Alfonso was injured in an accident and sought treatment with Plaintiff facility. She was not the named insured under the UAI policy, but qualified for coverage as an omnibus insured. UAI scheduled Alfonso for two EUOs, but she failed to attend either and never offered a valid reason or excuse. The trial court rejected UAI's coverage defense based on the failure to attend the EUO and the appellate court affirmed.

The appellate court's holding was based specifically on policy language. The court stated:

The relevant portions of the policy which required an examination under oath specifically referred to "you" (named insured or resident spouse) and not "A Person seeking any coverage or benefits" or "injured person" or "resident relative" (omnibus insured). Miami Neurology successfully argued to the trial court that "you" as defined in the Definitions section of the policy refers only to the named insured and resident spouse. Based on that argument, the trial court granted Miami Neurology's motion for summary judgment as to that affirmative defense. Construction of an insurance contract is a question of law, and the scope of our review is de novo. Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc. , 874 So. 2d 26, 29 (Fla. 2d DCA 2004). If policy provisions are ambiguous and cannot be reasonably reconciled, then this Court must apply well-established rules of construction. Siegle v. Progressive Consumers Ins. Co. , 819 So. 2d 732, 735 (Fla. 2002). The most basic rule of construction is that ambiguous policy provisions are to be construed in favor of the insured and against their drafter, the insurer. Purrelli v. State Farm Fire & Cas. Co. , 698 So. 2d 618, 620 (Fla. 2d DCA 1997). The principle of expressio unius est exclusio alterius, also a rule of construction, means "the mention of one thing implies the exclusion of another", Rotemi Realty, Inc. v. Act Realty Co. , 911 So. 2d 1181, 1187 (Fla. 2005) and it applies to contracts as well as statutes. U.S. v. First National Bank of Crestview, 513 So. 2d 179 (Fla. 1st DCA 1987).

United Auto argues that Part F of the policy, "Duties After An Accident or Loss" which provides that "A Person seeking any coverage or benefits" must "cooperate in the investigation, settlement or defense of any claim or suit" includes a duty to submit to an examination under oath (EUO). However, the EUO requirement is specifically and separately articulated in Part E and F of the policy. Part E, "Florida Motor Vehicle No Fault Law" (the PIP portion of the policy) under "Conditions" states:

4. Examination Under Oath: As a condition precedent to receiving personal injury protection benefits, "you" must cooperate with "us" in the investigation, settlement or defense of any claim or suit, including submitting to examination under oath by any person named by "us" when or as often as "we" may reasonably require at a place designated by "us" within reasonable time after "we" are notified of the claim. Only the person being examined may be present during any examination.

Similar wording also appears in Part F of the policy as well, as follows:

2. As a condition precedent to receiving any benefits under this policy, "you" must submit to an examination under oath by any person named by "us" when or as often as "we" may reasonably require at a place designated by "us" within reasonable time after "we" are notified of the claim. Only the person being examined may be present during any examination.

The Definitions section of the policy defines "you" as the named insured or resident spouse. Thus in the PIP portion and in a general duty portion, United Auto expressly provided that a named insured or resident spouse were the only individuals required to attend an EUO. United Auto not only mandated cooperation of a named insured or resident spouse "in the investigation, settlement of defense of any claim or suit" but it expressly established an EUO as being a required part of that cooperation in Part E, the PIP portion of the policy. United Auto could have required the attendance of "A Person seeking any coverage or benefits" at an EUO as part of a cooperation clause under Part F, a general duty portion of the policy1, but it did not expressly do so. See Arias, 944 So. 2d at 1197 (holding that an insurer could not look to an EUO requirement in a liability portion of the policy when the PIP portion of the policy did not expressly require an EUO). This policy did not expressly require that a PIP claimant submit to an examination under oath as a condition precedent to filing suit. See e.g., Arias v. Affirmative Ins. Co. , 944 So. 2d 1195, 1197 (Fla. 4th DCA 2006). Moreover, the assignment of benefits transfers the right to benefits but not the obligations; the obligations remain with the PIP claimant and do not shift to the provider. Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co. , 897 So. 2d 469 (Fla. 3d DCA 2004). For all of these reasons, we reject United Auto's argument on the first issue. The appellate court reversed the summary judgment, however, because UAI was entitled to pursue its defense that the treatment was not reasonable, necessary or related and the trial court had improperly refused to consider UAI's affidavit from a physician who conducted only a paper review.

The court awarded fees to the provider for the appellate time spent on the EUO issue.

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