A Review of “Examination Under Oath” and “Independent Medical Examination” Provisions for PIP Benefits

2003_4_24_322_0_OPLAlthough Florida instituted a no-fault insurance scheme to assure swift recovery for auto accident victims and dissuade needless litigation involving small claims, insurers have often conditioned the receipt of benefits in various ways that have made the benefit acquisition process increasingly protracted and involved. Two common provisions that insurers incorporate into their no-fault contracts are the requirement that the insured submit to an “Examination Under Oath” (EUO) prior to receiving benefits and the requirement that the insured undergo an “Independent Medical Examination” (IME) if he or she is seeking coverage for treatment of a physical injury.

In June of last year, the Supreme Court of Florida rendered a decision in Nunez v. Geico, which took a strong stance related to the propriety of EUO provisions. In Nunez, the court held that although the PIP statute, § 627.736 Florida Statutes, is silent with respect to EUOs, delaying or denying coverage based on the insured’s failure to submit to an oral examination under oath was inconsistent with the statutory goal under § 627.736 “of ensuring swift and virtually automatic payment of benefits” and, thus, invalid. Geico noted concerns related to fraud, but the majority held that an insurer concerned about fraud could make use of § 627.736(6)(c), which allows for court-ordered discovery upon a showing of good cause. In reaching this decision, the court compared EUOs to Independent Medical Exams, the latter of which are directly addressed and permitted under § 627.736.

Although the court staked a strong position in Nunez, the impact of the decision is limited. Before the court even rendered its opinion, the Florida Legislature passed new laws that amended the PIP statute in order to permit EUOs in no-fault insurance policies. Accordingly, only PIP claims delayed or denied prior to implementation of the legislation are affected by the Nunez decision. In addition, the new legislation modified the preexisting IME provisions to allow an insurer to deny coverage when the insured has unreasonably failed to attend a scheduled IME. Failing to attend two scheduled IMEs creates a rebuttable presumption of unreasonableness.

Since insurers are permitted to include EUO and IME provisions in their no-fault contracts, it is important to understand the implications of each.

An EUO provision requires that the insured claimant, in certain cases, appear in court and testify under oath about his or her injuries and damages in order to receive benefits. The scope of the questioning allowed during an EUO can be broad, since the attorney conducting the examination on behalf of the insurer can ask about not only relevant information concerning the claim but also information that could reasonably be expected to lead to relevant information concerning the claim. This testimony can be both transcribed and video-recorded.

An IME provision requires an insured claimant who seeks coverage for medical treatment to undergo evaluation by a physician chosen and compensated by the insurance provider who verifies the necessity of treatment. The physician conducting the IME does not provide treatment. Instead, he or she merely determines if the treatment you are receiving from your physician is necessary. The IME must take place within 10 miles of the insured residence, and like EUOs, IMEs can be video-recorded and transcribed by a court reporter.

Although an insurer will not always utilize these provisions before providing benefits, one should be aware of the scope of inquiry that can be involved when he or she seeks benefits that should, in theory, be simple and virtually automatic. EUOs and IMOs fall short of formal legal proceedings, but you are entitled to representation at each and should have some legal guidance, since either can lead to a denial of PIP coverage. In addition, as noted above, PIP benefits denied based on refusal or failure to attend an EUO prior to implementation of the new legislation may now be recoverable. If you are in need of advice regarding your PIP auto accident claims or have another question regarding auto accident recovery, the South Florida motor vehicle accident attorneys at Frankl and Kominsky are knowledgeable about all facets of Florida’s no-fault insurance scheme and can offer assistance. For a free evaluation, click here or call 1-855-800-8000.