12 Fla. L. Weekly Supp. 262b
Insurance — Personal injury protection — Declaratory judgment — Examination under oath — Right of insured to record — Where insurance contract is silent as to right to record EUO, court cannot write in provision permitting recording — However, where insurer was unable to present any argument that presence of audiotape was unreasonable or that recording would have hindered or obstructed performance of EUO in any way, insurer’s refusal to proceed with EUO when insured desired to audiotape examination was inappropriate — Summary judgment granted in favor of insured
TASHANA BROWN, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-63 COSO (62). January 5, 2005. Robert W. Lee, Judge. Counsel: Russel Lazega, North Miami, for Plaintiff. Thomas A. Freehling, Coral Gables, for Defendants.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on January 4, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion, Court file, and relevant legal authorities; having heard argument; and having been sufficiently advised in the premises, the Court hereby finds as follows:
Background. On December 29, 2003, the Plaintiff filed its action for declaratory relief, seeking a declaration that she was entitled to audiotape her examination under oath (EUO) required under her insurance contract with the Defendant. The following facts are undisputed. Prior to initiation of this action, the Plaintiff made a claim for PIP benefits on her insurer. The insurance policy provided that the insurer could require the insured to submit to an examination under oath pertaining to the claim. The insurer did so. The insured showed up for the EUO with her attorney, who desired to audiotape the examination. The insurer had no objection to the presence of the insured’s attorney, but objected to the examination being recorded on tape. When the insured’s attorney insisted that the EUO be recorded, the insurer refused to proceed with the examination. The insurer has declined to pay the claim, based in part on the Plaintiff’s refusal to submit to an EUO.
Conclusions of Law. Both parties agree that no reported case has addressed the specific issue of whether an insured can record an examination under oath. Although there is case law on the issue of the ability to record the statutorily required independent medical examination (IME), there is no apparently no reported case on the issue of the ability to record a contractually required examination under oath (EUO). As a result, the Court initially addresses the matter under contract law. It is undisputed that the insurance contract does not address whether an insured may record the examination under oath. Courts do not have the power to rewrite, alter or change a contract. 11 Fla. Jur. 2d Contracts §137 (2003). If a contract is silent on a matter, a court cannot generally add a requirement of performance. Therefore, this Court cannot write into the contract a provision that the insured is contractually permitted to record the EUO. That does not, however, end the inquiry.
The parties have advised the Court that is undisputed that the insurer is declining payment of benefits in part due to the failure of the Plaintiff to submit to an EUO. In essence, the insurer is claiming that it can add a requirement to the contract that the EUO not be recorded, and then seek to hold the insured in breach when she insists on recording the EUO. In such an instance, it is the insurer and not the insured who is seeking to add a term to the contract. Florida law provides that a breach may occur when a party takes an action not contemplated by the contract, if that action “hinders or obstructs” the other party in performing under the contract. Id. §252. See also Hanover Realty Corp. v. Codomo, 95 So.2d 420, 423 (Fla. 1957); Paul v. Hurley, 315 So.2d 536, 538 (Fla. 4th DCA 1975); Melvin v. West, 107 So.2d 156, 160 (Fla. 2d DCA 1958); Moylan v. Estes, 102 So.2d 855, 857 (Fla. 3d DCA 1958). Therefore, if the action taken by the Plaintiff hinders or obstructs the Defendant in performing under the contract, then the insurer may claim the Plaintiff to be in breach. In this case, however, the Defendant was unable to articulate any way in which the audiotaping might hinder or obstruct the EUO. The insurer merely claims that the EUO is an investigatory tool provided to the insurer, and it can decline to allow it to be recorded. This is insufficient to suggest any type of hindrance or obstruction.
In the instant case, the Plaintiff sought to record the EUO with a small, almost hand-sized tape recorder. No other equipment was involved. Nothing presented to the Court suggested that this in any way would have hindered or obstructed the performance of the EUO. Mere dislike of something does not make it a hindrance or obstruction.
The Court also considers whether by analogy the law developed for IME would likewise apply to EUO. The parties acknowledge that although the IME statute is silent on the right to record the procedure, the Florida courts have held that the right to record nonetheless exists. U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). The Defendant argues that the contractual obligation to submit to an EUO is not analogous to the statutory obligation to submit to an IME. However, the Court notes several areas of similarity. First, the Florida Supreme Court noted in Cimino that the obligation to submit to an IME was not only required by statute, but also by the insurance contract. Id. at 698-99. Second, the Court noted that it was the “combined effect of the statute and the policy” which gave rise to the requirement of attending an IME to continue receiving PIP benefits. Id. at 699 (emphasis added). Third, like contract law, the Cimino court found that the right to record was subject to exceptions for “valid reasons” to bar the recording, similar to the “hindrance or obstruction” exception for contract law. Id. Finally, the Supreme Court focused much on the adversarial nature of the examination. As stated by the Court:
A PIP examination is a potential step in the direction of litigation. The insured is claiming an entitlement to continued benefits and the insurer is questioning the necessity for same. In order to continue receiving benefits the insured must comply with the requirements of the insurance contract and [the statute]. The insured is required to comply with a PIP examination in order to receive the contractual benefits. The insured and the insurer are certainly not in agreement at this point.
Id. at 701 (emphasis added). The same rationale applies for contractually required examinations under oath.
Moreover, as a matter of law, “Florida follows a liberal view when determining whether attorneys may attend examinations.” Id. at 700. This may well be why the Defendant is not contesting the attorney’s right to attend the EUO. The Florida Supreme Court has extended this right to taping the examination. See id. at 702. Such a right is not, however, without limitations. In accordance with general contract law, the right to record an examination is subject to the requirement that the party not be hindered or obstructed in performing under the contract. The Cimino court couched the requirement similarly: “the burden is on the party opposing the [request] to prove that the [request] is unreasonable.” Id. In the instant, there is no disputed material fact. The Defendant was unable to present any argument that the presence of the audiotape was unreasonable, or that it hindered or obstructed the performance of the EUO. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. The Court finds that the Defendant inappropriately declined to proceed with the examination under oath when the Plaintiff desired to audiotape the examination.
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