Category Archives: Examinations Under Oath (EUO)

PIP Legislative Calendar Governs EUO Requirements

Florida insurers are now being forced to navigate between sometimes conflicting rulings on Examinations Under Oath (“EUO”) based on pre- and post-2012 changes to the PIP/No-Fault laws.

Insurance companies and their defense law firms were disappointed when the Florida Supreme Court ruled in late June that GEICO could not withhold benefits to a policyholder in a pre-2012 auto case based on the policyholder’s unwillingness to attend an EUO.

In the matter Merly Nunez v. GEICO General Insurance Company, the Florida Supreme Court was asked by the U.S. Court of Appeals for the Eleventh Circuit to rule on, “[w]hether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an [examination under oath] as a condition precedent to recovery of [personal injury protection] benefits?”

The Court’s answer was in the negative, in a split 5-2 vote. The majority ruled that, “[t]he Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.”

“Swift and virtually automatic payment” is the primary intent of PIP laws, notes the majority. While GEICO argued the need for fraud prevention and claims investigations, the Court viewed these actions as contrary to a fast case resolution.

The majority opinion was written by Justice Perry, with Justices Pariente, Lewis, Quince, and Labarga concurring. Justice Canady wrote a dissenting opinion, in which Justice Polston concurred.

“Insurers have relied on the discretionary use of examinations under oath (EUOs) in appropriate cases to obtain relevant, needed information not only for the assessment of claimed losses, but for the prevention of fraud and abuse of the PIP system,” said Donovan Brown, Florida counsel and regional manager for the Property Casualty Insurers Association of America as quoted in an Insurance Journal article. “This ruling is another blow to Florida’s consumers in the fight against PIP fraud because the ruling further exposes consumers to the rampant PIP fraud that has plagued the Florida auto insurance system for far too long.”

Florida Governor Rick Scott approved changes to the state’s PIP statutes in May, 2012. As of January 1, 2013, insureds must now comply with all terms of a No-Fault policy, including any requirement to submit to an Examination Under Oath.

Click on the link to read the Supreme Court of Florida ruling in Merly Nunez v. GEICO General Insurance Company, No. SC12-650, dated June 27, 2013.

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Filed under Case Law, Examinations Under Oath (EUO), Fla. Stat. 627.736 (2008), Fla. Stat. 627.736 (2012), Insurance Fraud

Trial Advocate Quarterly Features Article on 2012 Florida PIP Law Changes by Mark J. Rose

Trial Advocate Quarterly

Trial Advocate Quarterly, Summer 2012

The summer 2012 of the Trial Advocate Quarterly features an article by attorney and FLPIPGuide.com contributor Mark J. Rose on the recent changes to Florida’s PIP/No-Fault Law including: statutory fee schedules, the “emergency medical condition” limitation, PIP payment logs, exhaustion of benefits, explanations of benefits, examinations under oat (EUO), independent medical examinations, and fraudulent PIP claims.

The article will soon be available on the Florida Defense Lawyer Association (FDLA) website at http://www.FDLA.org.  Requests for full copies of the article or for more information on the recent Florida PIP law changes, please contact Mark Rose (mrose@roiglawyers.com) or Michael Rosenberg (mrosenberg@roiglawyers.com).

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2012), Independent Medical Examinations (IME), Insurance Fraud, Licensing, The Statutory "Fee Schedules"

11 Additional Palm Beach County Defendants Charged In Staged Accident Fraud Scheme

According to a June 18, 2012 FBI press release from Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, John V. Gillies, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Field Office, José A. Gonzalez, Special Agent in Charge, Internal Revenue Service, Criminal Investigation Division (IRS-CID), and Jeff Atwater, Chief Financial Officer, Florida Department of Financial Services, 11 others are charged in two separate indictments for involvement in a staged accident PIP fraud scheme.

From the FBI press release:

In two separate indictments, defendants Obelio Rodriguez, a/k/a Ovy, 43, formerly of West Palm Beach, Maria Molina, a/k/a Cary, 41, of West Palm Beach, Yuliet Tapanes, 25, of West Palm Beach, Moises Madrid, 40, of Orlando, a licensed massage therapist, Dagoberto Milian Lopez, a/k/a Lavadora, 56, formerly of West Palm Beach, Amaurys Hernandez, a/k/a El Manco, 40, of West Palm Beach, Gilda Garcia, a/k/a Hilda, a/k/a La Que Carta, 49, of Greenacres, Javier De La Caridad Troncoso, 45, of Lake Worth, Ana Ovando, 42, of Lake Worth, and Janice Velez, 39, of West Palm Beach, were each charged with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 1349. Defendant Jennifer Adams, 38, of Boca Raton, a licensed chiropractic physician, was charged in an Information with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 1349. The charge carries a maximum sentence of 20 years’ imprisonment.

Those involved were allegedly involved in recruiting individuals to participate in staged automobile accidents and instructing participants on how to conduct accidents, what to tell responding police officers, insurance company representatives and independent medical examination (IME) physicians, how to collect police reports, and what clinic to go to for treatment, even though the participants did not need treatment.

Records also indicate the defendants prepared fraudulent insurance documentation and fraudulent PIP Automobile Insurance Claims for chiropractic and massage therapy treatments for the staged accident participants, claiming that that the treatments were medically necessary and that the patients had received the treatments when, in fact, the treatments were not necessary and usually not received.

The clinics involved include:

OVY Rehabilitation Medical Center, located on Congress Avenue, West Palm Beach, Florida;

HHR Rehab Medical Center, located on Congress Avenue, West Palm Beach, Florida

Chiropractic Center of Palm Beach Corp, located on Belvedere Road, West Palm Beach, Florida;

Chiropractic Office of South Florida, located on Congress Avenue, in Palm Springs, Florida

Florida Mango Massage Therapy Center, located on Forest Hill Boulevard, Lake Clarke Shores, Florida;

New York Medical and Rehab Center, located on Forest Hill Boulevard, Lake Clarke Shores, Florida;

and

KCC, located in West Palm Beach, Florida.

The full press release from the FBI is available here.

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2008), Independent Medical Examinations (IME), Insurance Fraud

State Hires Pinnacle Actuarial Resources to Analyze Impact of Florida PIP Law Changes

On Tuesday the Florida Office of Insurance Regulation (OIR) signed a $150,000 contract with the independent firm Pinnacle Actuarial Resources, to evaluate the impact of the recent changes to Florida’s PIP law.  The review, headed by former Insurance Services Office (ISO) employee LeRoy Boison, was commissioned as a part of the recent PIP law changes which permitted the OIR to spend up to $200,000 on the study.  Pinnacle was selected out of 37 vendors, three of which including Milliman, Melinos, and Pinnacle submitted proposals.   The findings from Pinnacle are due no later than September 15, 2012.

The full article from Florida Health News is available here.

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2012), The Statutory "Fee Schedules"

Biggest Asset in Fight Against PIP Fraud: Insurers’ “Treasure Trove” of Claims

If there is an expectation that our recently amended Florida PIP statute (F.S. 627.736) will be the instant cure to Florida’s PIP fraud, think again.  In an article from Property & Casualty 360, it was said best:

Insurance fraud is a continuous game of cat and mouse,” explains Jim Quiggle, director of communications, the Coalition Against Insurance Fraud (CAIF). “Investigators build a mouse trap, but then swindlers build a better mouse. The industry’s best defense is amassing field intelligence and analysis and then throwing that up against a ring.

The key to the recent busts of insurance fraud rings in both Florida and New York involving almost $300 million in fraudulent claims was the collaborative efforts of both insurance carriers and local, state, and federal agencies.

Florida’s recently amended PIP law is a clear indication that Florida Legislature recognized the importance of this collaborative effort in combatting fraud.  The recently amended, and yet to take effect, Florida PIP law includes a provision establishing a non-profit direct support organization called the “Automobile Insurance Fraud Strike Force.”  The organization can accept private donations for the purposes of preventing, investigating, and prosecuting motor vehicle insurance fraud all in the hopes of building a better “mouse trap.”

The full article from Property and Casualty 360 is available here.

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2012), Insurance Fraud

Florida Supreme Court to Decide EUO Issue

The law surrounding an insured’s requirement to attend an Examination Under Oath (EUO) seemed well settled in Florida until the Supreme Court of Florida added a footnote in its decision of Custer Medical v. United (Fla. Sup. Ct.). That one footnote has sent years of jursipridnece into a tail spin when it comes to requiring EUO’s under a PIP policy of insurance. Even the 11th Circuit felt the law is unclear and they have now certified the question to the Florida Supreme Court. John Pacenti of the Daily Business Review states:

The question certified to the Florida Supreme Court asks if “an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?”

The Florida Supreme Court tackled the issue in a lengthy footnote in a case not even involving examinations under oaths, or EUOs as they are called. Since then, lower state courts, some even in the same circuit, have issued contradictory rulings.

To read the entire article click here

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2008)

Federal Appellate Court Certifies EUO (Examination Under Oath) Issue to Florida Supreme Court

Yesterday, in the case of Merly Nunez v. Geico General Insurance Company, the United States Court of Appeals for the 11th Circuit  withheld ruling in a class action lawsuit arising out of a claim for PIP benefits denied for failure to attend an Examination Under Oath (EUO).  Recognizing that the issue is one of state law, the Federal Appellate court certified the question to the Florida Supreme Court in an effort to bring resolution to what they consider a “far from clear” status of Florida law regarding examinations under oath.  The ultimate question before both the Federal court and the Florida Supreme Court will be whether or not the obligation to attend an Examination Under Oath (EUO) is a “condition precedent” to extending coverage under a policy for No Fault (PIP) benefits in the state of Florida.  The issue has garnered a significant amount of attention due to its reference in a footnote in the Florida Supreme Court’s decision in Custer Medical Center v. United Auto Insurance Co. (Fla. 2010) and even more recently in its inclusion in the recently amended No Fault Statute, which has yet to take effect.  Justices Dubina, Fay and Kleinfeld opined:

Since the reference to EUOs is in a footnote and the court itself states that EUOs are not relevant to the appeal in Custer, this footnote is obiter dictum and not binding on any court.

The Court added:

Although we believe the Florida Supreme Court’s statements regarding EUOs in Custer are dicta and not binding, Florida law is far from clear.

*     *     *     *

For the foregoing reasons, we delay final judgment in this case until the Florida Supreme Court has had an opportunity to consider whether an insurer can require an insured to submit to an EUO as a condition precedent to recovery of PIP benefits under the Florida No-Fault Statute. Rather than attempting an Erie “guess” as to how the Florida Supreme Court would rule on this issue, we certify the following question to the Florida Supreme Court, pursuant to Fla. Const. art. V, § 3(b)(6). See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1143 (11th Cir. 2010):

1. Whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?

The complete opinion from the Federal Court is available here: Nunez v Geico

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Filed under Examinations Under Oath (EUO), Fla. Stat. 627.736 (2008), Fla. Stat. 627.736 (2012)

Senate Passes Amended House Bill 119 on March 9, 2012

On the final day of the 2012 Florida legislative Session, the Florida Senate passed (22-17) a modified PIP/No-Fault law with significant changes from the 2008 version of the statute.

According to Senator Mike Haridopolos, the 2012 legislative session was an effective one.  “[T]he legislature also made sweeping changes to the state’s personal injury protection (PIP) medical benefits under the No-Fault law and laws related to motor vehicle insurance fraud.  Currently, PIP is wrought with fraud and abuse, and this legislation, sponsored by Senator Joe Negron (R-Stuart), reforms PIP from start to finish and will end the cycle of rising auto insurance premiums.”

A copy of the amended No-Fault Statute can be found below:

Florida PIP/No-Fault Law (2012 Amendment)

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Filed under Demand Letter, Examinations Under Oath (EUO), Fla. Stat. 627.736 (2008), Fla. Stat. 627.736 (2012), Independent Medical Examinations (IME), The Statutory "Fee Schedules"