17 Fla. L. Weekly Supp. 589a
Online Reference: FLWSUPP 1707ALME
Insurance — Personal injury protection — Examination under oath — Failure to attend — Where insured failed to attend EUO or provide reason for non-attendance, summary judgment is entered in favor of insurer — Attendance at EUO is condition precedent to recovery under PIP policy, not condition subsequent to recovery
B & A DIAGNOSTIC, INC, a/a/o Jendry Almero, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-04645-SP-26. March 18, 2010. Patricia Marino Pedraza, Judge. Counsel: Wajid Shirazi, for Plaintiff. Maury Udell, Beighley, Myrick & Udell, P.A., for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on the 26TH day of February, 2010 on Defendant’s Motion for Summary Judgment regarding EUO No show and upon argument of counsel, review of the record evidence, and case law, it is ORDERED AND ADJUDGED as follows:
1. In support of its Motion, the Defendant has filed the affidavit of their representative, Sarah Hydes, who asserts that on or about May 14th, 2008, State Farm requested Jendry Almero to attend an examination under oath. The notice was sent via certified mail and regular mail. (Proof of mailing and return receipt included.) Mr. Almero failed to attend and failed to provide any reason for the non-attendance.
2. Plaintiff filed a PIP action on or about June 11, 2009. Nothing has been filed in opposition to the Defendant’s Motion for Summary Judgment.
3. Defendant asserts that offending the EUO was a condition precedent to receiving PIP benefits. Defendant relies upon both the language of the contract as well as case law. Plaintiff argues that such compliance is a condition subsequent based upon the assertion that EUO attendance is not dictated within the PIP Statute. The Plaintiff relies upon a handful of County Court Orders.
4. This Court agrees with the Defendant’s argument. The courts have consistently held that an EUO provision in an insurance policy is a condition precedent that must be complied with in order to maintain an action to recover policy benefits. See Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300 (Fla. 4th DCA 1995), review denied, 670 So.2d 938 (Fla. 1996); see also Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007) (recognizing an EUO as a condition precedent and analogizing it to a condition precedent in a policy requiring submission of a sworn proof-of-loss statement); Fassi v. Amer. Fire & Cas., Co., 700 So.2d 51 (Fla. 5th DCA 1997) (affirming summary judgment in favor of insurer when the insured failed to timely appear for an EUO). Courts in other jurisdictions also interpret EUO provision to be conditions precedent to making a claim and filing suit to recover the claim under the policy. See Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944, 947 (11th Cir.) (“Appellant entered into a contract which required that he submit to an examination under oath as a condition precedent to suit. The contractual provision is commonly used in insurance policies and has been upheld by many courts”), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990). Amica Mutual Insurance Company v. Drummond, 970 So.2d 456 (Fla. 2nd DCA 2007). Stringer v. Fireman’s Fund Insurance Company, 662 So.2d 145 (Fla. 3rd DCA 1193) and West Dixie Rehabilitation v. State Farm, 10 Fla. L. Weekly Supp. 16a (Fla. 11th Cir. Apellate 2002).
5. Therefore, this Court enters Summary Judgment in favor of the Defendant at to the EUO no show finding it to be a condition precedent.
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FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came upon to be heard on Defendant’s Motion for Entry of Final Judgment and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. The Court, having granted Defendant’s Motion for Final Judgment regarding the EUO no-show defense on March 22, 2010 and having denied Plaintiff’s Motion for Re-hearing and/or Clarification on April 23, 2010, hereby enters final judgment in favor of Defendant State Farm Mutual Automobile Insurance Company.
2. Plaintiff shall take nothing by this action and Defendant shall go hence forth without day.
3. The Court reserves jurisdiction to determine attorney’s fees and costs.
