15 Fla. L. Weekly Supp. 483b
Insurance — Personal injury protection — Claimant’s failure to appear at examination under oath — Where the insured attempted to provide a reason for his failure to appear at his EUO, a genuine issue of material fact remains, precluding summary judgment on behalf of insurer
ALFONSO PROFESSIONAL MED., A/A/O HAROLD RUIZ, Plaintiff, v. STATE FARM MUTUAL AUTO. INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-14854 SP 05 (06). September 28, 2007. Brownwyn C. Miller, Judge. Counsel: Maria E. Corredor and Lina Husseini, Law Offices of Maria E. Corredor, P.A., Miami, for Plaintiff. Gregory P. Hengher.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on September 19, 2007 on Defendant’s Motion for Summary Judgment and the Court having considered the merits of said motion, heard the argument of counsel, considered all relevant legal authority and summary judgment exhibits, it is hereby ORDERED and ADJUDGED as follows:
The deposition of the adjustor reveals that the insured attempted to provide a reason or excuse for failing to appear at the examination under oath. See, Deposition of Douglas Goldman dated August 21, 2007. Thus, this presents a genuine issue of material fact that precludes summary judgment. See, United Automobile Ins. Co. v. Custer Medical Ctr. __ So.2d __ , 2007 WL 2480528 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2105a ] (Affirming the entry of a directed verdict for the insurer in the absence of a reason or excuse for failingto appear at an examination under oath); Haiman v. Federal Insurance Co., 798 So. 2d 811 (Fla. 4th DCA 2001) (If the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury); Felicia Hudson v. United Automobile Insurance Co., 12 Fla. L. Weekly Supp. 833 (11th Cir. App. June 14, 2005) (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).
WHEREFORE, Defendant’s Motion for Summary Judgment is hereby DENIED.
