11 Fla. L. Weekly Supp. 459a
Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath — Motion for protective order to disallow EUO or require taking of deposition in lieu of EUO after filing of suit is denied — Defendant is entitled to take EUO of insured without attendance of provider/assignee’s counsel, regardless of whether EUO was requested before or after suit was filed, where submission to EUO is material term of insurance policy and part of cooperation clauses of policy
RICHARD J. ROBINSON, D.C., P.A. a/a/o DAWN HORSTMAN, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-2619-SC. Div. K. January 6, 2004. Eric R. Myers, Judge. Counsel: David W. Lipscomb, Tampa, for Plaintiff. Scott W. Dutton, Haas, Dutton, Blackburn, Lewis & Longley, Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER REGARDING EXAMINATION UNDEROATH OF DEFENDANT’S INSURED
THIS CAUSE having come before the Court on December 8, 2003 on Plaintiff’s, RICHARD J. ROBINSON, D.C., P.A. a/a/o DAWN HORSTMAN Motion for Protective Order, and the Court, having heard argument of counsel, reviewed the Motion, the insurance policy, and relevant briefs and case law, and being fully advised in the premises, it is hereupon: ORDERED AND ADJUDGED that Plaintiff’s Motion for Protective Order is denied. The Defendant, Progressive is entitled to take the Examination Under Oath of its insured, Dawn Horstman before or after the filing of a lawsuit by the Plaintiff, and without the attendance of Plaintiff’s counsel on the following grounds:
Dawn Horstman, a non-party, is an insured of Defendant, Progressive. In accordance with the provision of the insurance contact by and between Progressive and their insured, Progressive, through their counsel, scheduled an examination under oath of the insured, Dawn Horstman scheduled for July 29, 2003. Pursuant to the policy of insurance with the Defendant Ms. Horstman has certain duties and obligations to include, but not limited to:
Submit, as often as we reasonably require:
…
b. to examination under oath and subscribe the same.
On May 1, 2003 counsel for Progressive wrote a letter to Ms. Horstman enclosing a notice of taking examination under oath and “Exhibit A”, this letter of May 1, 2003 was sent certified mail return receipt requested. On July 15, 2003, Dawn Horstman, contacted counsel for Progressive stating that she was unable to attend the examination under oath scheduled for July 16, 2003. Counsel for the Defendant agreed to reschedule the examination under oath for July 23, 2003 @ 10:30 a.m. On July 23, 2003, the assignor, Dawn Horstman, did not appear for the examination under oath that she agreed to pursuant to the telephone conversation with counsel for Defendant on July 15, 2003. Attached to the Defendant’s motion as “Exhibit D” is the affidavit of C. Daniel Petrie, Jr., then counsel for Defendant regarding the foregoing.
Ms. Horstman’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract that precludes the insured from recovery under the policy. Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922,932 (Fla.1909) (insured’s refusal to comply with policy condition that insured submit to an examination under oath “will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such condition”); Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA), review denied, 630 So.2d 1101 (Fla.1993) (the failure to submit to an examination under oath is a material breach of the insurance policy which will relieve the insurer of the obligation to pay under contract). Other jurisdictions have similarly interpreted the examination under oath requirement of an insurance policy, holding that failure to submit to examination under oath is a material breach of the policy terms and a condition precedent to an insured’s right to recover and/or bring suit under the policy. See, e.g., Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990) (policy provision requiring the insured to take an examination under oath was a condition precedent to suit and that noncompliance constituted a material breach justifying the entry of summary judgment); Fineberg v. State Farm Fire & Cas. Co., 113 N.C.App. 545, 438 S.E.2d 754, review denied, 336 N.C. 315, 445 S.E.2d 395 (1994) (failure to comply with insurance policy condition of submission to examination under oath bars recovery under policy as well as the right to bring suit under policy); Watson v. National Sur. Corp., 468 N.W.2d 448 (Iowa 1991); see also 5A J. Appleman & J. Appleman, Insurance Law & Practice § 3549, at 549-50 (1970) (citing jurisdictions which hold that failure to submit to an examination under oath constitutes material breach and is a defense to an action on the policy); 13A G. Couch, Couch on Insurance 2d § 49A:361, at 759 (M. Rhodes rev. ed. 1982); 44 Am.Jur.2d Insurance § 1364, at 290-91, § 1366 at 294 (1982); Christopher Vaeth, Annotation, Requirement Under Property Insurance Policy That Insured Submit To Examination Under Oath As To Loss, 16 A.L.R.5th 412 (1993).
Plaintiff claim that the Defendant should be disallowed from taking an examination under oath of their insured because the Plaintiff has filed a lawsuit against the Defendant. Conditions, such as attending examinations under oath, in policies of insurance are part of the consideration for assuming the risk, and the insured, by accepting the policy, becomes bound by these conditions. There are two kinds of conditions — precedent and subsequent. A condition precedent is one that is to be performed before the contract becomes effective, while a condition subsequent pertains to the contract of insurance after the risk has attached and during its existence.” 30 Fla.Jur.2d Insurance, § 567.
The duties Ms. Horstman owes under her contract with Progressive are not subject to this lawsuit in that the contractual relationship, and matters to be handled pursuant to that contract, falls outside the scope of this litigation by and between. and Progressive. 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 examinations 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), review denied, 620 So.2d 760 (Fla.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), review denied, 484 So.2d 10 (Fla.1986).
Rather, that contractual investigation, if it is to take place at all, is to take place by and between Ms. Horstman and Progressive pursuant to the policy contract. Importantly, for example, Progressive may want to investigate matters with Ms. Horstman that might fall out of the scope of any treatment or care she would have received with the Plaintiff, Richard J. Robinson, D.C., P.A. Such an investigation would be Progressive’s work product. The investigation, pursuant to the policy, is far outside the scope of any rights Richard J. Robinson, D.C., P.A. has or may have pursuant to the Statute and applicable case law.
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 also legally without merit. See Goldman v. State Farm Fire General Insurance Company, 660 So.2d 300 (Fla. 4th DCA 1995) wherein the court stated: [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. It is inappropriate to equate depositions with examinations under oath. According to the Goldman court: “ ‘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. Goldman v. State Farm Fire General Insurance Company, 660 So.2d at 302, fn. 3.
In Goldman the Fourth District 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).
A good discussion of this issue is also found in county court cases such Physician’s First Choice Interpretation a/a/o Renand Cadet v. Nationwide Assurance Company, 10 Fla. L. Weekly Supp. 920a (County Court, 11th Judicial Circuit in and for Dade County, 2003) where in an order denying a plaintiff’s motion for protective order on similar grounds the court stated:
Pursuant to Defendant’s insurance policy, Defendant is entitled to conduct an Examination Under Oath of those seeking benefits under the subject policy. Specifically, Defendant’s policy of insurance 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.
In Physician’s First Choice the insurer noticed the taking of Examination Under Oath Duces Tecum of the insured. In response the Plaintiff filed its Motion for Protective Order, contending that an Examination Under Oath is improper once suit is filed and that Defendant must take the insured’s deposition instead because the Florida Rules of Civil Procedure were invoked at the Pretrial Conference.
The Court found “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). The court continued its ruling by explaining:
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.”
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).
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, 10Fla. L. Weekly Supp. 449 (County Court, 15th Judicial Circuit in and for Palm Beach County, 2003) (and cases cited tberein). Therefore, regardless of the fact that NATIONWIDE requested the Examination Under Oath after suit was filed, Renand Cadet 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.
Similarly, in and case cited in the Physician’s First Choice case, 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), the court ruled on a plaintiff’s motion for protective order relating to the insurers desire to take their insured’s examination under oath. There, like Physician’s First Choice Interpretation a/a/o Remand Cadet, Plaintiff, v. Nationwide Assurance Company case the court held the insurer is entitled to take the Examination Under Oath of its insured, before or after the filing of a lawsuit by an assignee. In the decision the court went into a deeper discussion of the role of examinations under oath in the investigation of claims:
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., 3 Fla. 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 the instant case, Ms. Jones’ failure to appear for her Examination Under Oath, would also violate the “cooperation clause” set forth in her State Farm policy.
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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., 901F.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).
Just as in the cited cases above the Plaintiff’s argument that Progressive is not entitled to an Examination Under Oath of Ms. Horstman 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. Horstman’s 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 Progressive waives its right to request an Examination Under Oath.
Based upon the above-cited cases Plaintiff’s Motion for Protective Order is Denied. Defendant is entitled to take the Examination Under Oath of its insured without the attendance of Plaintiff’s counsel, 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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