Volume 11

11 Fla. L. Weekly Supp. 533a

Insurance — Personal injury protection — Coverage — Affirmative defenses — Failure to attend examination under oath — Notice — Imputed notice — Jury instructions — Abuse of discretion to refuse to accept jury instruction on imputed notice where requested instruction that notice of EUO to insured’s attorney constitutes notice to insured contained accurate statement of law, facts of case supported giving of imputed notice instruction, and instruction was necessary for jury to properly resolve notice issue — New trial required

11 Fla. L. Weekly Supp. 964c

Insurance — Personal injury protection — Assignment — Coverage — Conditions precedent — Examination under oath — Medical provider/assignee — Document providing that insured is transferring and conveying all rights, title, and interest in medical expense reimbursement was valid assignment and not merely a direction to pay — Assignment does not transfer to health care provider the obligation to attend an examination under oath — Under clear terms of insurance policy drafted by insurer, neither facility which employed physician nor treating physician was required to attend EUO as condition precedent to filing suit — Order dismissing case reversed

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

11 Fla. L. Weekly Supp. 1006b

Insurance — Personal injury protection — Assignee of insured not entitled to payment where insured/assignor failed to appear for examination under oath, a condition precedent to recovery under the policy at issue

11 Fla. L. Weekly Supp. 1027c

Insurance — Personal injury protection — Coverage — Medical expenses — Where insurer scheduled examination under oath more than thirty days after insurer received insured’s medical bills, and insurer did not have reasonable proof that it was not liable for the claim, insurer was precluded from raising as defense at trial insured’s failure to submit to EUO

11 Fla. L. Weekly Supp. 971a

Insurance — Personal injury protection — Coverage — Affirmative defenses — Failure to attend examination under oath — Error to find defense of failure to attend EUO was waived by failure to schedule EUO within 30-day period to investigate and dispose of claims — Insurer is not barred from investigating and contesting claims after 30-day deadline, but is subject to statutory penalties for denying reasonable and valid claims

11 Fla. L. Weekly Supp. 459a

Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Motion for protective order to disallow EUO or require taking of deposition in lieu of EUO after filing of suit is denied — Defendant is entitled to take EUO of insured without attendance of provider/assignee’s counsel, regardless of whether EUO was requested before or after suit was filed, where submission to EUO is material term of insurance policy and part of cooperation clauses of policy

11 Fla. L. Weekly Supp. 137a

Insurance — Personal injury protection — Insured’s failure to submit to examination under oath constituted failure to comply with condition precedent and willful and material breach of insurance contract which precludes insured’s recovery under policy

11 Fla. L. Weekly Supp. 707a

Insurance — Personal injury protection — Evidence — Hearsay — Insurer’s medical expert properly testified that he reviewed medical records from insured’s two previous accidents after he prepared his report and his opinion that no additional medical care was needed for neck pain and head pressure that insured claimed as result of current accident was unchanged, but trial court erred in allowing expert to then testify that prior record indicated that insured suffered from neck pain and headaches after previous accidents — Reversed and remanded for new trial

11 Fla. L. Weekly Supp. 68c

Insurance — Personal injury protection — Venue — Despite fact that policy of insurance was issued in and accident and treatment of insured occurred in Leon County, action against PIP insurer which is domestic corporation that regularly conducts business in Broward County may be brought in Broward County — Forum non conveniens — Motion to transfer venue based on forum non conveniens is denied without prejudice where insurer has not disclosed identity of witnesses or substance of their testimony to enable court to properly weigh convenience of all key witnesses