10 Fla. L. Weekly Supp. 919a
Insurance — Personal injury protection — Examination under oath — Motion for protective order to prevent insurer from taking EUO of insured after filing of PIP suit is denied — No merit to argument that EUO is improper once suit is filed where insurance policy does not provide any time frame within which insurer waives right to request EUO, and requirement to submit to EUO remains material term of policy even after suit is filed — Taking of deposition does not constitute substantial compliance with policy condition requiring submission to EUO
PHYSICIAN’S FIRST CHOICE INTERPRETATION a/a/o Visita Timothe, Plaintiff, v. NATIONWIDE ASSURANCE COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 03-04639 SP 05 (01). Shelley Kravitz, Judge. Counsel: David S. Lefton, Law Offices of William J. Capito, Plantation. Spencer G. Morgan.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
THIS CAUSE having come before the Court on July 8, 2003, on Plaintiff’s, PHYSICIAN’S FIRST CHOICE INTERPRETATION a/a/o Visita Timothe, Motion for Protective Order, and the Court, having heard argument of counsel, reviewed the Motion, the insurance policy, and relevant case law, and being fully advised in the premises, it is hereupon:
ORDERED AND ADJUDGED:
1. On or about March 12, 2003, Plaintiff filed the instant lawsuit seeking recovery of personal injury protection benefits, pursuant to an Assignment of Benefits, for injuries Defendant’s policyholder allegedly sustained in a December 5, 2002 automobile accident.
2. Pursuant to Defendant’s insurance policy, Defendant is entitled to conduct an Examination Under Oath of its policyholder and those seeking benefits under the subject policy. Specifically, Defendant’s policy of insurance with Visita Timothe provides that “[t]he insured, will . . . 4. submit to examinations under oath as often as reasonably requested by us. 5. assist us and, if applicable, the defense counsel chosen for you by us with any claim or suit. . . . 8. provide all records and documents we reasonably request and permit us to make copies.” The policy defines “insured” as “one who is described as entitled to protection under each coverage.”
3. On May 3, 2003, NATIONWIDE noticed the taking of Examination Under Oath Duces Tecum of Visita Timothe. The Examination was to take place on June 12, 2003.
4. On June 12, 2003, Plaintiff filed its Motion for Protective Order, contending that an Examination Under Oath is improper once suit is filed and that Defendant must take Visita Timothe’s deposition instead because the Florida Rules of Civil Procedure were invoked at the Pretrial Conference. Plaintiff’s argument is without merit since the insurance policy at issue provides no time frame within which NATIONWIDE waives its right to request an Examination Under Oath. See All Health Chiropractic, a/a/o Veronica Jones v. State Farm Mutual Automobile Insurance Company, 10 Fla. L. Weekly Supp. 449 (County Court, 15th Judicial Circuit in and for Palm Beach County, 2003).
5. NATIONWIDE’s insurance policy does not provide, either expressly or implicitly, that depositions may be substituted for examinations under oath. Rather, the policy requires separate examinations under oath for each “insured.” As the trial court stated in Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300, 302 n. 2 (Fla. 4th DCA 1995), “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.”
6. The Goldman court then went on to explain why the taking of a deposition does not constitute substantial compliance with the policy condition of submitting to an examination under oath:
The policy does not provide that depositions may be substituted for examinations under oath as appellants suggest. Rather, depositions and examinations under oath serve vastly different purposes. 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 taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claim 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 would have no such obligation in a deposition. Finally, the insurer has the right to examine [the] insured independently in sworn examinations while it would have no parallel right to do so under the Florida Rules of Civil Procedure.
Id. at 305 (emphasis added).
7. Moreover, an examination under oath is not only a condition precedent to filing a lawsuit it is also a material term of the insurance policy. See All Health Chiropractic, a/a/o Veronica Jones v. State Farm Mutual Automobile Insurance Company, 10 Fla. L. Weekly Supp. 449 (County Court, 15th Judicial Circuit in and for Palm Beach County, 2003) (and cases cited therein). Therefore, regardless of the fact that NATIONWIDE requested the Examination Under Oath after suit was filed, Visita Timothe was still required to submit to the Examination because the requirement to appear was still a material term of 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.” Id.
8. Accordingly, Plaintiff’s Motion is DENIED. Defendant, NATIONWIDE ASSURANCE COMPANY, is entitled to take the Examination Under Oath of its insured, Visita Timothe.
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