03-2533 MARLIN V. STATE FARM

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-2533 MARLIN V. STATE FARM

Case Date: 12/15/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 MARLIN DIAGNOSTICS, etc., Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellee. ** Opinion filed December 15, 2004. An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge. Lopez & Best and Virginia Best and Christian Carrazana, for appellant. Akerman Senterfitt and Marcy Levine Aldrich and Nancy A. Cooperthwaite and Jeffrey T. Cook, for appellee. Before SCHWARTZ, Senior Judge. PER CURIAM. We have for review an Order and Final Judgment of Dismissal of a class action based upon the trial court's determination C.J., and LEVY, J., and ORFINGER, Melvin, ** ** ** ** ** LOWER TRIBUNAL NO. 02-25036 CASE NO. 3D03-2533

that State Farm Mutual Automobile Insurance Company (State Farm) has the right to require a medical provider to submit to an Examination Under Oath (EUO) when that provider had accepted from State Farm's insured an assignment of benefits and had asserted the right to pursue personal injury protection (PIP) benefits. For the following reasons, we reverse. Correa received medical treatment at Marlin

Fidencia

Diagnostics (Marlin) following an automobile accident in June, 2001. Correa was insured by State Farm. Marlin received an

assignment of benefits from Correa and submitted a claim to State Farm for $680 for services rendered. In August, 2002,

State Farm requested that Marlin's representative submit to an EUO in accordance with the PIP provisions of Correa's policy which provides, among other things, that a person who suffers a bodily injury and makes a claim under the policy shall ". . . answer questions under oath. . . ." Marlin then filed an

amended complaint against State Farm, count I of which sought class action status and a declaration of rights predicated upon State Farm's denial of payment of PIP benefits to medical

providers who accept assignment of benefits but who fail to attend an EUO. Marlin. Count II was for breach of contract as to

In ruling on State Farm's motion to dismiss, the trial

court determined that State Farm had the right to require Marlin

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to submit to the EUO after accepting the assignment of Correa's benefits, and entered an Order and Final Judgment of Dismissal. State Farm argues here, as it did below, that the

assignment by Correa to Marlin transferred not just her rights to benefits under her policy, but also her obligations, one of which was to attend an EUO when requested by State Farm. correctly explained by the Circuit Court of the As

Eleventh

Judicial Circuit, Appellate Division, in the case of Advanced Diagnostics Testing, Inc. v. State Farm Ins. Co., 11 Fla. L. Weekly Supp. 964 (Fla. 11th Cir. Ct. 2004), a case where State Farm made an argument much like the one here, ". . . when an insured assigns his benefits to a healthcare provider, the

obligation to attend an EUO remains with the insured, and the insurer has a good defense to the providers claim if the insured refuses to attend an EUO." The obligation to attend an EUO does

not shift to the provider merely because the insured assigned her benefits. State Farm argues, however, that ". . . medical providers particularly those submitting claims

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