17 Fla. L. Weekly Supp. 468a
Online Reference: FLWSUPP 1706ALEN
Insurance — Personal injury protection — Examination under oath is condition precedent to maintenance of action to recover PIP benefits
B & A DIAGNOSTIC, INC. a/a/o Ramon Alen, Plaintiff(s), vs. DIRECT GENERAL INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-2767-SP-26. March 19, 2010. Patricia Marino-Pedraza, Judge. Counsel: Wajid Shirazi, for Plaintiff. Jarred Dichek, Law Office of Kubicki Draper, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on the 19TH 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 filed the affidavit of their adjuster with accompanying documentation. The Plaintiff stipulated that the claimant was properly noticed and failed to attend three (3) EUO’s. No reason was provided for the non-attendance and nothing has been filed in opposition by the Plaintiff.
2. Defendant asserts that attending 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.
3. 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. 2th DCA 2007). Stringer v. Fireman’s Fund Insurance Company, 692 So.2d 145 (Fla. 3th DCA 1993) and West Dixie Rehabilitation v. State Farm, 10 Fla. L. Weekly Supp. 16a (Fla. 11th Cir. Apellate 2002).
4. Therefore, this Court enters Summary Judgment in favor of the Defendant as to the EUO no show finding it to be a condition precedent.
