ADVANCED DIAGNOSTIC TESTING, INC., Appellant, v. STATE FARM INS. CO., Appellee.
11 Fla. L. Weekly Supp. 199a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 964c
Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Medical provider/assignee — Under explicit terms of insurance policy requiring person who suffers bodily injury to submit to EUO, neither corporate medical provider making claim based on assignment, nor treating physician working for provider, is required to attend EUO as condition precedent to filing suit against insurer — Insurer’s argument that with assignment obligation to attend EUO transfers to provider but also stays with insured is unpersuasive — Burden transferred to medical provider with assignment was burden that it could not file suit unless and until insured attended EUO, not burden for provider to attend EUO — Despite inability to require provider to submit to EUO, insurer can obtain discovery about treatment by deposing treating physician and using other usual discovery methods to uncover any fraud — Appeals — Court considers construction of contract despite fact that argument was not raised in trial court because error is fundamental — Attorney’s fees — Prevailing party — Fees are awarded to prevailing medical provider, contingent on ultimately prevailing in trial court — Justiciable issues — Due to fact that insurer’s position is not supported by its own policy, court on own motion makes unconditional award of fees to provider
