Whether an assignee is required to respond to the insurer's invocation of an Examination Under Oath ("EUO") clause was at issue in Shaw v. State Farm Fire and Casualty Co., 2009 Fla. App. LEXIS 15930 (Fla. Ct. App. Oct. 23, 2009).
After the insured was involved in an auto accident, he received medical care from appellants. The insured assigned of his No-Fault benefits and cause of action to recover those benefits to appellants, the insured's health care providers.
When appellants presented a claim to State Farm for services rendered to the insured, State Farm requested that appellants appear for an EUO pursuant to the terms of the policy. The policy required "any person or organization making claim or seeking payment. . . must, at our option, submit to an examination under oath . . . ." State Farm suspected the claim submitted by appellants was fraudulent. Appellants then filed an action for declaratory relief seeking a judgment that they were not required under the policy provision to attend the EUO. The trial court entered a final summary judgment concluding appellants failed and refused to comply with the EUO provisions, which was a condition precedent to making a claim for policy benefits.
The appellate court affirmed. Prior Florida cases which did not require the assignee to attend an EUO were distinguishable based on the policy language. In one case, the EUO provision required "a person who suffers a bodily injury and makes a claim under the policy shall answer questions under oath." See Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So.2d 469 (Fla. Ct. App. 2004). Unlike the EUO in this case, the specific provision in Marlin required only the person who suffered the bodily injury to attend the EUO. In response to Marlin, State Farm amended its policies to require that "any person or organization making claim or seeking payment" be examined. Therefore, once the assignment was made, State Farm could no longer require the insured to attend the EUO, but could require the assignees of the policy to do so.
The following question was certified to the Florida Supreme Court: Whether the EUO provision in State Farm's policies is a condition precedent that must be complied with when a medical care provider takes an assignment of no-fault benefits and cause of action from the insured without specifically agreeing to be bound by that condition?
