO allegedly received medical services provided by Plaintiff, ADVANTACARE OF FLORIDA, L.L.C.
7. CRYSTAL GIAMMALVO assigned the right to PIP benefits under the subject insurance policy to the Plaintiff.
8. Windhaven Managers, Inc., the third-party claims administrator for Defendant, sent a “Notice of Taking Examination Under Oath” by certified mail to CRYSTAL GIAMMALVO in order to determine if the Claimant was entitled to coverage under policy WINXXXX9484. Said EUO was scheduled for 2/27/2015.
9. Claimant had failed to comply with a condition precedent to receiving PIP benefits by failing to attend the scheduled EUO.
10. Therefore, the Plaintiff, as Claimant’s assignee, was not entitled to receive PIP benefits for the medical bills at issue.
11. Defendant’s Motion for Final Summary Judgment is granted. Court reserves Judgment on Sanctions pursuant to Florida Rule 57.105.
