15 Fla. L. Weekly Supp. 599a
Insurance — Automobile — Examination under oath — Failure to attend — Where insured failed to comply with three demands to submit to EUO regarding claim for insured vehicle that was stolen and burned while in his possession, insured willfully and materially breached policy, and coverage is precluded — Neither submission of co-insured to EUO nor recorded statement given by insured satisfies requirement that insured submit to EUO — Where co-insured filed suit before EUO condition of policy was satisfied by insured, neither law nor facts support application of innocent co-insured doctrine
CARIDA RIVERA, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 07-CA-5649, Div. 39. April 21, 2008. Cynthia Z. Mackinnon, Judge. Counsel: Daniel Gutierrez, The Coury Law Firm, P.A., Lake Mary. Robert A. Kingsford, Marshall, Dennehey, Warner, Coleman & Goggin, Orlando.
FINAL SUMMARY JUDGMENT IN FAVOR OF STATE FARM
This cause having come to be heard on February 26, 2008, before the Honorable Cynthia Z. Mackinnon on the November 5, 2007 Motion for Summary Judgment of Defendant, STATE FARM FIRE AND CASUALTY COMPANY (“STATE FARM”) and the Court having reviewed the record, heard argument of counsel and otherwise being duly advised in the premises, the Court makes the following findings:
1. STATE FARM issued a policy of automobile insurance to named insureds, CARIDA RIVERA and Jorge Rivera, which was in effect on January 4, 2007. The policy insured a 2004 Acura TL, which was owned by CARIDA RIVERA.
2. Named insured, Jorge Rivera, who is CARIDA RIVERA’s brother, had possession of the insured Acura vehicle on a trip to New York City, New York, when the vehicle was stolen and burned between the 2nd and 4th of January, 2007.
3. STATE FARM took recorded statements from CARIDA RIVERA and Jorge Rivera and sought to take examinations under oath of both pursuant to the STATE FARM Policy language which required the named insureds to “answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers . . . ” CARIDA RIVERA complied with the policy obligation of submitting to an examination under oath, but Jorge Rivera did not.
4. Jorge Rivera failed to appear for the first scheduled examination under oath on March 19, 2007, but agreed to appear later that same week. However, he again failed to appear on March 23, 2007, without any explanation and then was given another opportunity on April 9, 2007, to appear but again failed to do so without explanation. As a result of the named insured, Jorge Rivera’s failure to submit to an examination under oath in accordance with his policy duties, STATE FARM denied the claim on April 25, 2007.
5. CARIDA RIVERA filed this lawsuit on May 17, 2007, before Jorge Rivera submitted to the requested examination under oath and before either gave any explanation as to why he failed to appear. The STATE FARM policy also had a “suit against us” provision which stated that there was no right of action against STATE FARM until all terms of the policy had been met.
6. STATE FARM sought a summary judgment on the grounds of Jorge Rivera’s noncompliance with the examination under oath condition of the policy and CARIDA RIVERA’s filing of this lawsuit before the policy terms had been met.
On these undisputed facts, the Court rules as follows:
7. STATE FARM named insured, Jorge Rivera, refused to comply with three demands for submitting to an examination under oath at the request of STATE FARM and as such, willfully and materially breached the insurance contract, precluding coverage. See Goldman v. State Farm, 660 So.2d 300 (Fla. 4th DCA 1995) and Fassi v. American Fire and Casualty Co., 700 So.2d 51 (Fla. 5th DCA 1997).
8. The Court rejects plaintiff’s argument that the cooperation of CARIDA RIVERA is the functional equivalent of cooperation by the other named insured, Jorge Rivera. Jorge Rivera’s giving a recorded statement does not satisfy the examination under oath requirement according to Goldman.
9. Plaintiff, CARIDA RIVERA, filed this lawsuit before the examination under oath condition of the policy was satisfied by named insured, Jorge Rivera. Neither the facts nor the law support the application of the Innocent Co-Insured Doctrine under these circumstances.
10. As a result, STATE FARM’s Motion for Summary Judgment is granted. Final Summary Judgment is hereby entered in favor of STATE FARM FIRE AND CASUALTY COMPANY who shall go hence without day while plaintiff, CARIDA RIVERA takes nothing from this action. The court reserves jurisdiction for consideration of any recoverable fees or costs.
