11 Fla. L. Weekly Supp. 748c
Insurance — Personal injury protection — Coverage — Denial — Examination under oath — Failure to attend — Motion to strike affirmative defense denied — Failure to attend EUO is affirmative defense to action under PIP policy even in action for declaratory relief — Questions of fact as to whether insurer failed to timely request EUO or failed to permit insured to audiotape EUO are not appropriate to consider under motion to strike
TASHANA K. BROWN, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-000063 COSO 62. June 1, 2004. Robert W. Lee, Judge. Counsel: Russel Lazega, North Miami, for Plaintiff. Thomas A. Freehling, Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONTO STRIKE AFFIRMATIVE DEFENSE
THIS CAUSE came before the Court on May 20, 2004 for hearing of the Plaintiff’s Motion to Strike Affirmative Defense, and the Court’s having reviewed the Motion; reviewed the entire Court file; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background. The Plaintiff has filed this action for declaratory relief, seeking a determination that the “Defendant is obligated to extend Plaintiff personal injury protection coverage.” The Defendant filed an Answer which asserted an affirmative defense: that the Plaintiff failed to submit to a properly scheduled and noticed examination under oath (EUO) as required by Florida P.I.P. law. The Plaintiff filed her Motion to Strike Affirmative Defense, claiming that the Defendant failed to timely request an EUO; that the Defendant failed to permit Plaintiff to audiotape the EUO; and that failure to appear for an EUO is not a defense to coverage.
Conclusions of Law. The Plaintiff raises two types of objection to the defense, one raising questions of fact, and the other a question of law. As to the questions of fact, the Court finds that such issues are not appropriate to consider under a motion to strike. Whether the record establishes that the Defendant failed to timely request an EUO or failed to permit the Plaintiff to audiotape the EUO are not questions which can be resolved on a motion to strike defense, which is in essence the same vehicle as a motion to dismiss complaint. As is generally known, a motion to dismiss is limited to the four corners of the complaint, and this Court believes the same limitation applies to a motion to strike defenses.
The questions of law raised by the Defendant is whether failure to appear for an EUO is a defense to an action under an insurance policy. For purposes of P.I.P. coverage, this Court finds that it is, even if raised against an action for declaratory relief. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Motion to Strike Affirmative Defense is DENIED.
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