16 Fla. L. Weekly Supp. 1048a
Online Reference: FLWSUPP 1611BAEZ
Insurance — Personal injury protection — Declaratory judgment — Coverage — Where insured willfully and materially breached policy by failing to submit to examination under oath despite insurer’s numerous attempts over course of year to accommodate insured in setting EUO, and insurer is prejudiced by insured’s failure to cooperate by securing and giving evidence because insurer has evidence that indicates accident was staged, insurer is permitted to avoid all coverage and has no duty to indemnify or defend insured for any suit arising out of accident
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, vs. MANUEL BAEZ, JOSE CAIRO, and SPINE REHABILITATION CENTER, INC., Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 08-CA-004098. August 4, 2009. William P. Levens, Judge. Counsel: J.D. Dowell. Timothy Patrick. Joanna J. Bilgutay, Andrews & Manno, P.A., Tampa.
FINAL DECLARATORY JUDGMENT
This cause having come before the court on June 30, 2009, on Defendant’s Motion for Entry of Final Judgment as to its Amended Petition for Declaratory Judgment and the Court having heard argument of counsel, having reviewed the file and being otherwise fully advised in the premises, it is hereby:
ORDERED, ADJUDGED and DECLARED: That State Farm Mutual Automobile Insurance Company’s Amended Petition for Declaratory Judgment is hereby GRANTED.
IT IS FURTHER ORDERED, ADJUDGED and DECLARED: That State Farm Mutual Automobile Insurance Company’s doubts under Manuel Baez’ policy of insurance as to its rights and obligations as to (1) whether Manuel Baez’ policy of insurance inures to his benefit; (2) whether Manuel Baez should be afforded any coverage; (3) whether proceeds from Manuel Baez’ insurance policy should be afforded to any party or entity including, but not limited to, Jose Cairo and Spine Rehabilitation Center, Inc.; and (4) whether it is required to indemnify and/or defend Manuel Baez in an action brought by any party or entity, including, but not limited to Jose Cairo and Spine Rehabilitation Center, Inc., are hereby resolved as the Court declares as follows:
1. That Manuel Baez willfully and materially breached his policy of insurance with State Farm Mutual Automobile Insurance Company when he failed to comply with the conditions precedent of the subject policy by failing to appear for an examination under oath. Over the course of more than a year, State Farm Mutual Automobile Insurance Company attempted to set Manuel Baez’ EUO. However, after numerous attempts by State Farm Mutual Automobile Insurance Company to accommodate and secure Manuel Baez’ EUO, he never submitted to an EUO as requested.
2. That Manuel Baez also willfully and materially breached his policy of insurance when he failed to cooperate and fulfill his duties in accordance with the terms and conditions of the subject policy by failing to secure and give evidence. State Farm Mutual Automobile Insurance Company has been substantially prejudiced by Manuel Baez’ failure to cooperate under the policy of insurance because State Farm Mutual Automobile Insurance Company has evidence that indicates the alleged accident was not a covered loss, but rather a staged accident orchestrated for the purpose of collecting money through Manuel Baez’ policy of insurance.
3. That as a result of Manuel Baez’ failure to submit to an examination under oath and his failure to cooperate by securing and giving evidence, Manuel Baez’ policy of insurance with State Farm Mutual Automobile Insurance Company does not inure to his benefit.
4. That as a result of Manuel Baez’ failure to submit to an examination under oath and his failure to cooperate by securing and giving evidence, State Farm Mutual Automobile Insurance Company is thereby permitted to avoid any and all coverage to Manuel Baez for the alleged automobile accident occurring on October 24, 2005.
5. That as a result of Manuel Baez’ failure to submit to an examination under oath and his failure to cooperate by securing and giving evidence, State Farm Mutual Automobile Insurance Company is thereby permitted to avoid any and all payment of Personal Injury Protection and Medical Payment Coverage proceeds from Manuel Baez’ policy of insurance to any person or entity, including but not limited to Defendant, Spine Rehabilitation Center, Inc. for any claims arising out of the alleged automobile accident which occurred on October 24, 2005.
6. That as a result of Manuel Baez’ failure to submit to an examination under oath and his failure to cooperate by securing and giving evidence, State Farm Mutual Automobile Insurance Company has neither the duty nor the obligation to afford any Bodily Injury proceeds from Manuel Baez’ policy of insurance to any person or entity, including but not limited to Defendant, Jose Cairo, for any claims arising out of the alleged automobile accident which occurred on October 24, 2005.
7. That as a result of Manuel Baez’ failure to submit to an examination under oath and his failure to cooperate by securing and giving evidence, State Farm Mutual Automobile Insurance Company has neither the duty nor the obligation to indemnify or defend Manuel Baez against any interested and indispensable party, including, but not limited to, Jose Cairo and Spine Rehabilitation Center, Inc., for any lawsuits arising out of the alleged automobile accident which occurred on October 24, 2005.
8. That Final Judgment has been entered on behalf of Plaintiff, State Farm Mutual Automobile Insurance Company.
IT IS FURTHER ORDERED, ADJUDGED and DECLARED: That this Court retains jurisdiction to enter a supplemental order to carry into effect this declaratory judgment and final order.
