16 Fla. L. Weekly Supp. 866a
Online Reference: FLWSUPP 169BUERG
Insurance — Personal injury protection — Examination under oath — Insured forfeited rights under policy where she refused to answer material questions during EUO required by PIP policy, prematurely terminated EUO, and failed to respond to correspondence indicating that she should contact insurer to continue EUO
CALIKOS X-RAY DIAGNOSTIC, A/A/O Isabel Buergo, Plaintiff, vs. STATE FARM FIRE & CASUALTY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-6599 SP 05(01). May 14, 2009. Bronwyn C. Miller, Judge.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on May 14, 2009 upon Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows:
Background:
1. On or about September 24, 2007, Isabel Buergo was involved in an automobile accident. Buergo was the owner of Plaintiff Corporation, CALIKOS X-RAY DIAGNOSTIC, and purported to receive treatment there following the accident.
2. Defendant, STATE FARM FIRE & CASUALTY INSURANCE COMPANY, scheduled Ms. Buergo for an examination under oath (“EUO”) to take place on November 6, 2007.
3. Ms. Buergo appeared for the EUO and, initially, answered all questions posed to her by counsel for Defendant.
4. However, as the EUO progressed, Buergo indicated that she had the option to refuse to answer questions and proceeded to refuse to answer numerous questions. Eventually, she prematurely terminated the EUO despite the fact that counsel for Defendant indicated he had further questions relevant to the claim.
5. Shortly after the EUO, Defendant mailed correspondence to Buergo indicating that she should contact the insurer to continue the EUO. Buergo chose not to respond to the correspondence and Plaintiff filed suit.
6. The policy of insurance at issue in the case sub judice reads, in relevant part: The person making claim also shall:
(c) answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers
(5) Insured’s Duty to Cooperate With Us
The insured shall cooperate with us and, when asked, assist us in:
(b) securing and giving evidence
Questioning Under Oath
b. No-Fault Coverage . . . an person or organization making claim or seeking payment; must, at our option, submit to an examination under oath . . . Such person or organization must answer questions under oath asked by anyone we name and sign copies of the answers. . .
Legal Analysis:
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Defendant has submitted the policy of insurance, the affidavit of its adjuster, the transcript of the EUO, demonstrating refusal to answer questions posed and premature termination of the EUO, and the notification mailed to the insured indicating the insurer was willing to give her an opportunity to complete the EUO. Plaintiff has failed to submit anything in opposition to Defendant’s record evidence.
It is well-established that an insurer is relieved of its liability to pay for medical expenses by a claimant’s failure to submit to an EUO. Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993) (The failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay.) Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir. 1990), cert. denied, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990); Line v. Allstate Ins. Co., 355 F.2d 1303 (N.D. Fla. 2005).
Under Florida law, an insured’s failure to “submit” to an independent medical examination or examination under oath required by an insurance policy “constitutes a material breach which bars recovery.” Goldman v. State Farm Gen. Ins. Co., 660 So.2d. 300, 303 (Fla. 4th DCA 1995). In Goldman, the insureds failed to attend an examination under oath, following proper notice. Under this circumstance, the appellate court upheld a summary judgment in the insured’s [sic] favor. Id. at 306.
Thus, the policy in the instant action is consistent in its declaration that an insured must appear, if requested, for an examination under oath and suit cannot be brought unless all conditions precedent have been fulfilled. See Wright v. Life Insurance Company of Georgia, 762 So.2d 992, 993 (Fla. 4th DCA 2000).
Courts have upheld policy provisions requiring an insured to appear for the EUO prior to filing suit and have determined that the failure to comply constitutes material breach that creates a defense to coverage. See Stringer v. Fireman’s Fund Insurance Company, 662 So.2d 145 (Fla. 3rd DCA 1993) and Willis v. Huff, 736 So. 2d 1272, 1273 (Fla. 4th DCA 1999). A third party seeking to collect benefits must ensure compliance by the insured to the policy’s terms and conditions or lose its rights under the policy. See Universal Medical Center Of South Florida v. Fortune Insurance Co., 761 So. 2d 386, 387 (Fla. 3d DCA 1997).
In the instant case, Ms. Buergo forfeited her rights under the policy by refusing to answer material questions under oath, and by choosing not to respond to Defendant’s subsequent correspondence. “When an insured appears for an EUO and elects to answer some, but not all, questions under oath, the insurer’s investigation of the claim is clearly prejudiced, especially since the insurer is only given thirty days to evaluate its rights and obligations under the policy.” Eagle Rehab Therapy Service a/a/o Franklin Ramos v. State Farm Fire & Casualty. Ins. Co., 14 Fla. L Weekly Supp. 894a (11th Jud. Cir. Cty. Ct. Hon. Lawrence D. King, June 13, 2007).
Thus, the Court finds that Ms. Buergo’s refusal to answer material questions under oath prior to the filing of the instant case is a material breach of the terms and conditions of the insurance contract and as a matter of law relieves Defendant of its obligation to pay personal injury protection benefits.
WHEREFORE, Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
Defendant shall go henceforth without day.
