County Civil Court: INSURANCE –
Examination Under Oath (EUO) - summary judgment must be affirmed as it was
undisputed that insured refused to submit to EUO, a condition precedent to
filing suit – insured’s failure to submit to an EUO is a willful and material
breach of the insurance contract that precludes the insured from recovery under
the policy - the medical provider has no greater rights than the insured
against the insurer – Final Judgment affirmed.
Hess Spinal and Medical Centers,
Inc. v. Royal and Sunalliance Personal
Ins. Co., Appeal No. 04-0066AP-88A (Fla. 6th Cir. App. Ct. March 15,
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR
PINELLAS COUNTY, FLORIDA
HESS SPINAL AND MEDICAL CENTERS, INC., d/b/a
HESS SPINAL CENTERS, on behalf of Mario Tay,
vs. Appeal No. 04-0066AP-88A
ROYAL AND SUNALLIANCE PERSONAL
Appeal from Final Judgment
Judge Walt Fullerton
Scott E. Zimmer, Esquire
Attorney for Appellant
Catherine M. Aebel, Esquire
Attorney for the Appellee
ORDER AND OPINION
CAUSE came before the Court on appeal, filed by the Appellant, Hess Spinal
and Medical Centers, Inc., d/b/a Hess Spinal Centers, on behalf of Mario Tay
(Hess Spinal), from the Final Judgment for Defendant, entered April 26, 2005, in
favor of the Appellee, Royal and Sunalliance Personal Insurance Company (Royal). Upon review of the briefs, the record and
being otherwise fully advised, the Court affirms the trial court’s ruling as
set forth below.
The underlying action arose out of
an ongoing insurance dispute between Hess Spinal and Royal for treatment
rendered to Mario Tay (Tay) from August 21, 2002, through November 27, 2002
following a motor vehicle accident on August 16, 2002, in which Tay was a passenger.
Under an assignment from Tay, Hess
Spinal sought personal injury protection benefits pursuant to a policy issued
by Royal to its insured, Josue Guerra, the driver of the vehicle. Royal first received notice of the accident
on September 6, 2002, from Mr. Guerra and commenced an investigation to resolve
coverage under the policy for Tay. As part of its investigation, Royal sent an
acknowledgment package to Tay, including an
application for no-fault benefits and an affidavit of non-ownership. During its investigation, Royal discovered
that Tay lived at a separate address than its insured and at least one
individual at Tay’s address had a vehicle registered in his/her name; this
created a question of whether Royal’s policy was appropriate for primary PIP
Tay did not respond to Royal’s request
for information, nor to Royal’s numerous attempts to schedule an examination
under oath. Hess Spinal filed its
complaint against Royal on July 10, 2003, to which Royal responded with its
answer and affirmative defenses. Royal
filed its motion for summary judgment on March 23, 2003, with supporting
filed an unverified response to the motion for summary judgment without
supporting affidavits. After a hearing
on the matter, the trial court entered summary judgment in favor of Royal
finding that Tay had failed, among other
things, to submit to an examination under oath (EUO).
this Court, Hess Spinal argues that the trial court erred in entering summary
judgment as Tay could not be held to the terms
of the insurance contract since he was not a party to the contract; that
genuine issues of fact remained, and; that summary judgment was premature when
there was outstanding discovery. In
reviewing the record de novo, the Court concludes
that the trial court did not commit reversible error in entering summary
judgment in favor of Royal. See Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)(setting forth
the de novo standard of review of a trial court’s decision to grant a motion
for summary judgment).
Initially, the Court finds that Hess Spinal does not
dispute the trial court’s primary reason for granting summary judgment, that Tay refused to submit to an EUO, a condition precedent to
filing suit. In determining whether
summary judgment on such grounds was proper, the Court finds that Hess Spinal, as the assignee, had no greater rights
against Royal than those held by Tay, as the
assignor. See Alderman
Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d
22, 24 (Fla. 2d DCA 1979). An insured’s
failure to submit to an EUO is a willful and material breach of the insurance
contract that precludes the insured from recovery under the policy. See Goldman v. State Farm Fire
General Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995); see also Stringer
v. Fireman’s Fund Ins. Co. 622 So.2d 145, 147 (Fla. 3d DCA 1993), rev.
denied, 630 So.2d 1101 (Fla.
1993). However, in order for the EUO to
be a condition precedent to filing suit, the insurer must make the request
before suit is filed. See Willis
v. Huff, 736 So.2d 1272, 1274 (Fla. 4th DCA 1999).
this case, there is no question that Royal made several attempts to schedule an
EUO with Tay before suit was filed by Hess
Spinal. While Tay
was not the insured with whom Royal contracted, he was considered by Royal to
be an “eligible injured person” and the person making the claim for PIP benefits
under the terms of the policy. Hence,
the Court finds that Tay was required to
submit to Royal’s EUO requests as the policy mandated and that his refusal was
a material breach of the insurance policy.
Court finds that, as a matter of law, the trial court properly granted summary
judgment in favor of Royal. Compare
with Afield v. Progressive Express Ins. Co., 13 Fla.
L. Weekly Supp. 117a (Fla.
6th Cir. App. Ct.
2005)(finding that trial court erred in granting summary judgment in favor of
insurer based on insured’s failure to appear for EUO when EUO request was made
after the complaint was filed). In
reaching this conclusion, the Court finds that there was no outstanding
discovery at the time of the hearing below and that Hess Spinal cannot avoid
the entry of summary judgment simply by asserting that issues exist without any
substantive support for its argument in the record. See Landers v. Milton, 370
So.2d 368, 370 (Fla.
1979)(stating that it is not enough for the opposing party merely to assert
that an issue does exist).
Therefore, it is,
ORDERED AND ADJUDGED that the
Final Judgment for Defendant is affirmed.
DONE AND ORDERED in Chambers,
at Clearwater, Pinellas County, Florida
this ______ day of March 2006.
JOHN A. SCHAEFER
Judge, Appellate Division
Circuit Judge, Appellate Division Circuit Judge,
Copies furnished to:
Judge Walt Fullerton
1234 9th Street North
St. Petersburg, FL 33705
M. Aebel, Esquire
Office Box 172669
Tampa, FL 33672-0669