11 Fla. L. Weekly Supp. 137a
Insurance — Personal injury protection — Insured’s failure to submit to examination under oath constituted failure to comply with condition precedent and willful and material breach of insurance contract which precludes insured’s recovery under policy
DAVID MCCRANEY, M.D., (a/a/o Teresa Calderon), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-3353-SC. Division L. September 5, 2003. Artemeus E. McNeil, Judge. Counsel: Joseph Hunt. C. Daniel Petrie, Jr.
FINAL SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE having come to be heard upon the motion of July 8, 2003, of Defendant, Progressive Express Insurance Company, for Final Summary Judgment or Summary Disposition, and the Court having heard the argument of counsel and being otherwise fully advised in the premises it is,
ORDERED AND ADJUDGED AS FOLLOWS:
1. There is no dispute of material fact in this matter. The following findings of fact are made by the court:
A. Teresa Calderon failed to appear for the taking of her examination under oath on July 7, 2003, in spite of being advised in writing of this examination by way of a certified letter, return receipt requested, signed for by Teresa Calderon on May 5, 2003.
B. Teresa Calderon did not contact counsel for the defendant with any explanation for her failure to attend her July 7, 2003, examination.
2. There is no material issue of Florida law in this matter. The Court makes the following conclusions of law:
A. Failure to submit to an examination under oath is a material breach of the insurance policy which will relieve the insurer of its liability to pay. See Stringer v. Fireman’s Fund Ins. Co., 622 So. 2d 145, (Fla., 3rd DCA, 1993).
B. 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 form recovery under the policy. An insurer need not show prejudice when the insured breaches a condition precedent to suit. Policy provisions requiring the insured to submit to examinations under oath are conditions precedent to suit rather than cooperation clauses. See Goldman v. State Farm Fire Gen. Ins., 660 So.2d 300, (Fla., 4th DCA, 1995).
C. An insured is required to submit to a statement under oath as the condition precedent to coverage under a PIP/No-Fault policy. See Bowman v. Armor Insurance Company, 4 Fla. L. Weekly Supp. 375a, (Cir. Ct. Hillsborough County, 1996).
3. Defendant, Progressive Express Insurance Company is entitled to a Final Summary Judgment or Summary Disposition in defense of this claim which is hereby granted. Plaintiff, David McCraney, M.D., a/a/o Teresa Calderon, shall take nothing by this action from Defendant, Progressive Express Insurance Company, who shall go hence without day. This Court retains jurisdiction of this matter to tax costs.
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