10 Fla. L. Weekly Supp. 449a
Insurance — Personal injury protection — Insured is required to submit to examination under oath even though EUO was requested subsequent to suit being filed because EUO requirement is material term of insured’s policy — Further, failure to appear at EUO would violate “cooperation clause” of insured’s policy — Insured’s agreement to sit for deposition following suit did not satisfy spirit of policy mandating EUO — Motion for protective order denied
ALL HEALTH CHIROPRACTIC, a/a/o Veronica Jones, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. MS 02 4719 RF. March 21, 2003. David C. Clark, Senior Judge. Counsel: Robert J. Cooney, Miami, for Plaintiff. Frank S. Goldstein and Amy J. Fisher, Hengber & Goldstein, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR APROTECTIVE ORDER FOR THE EUO OF VERONICA JONES
THIS CAUSE having come before this Court upon Plaintiff, ALL HEALTH CHIROPRACTIC’S, Motion for a Protective Order to prevent the Examination Under Oath of Veronica Jones, and the after hearing argument of counsel on February 26, 2003 and being otherwise fully advised of the premises, it is hereby:
ORDERED AND ADJUDGED as follows:
Plaintiff’s Motion is denied. The Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, is entitled to take the Examination Under Oath of its insured, Veronica Jones, before or after the filing of a lawsuit.
Pursuant to Defendant’s policy of insurance with Veronica Jones, Defendant is entitled to conduct an Examination Under Oath of Veronica Jones. Specifically, Defendant’s policy of insurance with Veronica Jones provides that a person making a claim “shall (a) give us all the details about the death, injury or treatment and other information we need to determine the amounts payable,” and “(c) answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers.” Further, the policy states: “The insured shall cooperate with us and, when asked, assist us in: ‘securing and giving evidence.’ ”
State Farm’s policy of insurance does not expressly provide that depositions may be substituted for examinations under oath. Instead the policy requires separate Examinations Under Oath for each insured. Trial judges have declined to equate depositions with Examinations Under Oath noting that “there is a big difference between taking a sworn statement under the provisions of the contract and the taking of a deposition. It’s a horse of a different color.” Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300, 303 (Fla. 4th DCA 1995).
An Examination Under Oath provision in an insurance contract is both a condition precedent to filing a lawsuit and [emphasis added]a material term of the policy of insurance. Haiman v. Federal Insurance Company, 789 So.2d 811, 812 (Fla. 4th DCA 2001); Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300, 303 (Fla. 4th DCA 1995); Stringer v. Fireman’s Fund Insurance Company, 622 So.2d 145, 145 (Fla. 3rd DCA 1993); Pervis v. State Farm & Casualty Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899 (1990); Paulucci v. Liberty Mutual Fire Insurance Co., 190 F.Supp.2d 1312, 1326 (M.D. Fla. 2002); Jorge Candanosa v. U.S. Security Insurance Co., 3Fla. L. Weekly Supp. 566c (Fla. 11th Cir., December 29, 1995).
Therefore, even though State Farm requested an Examination Under Oath, in the instant case, subsequent to suit being filed, Veronica Jones was still required to appear at the Examination Under Oath, as the Examination Under Oath requirement, under Ms. Jones’ policy was still a material term and requirement under the policy. An insured’s refusal to comply with a demand for an Examination Under Oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy. Southern Homes Ins. Co. v. Putnal, 57 Fla. 1999, 49 So. 9222, 932 (Fla. 1909); Goldman @ 303.
In analogous cases, where the terms of the insurance policy require that the insured submit to other types of examinations, such as independent medical examinations, Florida courts have held that the insured’s willful refusal to submit to such examination constitutes a material breach which bars recovery. See Griffin v. Stonewall Ins. Co., 346 So.2d 97 (Fla. 3d DCA 1977); DeFerrari v. Government Employees Ins. Co., 613 So.2d 101 (Fla. 3d DCA 1993); Allstate Ins. Co. v. Graham, 541 So.2d 160 (Fla. 2d DCA 1989); Tindall v. Allstate Ins. Co., 472 So.2d 1291 (Fla. 2d DCA 1985).
Additionally, the Examination Under Oath provision of State Farm’s policy can be considered a “cooperation clause.” The purpose of a cooperation clause is to prevent fraud and collusion in proceedings to determine liability once notice has been given. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985). In theinstant case, Ms. Jones’ failure to appear for her Examination Under Oath, would also violate the “cooperation clause” set forth in her State Farm policy.
Subject to the ordinary standards of reasonableness and fairness, if a claimant does not cooperate with the policy EUO provisions, he or she is not entitled to PIP benefits. Insureds and assignees must comply with the contractual EUO and cooperation clauses as a condition precedent to seeking coverage. The Prudential Property and Casualty Insurance Company of New Jersey v. Richard J. Nardone, D.C., 332 N.J. Super. 126; 752 A.2d 859 (2000).
An insured’s failure to attend an Examination Under Oath also constitutes a material breach of the terms of the policy of insurance, regardless of whether requested before or after the filing of a lawsuit. See Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300, 303 (Fla. 4th DCA 1995); Stringer v. Fireman’s Fund Insurance Company, 622 So.2d 145, 145 (Fla. 3rd DCA1993); Jorge Candanosa v. U.S. Security Insurance Co., 3 Fla. L. Weekly Supp. 566c (Fla. 11th Cir., December 29, 1995).
The giving of a recorded statement or the taking of depositions with both sides present does not constitute substantial compliance with the policy conditions. Pervis v. State Farm & Casualty Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899 (1990). Insured’s agreement to sit for deposition following suit did not satisfy spirit of insurance policy mandating examinations under oath. Archie v. State Farm Fire & Cas. Co., 813 F. Supp. 1208, 1213 (S.D. Miss. 1992).
The Plaintiff’s argument that State Farm is not entitled to an Examination Under Oath of Ms. Jones is fallacious and in requesting Motion for Protective Order, the Plaintiff, in essence, asks this Court to approve a breach of a material term of Ms. Jones’ policy and cooperation clauses. The Courts are crystal clear that an insured is required under the material terms of the policy and cooperation clauses to appear for an Examination Under Oath. There is absolutely no time frame within which State Farm waives its right to request an Examination Under Oath.
Even though the Plaintiff argues that since State Farm failed to request an Examination Under Oath prior to suit, Ms. Jones’ failure to attend an Examination Under Oath cannot constitute a breach of a condition precedent, Ms. Jones’ is still required to attend an Examination Under Oath, as it is still a material term and condition and part of the cooperation clause, under Ms. Jones’ policy.
Although the Plaintiff attempted to utilize the case of Willis v. Huff, at the February 26, 2003 hearing to support their position, the Defendant’s position that it is entitled to request and take the Examination Under Oath of its insured after a lawsuit has been filed is actually bolstered by Willis case. See Willis v. Huff, 736 So.2d 1272 (Fla. 4th DCA 1999). Plaintiff’s reliance on Willis v. Huff is misplaced as the case stands for the proposition that an insurer is entitled to take the Examination Under Oath of its insured regardless of whether the request is made prior to or after the filing of a lawsuit. See id. The facts in Willis v. Huff are virtually identical to the instant case, in that the insurer requested an Examination Under Oath after a lawsuit was filed, and the Fourth District Court of Appeal held: “Where, as here, the insurer had not made the request for the EUO prior to suit being filed, the trial court should have allowed Willis to comply, rather than deprive him of his UM coverage.” Id. at 1274.
Further, Plaintiff’s argument that Defendant should be forced to take a deposition of the insured in lieu of an Examination Under Oath after the filing of a lawsuit is without merit. See Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300 (Fla. 4th DCA 1995).
[T]he policy does not expressly provide that depositions may be substituted for examinations under oath as appellants suggest. Instead, the policy requires separate examinations under oath for each insured. The trial judge declined to equate depositions with examinations under oath noting that ‘there is a big difference between taking a sworn statement under the provisions of this contract and taking of a deposition. It’s a horse of another color. Id. at 302, fn. 3.
The Fourth District then explained the vastly different purposes served by depositions and examinations under oath:
First, the obligation to sit for an examination under oath is contractual rather than arising out of the rules of civil procedure. Second, an insured’s counsel plays a different role during examinations under oath than during depositions. Third, examinations under oath are [frequently, but not always] taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claims investigation process. Fourth, an insured has a duty to volunteer information related to the claim during an examination under oath in accordance with the policy while he has no such obligation in a deposition. Finally, the insurer has the right to examine insured independently in sworn examinations while it would have no parallel right to do so under the Florida Rules of Civil Procedure.
“The object of the policy provision is to enable the insurer to possess itself of all knowledge and all information as to other sources and means of knowledge, in regards to the facts, material to its rights, to enable it to decide upon its obligations and to protect it against false claims.” Id. (citing Claflin v. Commonwealth Ins. Co., 110 U.S.81 (1884)). And an insurer “will be deprived of a valuable right for which it has contracted” when an insured fails to comply with a policy provision requiring the insured sit for an examination under oath. Id. at 306, fn. 9.
Moreover, it is the general rule that attorneys for one party in a pending cause are free to interview the other party’s intended witnesses without the consent or presence of opposing counsel. Devlin v. L.D. Rosman, 205 So.2d 346 (Fla. 3d DCA 1967). Furthermore, any party to a suit is entitled to depose or take statements [emphasis added] from witnesses. In fact witness statements are generally considered work product of the party taking the statement. Landrum v. Tallahassee Memorial Regional Medical Center, et al., 525 So. 2d 994 (Fla. 1st DCA 1988); State Farm Fire and Casualty Company v. Valido, 662 So.2d 1012 (Fla. 3d DCA 1995).
In the instant case, Veronica Jones is merely a witness as the party Plaintiff is assignee, All Health Chiropractic, who accepted an assignment of benefits from Ms. Jones. Thus, similarly to any case, State Farm is absolutely permitted to take Ms. Jones’ statement outside the Plaintiff’s presence and can take it in any manner (sworn or unsworn) as State Farm sees appropriate. Since State Farm’s policy allows State Farm to take an Examination Under Oath of their insured, State Farm has chosen to avail themselves of that method.
Based upon the above-cited cases, and most specifically, based upon Plaintiff’s sole and misplaced reliance on Willis v. Huff, 736 So.2d 1272 (Fla. 4th DCA 1999), Plaintiff’s Motion for Protective Order is denied. Defendant is entitled to take the Examination Under Oath of its insured, regardless of whether it was requested before or after a suit was filed, because it is a material term of the policy of insurance and part of the cooperation clauses set forth in the insured’s policy.
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