17 Fla. L. Weekly Supp. 926a

Online Reference: FLWSUPP 1710BLAKInsurance — Homeowners — Examination under oath — Noncompliant spouse — Although husband who is not named in wife’s homeowners policy and has permanently moved out of home is no longer additional insured under policy, husband was additional insured on date of burglary when he was residing in home, and he was required to attend EUO concerning burglary — However, where policy does not require all insureds to submit to EUO as condition precedent to coverage, insurer cannot deny coverage to fully compliant wife based on husband’s failure to attend EUO — Insurer may deny claim of noncompliant husband

HEIKE BLAKE, Appellant, v. FIRST HOME INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-245 AP. L.T. Case No. 06-012026-CC-05. May 12, 2010. An appeal from a decision rendered by the Miami-Dade County Court, Wendall Graham, Judge. Counsel: Shaib Y. Rios, for Appellant. Philip J. Kantor and Neil M. Khan, Quintairos, Prieto, Wood, and Boyer, for Appellee.

(Before LEDERMAN, JOHNSON and CABALLERO, JJ.)

(CABALLERO, Judge.) THIS CAUSE came before the trial court on a motion for summary judgment submitted by Appellee First Home Insurance Company (“First Home”). Heike Blake (“Mrs. Blake”), the Plaintiff in the trial court, sued First Home, the Defendant in the trial court, for breach of a homeowner’s insurance contract. First Home argues two issues on appeal. The first issue, is whether Mr. Blake was an insured under the policy and whether he could be required to attend an examination under oath (“EUO”). The second issue was whether First Home was ultimately entitled to deny coverage to Mrs. Blake, an innocent co-insured, based on the failure of Mr. Blake to attend a reasonably scheduled EUO because he was an insured under the policy.

Mrs. Blake’s first language is German and she speaks English as a second language. She was the only listed named insured on the policy, which covered the time period from March 4, 2005 to March 5, 2006. Mr. Blake is not expressly named in the policy. Her home was burglarized by an unknown assailant on November 4, 2005. She furnished First Home with timely notice of loss, proof of claim and otherwise performed all conditions precedent to coverage. First Home requested an EUO and Mrs. Blake attended the EUO on June 20, 2006. During the EUO, the examiner asked her, “Who lives in the home with you?” Mrs. Blake replied, “Me, my husband and my daughter.”

This non-date specific question appears to be the only question that asks about the status of who was living at the home. Nothing in the answer suggested when precisely Mr. Blake lived with Mrs. Blake and her daughter. As Mr. Blake is not listed on the policy, it would have been highly probative and relevant to ask about the time period that Mr. Blake resided in the home. After the EUO concluded, First Home proceeded to request the EUO of Mr. Blake. The first request was addressed to Mrs. Blake’s attorney Ryan Ratliff on July 27, 2006. Mr. Ratliff did not forward this notice to Mr. Blake, as he did not represent him. The second request was sent directly to the home address that is the subject of the policy, certified mail return receipt requested. First Home has not come forth with a return receipt indicating that Mr. Blake ever signed for the letter.

Mrs. Blake filed an affidavit in opposition to First Home’s summary judgment motion, pointing out her language problem and clarifying her testimony during the EUO by bringing forth a certified copy of a permanent domestic violence injunction. This final judgment was signed by the county court, on March 7, 2006. It ordered Karl Blake could “not go to, in, or within 500 feet” of Mrs. Blake’s residence. Both Mrs. Blake and Mr. Blake signed and received a copy of the permanent injunction.

The hearing for summary judgment took place on March 31, 2009. First Home argued that they needed Mr. Blake’s EUO because he was the individual who discovered the home burglarized. Mr. Blake called the police and called Mrs. Blake to alert her to what had happened. It argued that it would be prejudiced, were it not allowed to take the EUO of Mr. Blake, since he was the individual with the most knowledge and information about the break-in. First Home maintained that based on the current status of the law, Mr. Blake became an insured because he was a resident spouse on the date of incident.

Mrs. Blake argued that Mr. Blake was not an insured. More importantly, counsel for Mrs. Blake argued that “[t]he noncooperative spouse cannot hold a cooperative spouse’s claim hostage.” To this point, he cited to language from case law he presented to the trial court, that “the refusal by insured’s husband to submit to an examination under oath did not operate to prevent insured from recovering for loss of her property . . . but merely prevented husband from recovering benefits or any loss he might have suffered.” First Home conceded that Mr. Blake was not a named insured, but was an “additional insured.” Counsel for Mrs. Blake brought to the trial court’s attention the “innocent co-insured” exception.

Notwithstanding, the trial court granted summary judgment. It was concerned that Mrs. Blake’s failure to advise First Home, that she and her husband had separated, prejudiced First Home. The trial court further felt that First Home could have attempted to locate and serve Mr. Blake, if it had been aware that he was no longer living in the home. This appeal followed.

The standard of review concerning the grant of a summary judgment by a lower court, is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). The reviewing court must determine whether there was any genuine issue of material fact and whether the lower court granted the summary judgment correctly as a matter of law. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126 (Fla. 2000). The movant at all times carries the burden of clearly and unequivocally establishing a right to summary judgment. Smith v. Musso, 151 So. 2d 475, 477 (Fla. 2d DCA 1963).

The actual burden of proof requires the moving party to show the absence of any genuine issue of material fact; all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966) (holding in review of summary judgment dealing with numerous expert opinion affidavits regarding the issue of negligence that “opposing party’s papers be liberally read and construed, as opposed to a strict reading of the movant’s paper” and that moving party must demonstrate complete lack of triable issues). All inferences deductible from proofs are drawn against party moving for summary judgment and in favor of adverse party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).

With respect to the first issue on appeal, we find that Mr. Blake was an additional insured on the date of incident. Seitlin & Co. v. Phoenix Ins. Co., 650 So. 2d 624 (Fla. 3d DCA 1994) (holding that university student living at off-campus apartment was an additional insured because he had not permanently left his parent’s home). We also find Mr. Blake ceased to be an additional insured, as of the date he permanently moved out of the home. Allstate Ins. Co. v. Fulton, 345 So. 2d 854, 855 (Fla. 3d DCA 1977) (“[O]nce she ceased to be a resident spouse ‘of the Named Insured’s household,’ she ceased to be an insured.”) While he is no longer currently an insured of First Home for any losses that arose after he left the home permanently, that does not mean he is no longer covered by First Home with respect to the loss that occurred on November 24, 2005. Therefore, we hold that Mr. Blake was an insured, and was required to attend an EUO. We agree with First Home as to this issue.

By contrast, with respect to the second issue on appeal, we believe that First Home’s argument must fail. We find that the policy must jointly require all insured to submit to an examination under oath as a condition precedent to filing suit, before an insurer can proceed to deny coverage for failure of one insured to attend. See Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197 (Fla. 4th DCA 2006) (holding that a policy could not be construed as generally requiring an EUO, where the requirement was clearly omitted). This policy never specifies that a co-insured, fully compliant with the policy provisions, can be denied coverage by the lack of compliance of another co-insured.

Construction of an insurance contract is a question of law, and the scope of our review is de novo. Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004). If policy provisions are ambiguous and cannot be reasonably reconciled, then this Court must apply well-established rules of construction. Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 735 (Fla. 2002). The most basic rule of construction is that ambiguous policy provisions are to be construed in favor of the insured. Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997). When language is susceptible to more than one interpretation, then the meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986)

First Home unsuccessfully points out that on page 17 of the policy, “Sections I and II — Conditions” provides under “2. Concealment or Fraud” that “[t]he entire policy will be void, if, whether before or after a loss, an ‘insured’ has . . . intentionally concealed or misrepresented any material fact or circumstance.” Mrs. Blake has not intentionally concealed or misrepresented anything as she pointed out that a language problem caused her to incorrectly answer that Mr. Blake was presently living in the home.¹ First Home points to Mr. Blake instead and argues that his failure to attend the EUO constitutes concealment. However, First Home has not put forth any proof of Mr. Blake’s intent, because it has failed to prove that Mr. Blake was aware that he was scheduled to attend an EUO. The only evidence presently in the record (that First Home has been unable to rebut), is that Mr. Blake left the residence prior to receiving any notices, and that he was not represented by Mrs. Blake’s counsel.

At page 9, “Section I — Conditions” under “2. Your Duties After Loss” states that, “In case of a loss to covered property, you must see that the following are done:”

f. As often as we reasonably require . . .

(3) Submit to examination under oath, while not in the presence of any other “insured,” and sign the same;

The Definitions section of the policy defined “you” as the named insured or resident spouse. No where is it specified that every person that is considered an insured must submit to an EUO, to satisfy this term of the policy.

We find that First Home’s policy only mandated that at least one insured attend an EUO, not that every insured attend an EUO to satisfy a condition precedent to coverage for the claim of each insured. First Home could have required the joint attendance of all insured in its policy language, but did not expressly do so. See USAA Cas. Ins. Co. v. Gordon, 707 So. 2d 1185, 1186 (Fla. 4th DCA 1998) (court found that the use of the term “any insured” was unambiguous as compared to the vague term “the insured”). If properly worded, certain policy terms can expressly create joint obligations and defeat recovery by an innocent co-insured. Kattoum v. New Hampshire Indem. Co., 968 So. 2d 602, 605 (Fla. 2d DCA 2007). Nonetheless, where a policy does not express whether the obligation to attend an EUO is joint or several, the ambiguity should be resolved as requiring the obligations and coverage to apply severally. Overton v. Progressive Ins. Co., 585 So. 2d 445 (Fla. 4th DCA 1991) (“We conclude that the policy must be interpreted to provide several rather than joint coverage and that appellant, as an innocent insured, is to be afforded coverage under the Progressive policy.”) Therefore, we hold that First Home was free to deny Mr. Blake’s claim because he failed to attend an EUO, but should have covered Mrs. Blake based on the language of its own policy.

We also note that perhaps, First Home should have refreshed its recollection by re-reading pages 22 through 24 of the transcript of the March 31, 2009 hearing before it opted to assert in writing that the innocent co-insured argument was “not properly raised at the trial court,” and that Mrs. Blake “failed to properly preserve the argument.”

We REVERSE and REMAND the summary judgment finding below that the failure of Mr. Blake to submit to an EUO constituted a material breach which barred Mrs. Blake, an innocent co-insured, from recovering under the policy.

This Court awards appellate attorney’s fees to Mrs. Blake, as she is the prevailing party in this appeal. See § 627.428(1), Fla. Stat. (2009).

FOR THESE REASONS, the order granting final judgment in favor of Appellee is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED. (LEDERMAN and JOHNSON, J.J., concur.)

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¹First Home contends that Mrs. Blake’s affidavit constitutes a bald repudiation of her EUO statement and should be barred by the rule in Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). The Third District Court of Appeal has subsequently held that Ellison does not apply where a second expression may well be a clarification of the prior statement. Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982). In the instant case, Mrs. Blake produced a certified copy of a court order which reflects that Mr. Blake should not have been living in the home at the time of the EUO and this order constituted evidence which lent credibility to her claim that she was mistaken. See Andrews v. Midland Nat. Ins. Co., 208 So. 2d 136, 137 (Fla. 3d DCA 1968) (“We think that at the danger of prolonging litigation, we must hold that a witness is not irrevocably bound by his first written statement upon the issues of a case. It is proper for the court to require further evidence on the issue.”) Mrs. Blake’s EUO answer was not date specific and her subsequent clarification of dates does not constitute the “blatant” or “bald” repudiation prohibited by Ellison. Arnold v. Dollar General Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994).