Insurer Doesn’t Owe Med Pay when Insured Doesn’t Attend EUO

A new case out of the Second District reveals how important it is for an insured to comply with the provisions of the insurance contract.  In Amica Mutual Insurance Company. v. Drummond, 32 Fla. L. Weekly D2907, 2007 WL 4270593 (Fla. 2nd DCA December 7, 2007), the court determined the insurer was not obligated to pay any outstanding medical payment (“Med Pay”) benefits based on the insureds’ refusal to attend an examination under oath.

In this case, both the motor vehicle and passenger were insured by the same insurance company. The driver sought Med Pay benefits under the motor vehicle’s policy, and the passenger sought Med Pay benefits under both the motor vehicle’s policy and his own policy. The insurance company which insured the vehicle tried to investigate the accident and injuries to both insureds, and began to take sworn statements, which were unfinished. The insurance company then sought to exercise its right to “Examinations Under Oath” (EUOs) as allowed by the insurance policies. The insureds’ attorney advised the insurance company his clients would not be pursuing a UM claim, and that since PIP benefits did not require an EUO, the insureds would not participate in any EUOs. The attorney did not produce his clients for EUOs on a date which was previously coordinated by the insurance company, the lawyers, and the insureds.

The insurance company again tried to schedule the EUOs, advising that the insureds’ Med Pay benefits were suspended until the examinations occurred. Once again, the lawyer for the insureds informed the insurance company that the insureds would not appear for the EUOs. The insurance company then filed a declaratory judgment action to determine whether the insureds’ refusal to attend EUOs relieved the insurer of its duty to pay outstanding Med Pay benefits.

The appellate court noted an EUO was a “condition precedent” which must be performed to trigger the insureds’ rights under the insurance policy. The court recognized the insurance policy contained language that the insurance company had “no duty to provide coverage . . . unless there has been full compliance” with the EUO requirement. Thus, the insureds’ failure to submit to the EUOs absolved the insurance company of its duty to provide coverage. Because the insureds never submitted to an EUO, the court claimed the insurer was within its rights to refuse payment of Med Pay benefits for treatment which occurred after the insureds’ initial refusal to attend an EUO.