Although 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.