10 Fla. L. Weekly Supp. 731c
Insurance — Personal injury protection — Examination under oath — Affirmative defense that insured violated condition precedent to suit by unreasonably refusing to submit to examination under oath is barred where policy language is ambiguous as to duties of insured or conditions precedent to filing suit
ARMANDO SALAZAR, Plaintiff, vs. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 99-324 CC 05. Section 02. October 18, 2000. Linda Dakis, Judge. Counsel: Charles Vaccaro, Lidsky, Vaccaro, & Montes, P.A., for Plaintiff. Jill Johnson, Dracos & Assoc., for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGEMENT
THIS CAUSE having come on to be heard on 9/21/2000 on Defendant’s Motion for Summary Judgement and on Plaintiff’s Motion for Partial Summary Judgement and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby The Defendant seeks Summary Judgement contending plaintiff has violated a condition precedent to the filing of a lawsuit for P.I.P. benefits i.e. plaintiff failed to submit to an Examination Under Oath prior to suit.
Plaintiff seeks Summary Judgement as to the affirmative defense raised by United i.e. plaintiff Salazar unreasonably refused to attend the Examination Under Oath precluding payment of P.I.P. benefits.
In reaching its ruling, the Court has reviewed the pleadings, the affidavits, transcript of the hearing, the insurance policy particularly Conditions, page 14, Duties, pages 15 & 16, together with case law. The Court has also reviewed the decisions of Judge Jose Rodriguez and Judge Leo Adderly in the Gonzalez and Sarabia cases attached to Plaintiff’s memo. The insurance policy provision imposes written proof of claim under oath, if required, and/or (emphasis) submit to an Examination Under Oath creates an ambiguity as to the duties of an insured or conditions imposed prior to filing suit. This “ambiguity” bars use by United of its Affirmative Defense and the Court enters Partial Summary Judgement in favor of plaintiff Salazar.
As to defendant’s motion, the pleadings create a factual issue and accordingly, the court denies Defendant’s request.
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