11 Fla. L. Weekly Supp. 345c
Insurance — Personal injury protection — In order to be condition precedent, examination under oath must be requested before suit is filed
LAKELAND SPINE CENTER, (a/a/o Cynthia Tolentino), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2003-5684-SC-I. February 2, 2004. Charlotte W. Anderson, Judge. Counsel: Joseph E. Nicholas, Lipscomb & Nicholas, P.A., for Plaintiff. Randall Wainoris, Hass, Dutton, Blackburn, Lewis & Longley, for Defendant.
ORDER
THIS CAUSE having come on for hearing on January 22, 2004, on Defendant’s Motion for Summary Judgment, and the Court being fully advised in the premises, as follows:
1. That the Plaintiff filed this cause of action on March 11, 2003.
2. That the Defendant sent notice to the insured on April 6, 2003 requesting the insured attend and take an Examination Under Oath.
3. That the Defendant made two more attempts to schedule the insured to attend and take an Examination Under Oath.
4. That the Examination Under Oath of the insured was finally scheduled for September 11, 2003.
5. That the insured failed to attend the Examination Under Oath previously scheduled for September 11, 2003 by Defendant.
6. That the defendant insurer seeks in its Motion for Summary Judgment to be relieved of its liability to pay either the insured or the assignee health care provider based on the insured’s failure to attend and take the scheduled Examination Under Oath.
7. Moreover, the Defendant alleges in its motion that the failure of the insured to attend and take the Examination Under Oath was a material breach of the insurance contract and a condition precedent to bring suit under the policy.
7. That the instant lawsuit was filed prior to any request for an examination under oath by the Defendant.
8. That this Court adopts the holding of Willis v. Huff, 736 So.2d 1272 (Fla. 4th DCA 1999) which states that “. . .The EUO, in order to be a condition precedent, must be requested before suit is filed.”
It is thereby ordered ORDERED and ADJUDGED that
Defendant’s Motion for Summary judgment is DENIED.
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