12 Fla. L. Weekly Supp. 833b
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insured’s counsel sent letter stating it was necessary for him to be present at EUO despite PIP policy providing that only person being examined could be present and offering to arrange to have EUO taken at his office or over telephone, but insurer did not respond and scheduled EUO, question of whether refusal to attend EUO was unreasonable created issues of fact precluding summary judgment
FELICIA HUDSON, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-298 AP. June 14, 2005. An appeal from the County Court, Wendell M. Graham, Judge. Counsel: Lauri W. Ross, for Appellant. Michael J. Neimand, for Appellee.
(Before PAUL SIEGEL, MICHAEL GENDEN, and MICHAEL CHAVIES, JJ.)
(SIEGEL, J.) Hudson was a passenger in an automobile insured under a PIP policy issued by United Automobile Insurance Company (“United Auto”). The vehicle was involved in a collision with another vehicle and Hudson was injured. Pursuant to the insurance policy, only the person being examined could be present during the examination under oath (EUO). Counsel for Hudson sent a letter to United Auto stating that as her attorney, it was necessary for him to be present at her statement. The letter further offered to arrange to have the EUO taken at his office, or over the telephone. United Auto did not respond to the letter. Subsequent to the letter, United Auto scheduled Hudson for an EUO at their offices and did not address the issue of the presence of counsel.
Hudson filed an action in the county court for declaratory relief seeking to have the EUO provision declared void on public policy grounds. United Auto filed an affirmative defense alleging that Hudson failed to comply with a condition precedent by failing to attend the scheduled EUO. Cross-motions for summary judgment were filed. The trial judge entered judgment in favor of United Auto, finding an unreasonable failure to appear by Hudson.
Hudson contends that under the circumstances of this case, whether her “refusal” to attend the EUO was unreasonable created issues of fact, precluding summary judgment in favor of United Auto. We agree. If the insured cooperates to some degree or provides an explanation for noncompliance with policy provisions that are prerequisites to suit, a fact question is presented for jury resolution. Diamonds & Denims, Inc. v. First Georgia Ins. Co., 203 Ga. App. 681, 417 S.E.2d 440, 441-442 (Ga. Ct. App. 1992).
The summary judgment entered by the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion. (GENDEN and CHAVIES, JJ., concur.)
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(GENDEN, J., concurring with opinion.) While the majority does not think it is necessary to address the issue that the contract provision violates public policy, I agree with Hudson. If counsel is entitled to be present at an independent medical examination pursuant to U.S. Security Insurance Co. v. Ciminio, 754 So. 2d 697 (Fla. 2000), counsel should be present at an EUO, which can subject an insured to a charge of perjury. This issue should be addressed by the trial court upon remand.
REVERSED and REMANDED.
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