16 Fla. L. Weekly Supp. 947a
Online Reference: FLWSUPP 1610EMI2
Insurance — Personal injury protection — Examination under oath — Proper remedy for failure to satisfy condition precedent of submission to EUO which includes questions calling for narrative answer is dismissal without prejudice to satisfy condition precedent, not summary judgment
WILXENE EMILCAR, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. Circuit Court, 10th Judicial Circuit in and for Polk County, Civil Division, Section 11. Case No. 2007 CA-004285. June 25, 2008. Roger A. Alcott, Judge. Counsel: David Wilson. Tammy Denbo, Masten, Lyerly, Peterson & Denbo, LLC, Orlando.
ORDER GRANTING AS DISMISSAL WITH OUT PREJUDICE DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: UMBENEFITS FOR PLAINTIFF’S FAILURE TO COMPLY WITH CONDITION PRECEDENT TO FILING SUIT
THIS CAUSE came before the Court on Monday, 23 June 2008 for a noticed hearing on the defendant’s motion for summary judgment regarding condition precedent. Attorney Tammy Denbo appeared for the defendant. Attorney David Wilson appeared for the defendant. The Court heard the arguments of counsel, and took the matter under advisement to review the pleadings and submissions.
The Court finds that as a condition precedent to filing the action the plaintiff must submit to an examination under oath which would include questions which call for a narrative answer. The Court does not believe the proper remedy for failure to satisfy this condition is an adjudication by way of summary judgment, but rather a dismissal without prejudice to satisfy this condition precedent.
Upon the foregoing findings and conclusions of law, it is
ORDERED AND ADJUDGED that:
1. The Defendant’s Motion for Partial Summary Judgment is treated as a motion to dismiss and is GRANTED without prejudice.
2. The Plaintiff shall have 60 days from the date of this order to satisfy all conditions precedent and may then file an Amended Complaint based on UM coverage.
