9 Fla. L. Weekly Supp. 252a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Examination under oath — Summary judgment in favor of insurer granted where insurance policy provides that answering questions at EUO is a condition precedent to suit, and medical provider assignee failed to attend EUO
M.D.C. d/b/a D.I.S.C. (As Assignee of Joshua Mathis), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MC-00-19768-RJ. July 5, 2001. Peter M. Evans, Judge. Counsel: Cris E. Boyer, Singer, Farbman & Associates, Hollywood, for Plaintiff. Frank S. Goldstein, Hengber & Goldstein, Ft. Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court for hearing on May 8, 2001, on the Defendant’s Motion for Summary Judgment. This Court having heard argument of counsel; having reviewed the court file; and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
The Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), issued an automobile insurance policy to Carolyn Mathis. This policy provided coverage for Joshua Mathis. On May 30, 2000, Joshua Mathis was involved in an automobile accident and sought PIP benefits under the above named policy of insurance. On or about June 26, 2000, Joshua Mathis underwent a video fluoroscopy. The Plaintiff, M.D.C. Diagnostics d/b/a D.I.S.C. (“MDC”), allegedly performed the procedure. Joshua Mathis signed a document titled “Assignment and Instructions for Direct Payment to Provider”. It is undisputed that this document is a valid assignment. Pursuant to the assignment, Joshua directly assigned his rights and benefits under the State Farm Policy to MDC.
Within thirty 30 days from the date State Farm received MDC’s billing for the video fluoroscopy, State Farm requested an Examination Under Oath (“EUO”) of pertinent individuals affiliated with MDC, in order to obtain additional claim information about the billing and the video fluoroscopy procedure. It is undisputed that the MDC representatives received notice of these Examinations Under Oath scheduled for August 21, 2000. State farm was advised by means of a letter received an August 17, 2000, that upon the advice of counsel, the MDC representatives would not be attending the EUO. On August 29, 2000, counsel for State Farm sent a letter to counsel for MDC, advising that MDC was obligated to attend the EUO as an assignee under the policy. No MDC representatives ever attended the EUO. State Farm subsequently denied MDC’s claim. On October 13, 2000, MDC filed a complaint alleging breach of contract and seeking declaratory relief. State Farm subsequently filed a Motion for Summary Judgment, stating MDC’s claim was denied as a result of breach of a condition precedent under the subject policy, due to their failure to attend the EUO.
CONCLUSIONS OF LAW
This Court begins by stating that there is no controlling case law which has specifically addressed the issue of a medical provider assignee being denied benefits due to their refusal to submit to an EUO. This analysis, however, does involve the application of contract principles which have been examined and determined to be valid over the years.
The Supreme Court of Florida has recognized that the rights and obligations of the parties under an insurance policy are governed by contract law since they arose out of an insurance contract. Lumbermens Mutual Casualty Co. v. August, 530 So. 2d 293 (Fla.1988). Since the Plaintiff accepted an assignment from Joshua Mathis, it now stands in the shoes of the assignor. Department of Revenue v. Bank of America, 752 So. 2d 637, 642 (Fla. 1st DCA 2000) reh’g denied (Fla. 2000). Pursuant to the policy of insurance, answering questions by process of an EUO is a condition precedent to payment of benefits. The Fourth District Court of Appeal has spoken to the principle, that a provision in an insurance policy requiring the insured to submit to examination under oath must be complied with, and, if breached, the insurer will be deprived of a valuable right for which it had contracted. Goldman v. State Farm, 660 So. 2d 300, 306 (Fla. 4th DCA 1995) review denied 670 So. 2d 938 (Fla. 1996). The compliance with the policy provision providing for an EUO is a condition precedent to suit, and noncompliance precludes a successful action on the policy, regardless of a showing of prejudice by the insurer. Id.
The Plaintiff, as a result of the assignment, now “owns” the cause of action against the Defendant. Oglesby v. State Farm, 781 So. 2d 469 (Fla. 5th DCA 2001) citing Garcia v. State Farm, 766 So. 2d 430 (Fla. 5th DCA 2000); Livingston v. State Farm, 774 So. 2d 716 (Fla. 2d DCA 2000). The medical care provider, as assignee, now stands in the shoes of the assignor and must attend and give testimony at a properly requested EUO.
In this case, State Farm requested and scheduled the EUO within the required thirty (30) day time frame, in order to comply with statutory requirements for payment of PIP benefits. See Fla. Stat. § 627.736(4)(b) (2000). An insurer providing PIP coverage, has the right to learn information about an insured’s treatment, the cost of such treatment, and the reasonableness of these costs of treatment. See Fla. Stat. § 627.736(6)(b-c) (2000); AIU Insurance Company v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000); Kaminester v. State Farm, 775 So. 2d 981 (Fla. 4th DCA 2000). An insurer is allowed latitude in order to investigate the accuracy of a claim. Daidone at 1112.
This Court also recognizes that at least one other Florida court has squarely addressed this very issue. In an Order dated April 27, 2001, the Honorable William Herring, Broward County Court Judge, partially granted the Defendant’s (Superior Insurance Company) Motion for Summary Judgment stating:
The Court finds the Defendant had a right under the insurance policy . . . to require a provider to submit to an EUO after a provider accepted an assignment of benefits and has the sole right to pursue PIP benefits.
Dr. Frank Falowski and Rainforest Rehabilitation, Inc. v. Superior Insurance Co., (Broward County Ct., Case No. 01-2925-COCE-53, 2001). The relevant provisions of the insurance policy at issue in this case mirror those of the Broward County court case.
This Court wishes to take a moment to address the Plaintiff’s “Chilling Effect” argument. The Plaintiff argues that requiring medical provider assignees to submit to EUO in these circumstances, would have a “Chilling effect on the entire medical community.” Plaintiff asserts that no medical facility will be willing to accept assignment of benefits in PIP cases, thereby placing the insured party in the precarious position of being required to pay for the necessary services up front. Certainly, there are many options available other than a scenario involving an assignment of benefits. This Court is not prepared to judicially deviate from long standing contract law. It is the function of the legislature to enact the laws for this state. It would be appropriate for those who share in the Plaintiff’s concern regarding the PIP statutes, to address their legislators who are in a position to make changes to the laws. The legislature is certainly able to exempt medical care providers from the requirements of an EUO after an assignment, should they feel it is an appropriate change in the law.
Based on the foregoing, the Defendant’s Motion for Summary Judgment is hereby GRANTED.
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