18 Fla. L. Weekly Supp. 1173a
Online Reference: FLWSUPP 1811EXCL Insurance — Personal injury protection — Coverage — Conditions precedent — Examination under oath is not valid condition precedent to coverage under PIP policy
EXCLUSIVE HEALTHCARE CENTER, INC.(A/A/O DENIS HERNANDEZ), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-0394 CC 21. August 25, 2011. Honorable Ana Pando, Judge. Counsel: Ryan Peterson, Patiño Law Firm, Hialeah, for Plaintiff. Radames Heredia, III, Adams & Diaco, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON EUO
THIS CAUSE CAME BEFORE THIS COURT on the Plaintiff’s Motion for Summary Judgment on the EUO No Show Defense. The Plaintiff argued that the EUO condition in a policy was not valid pursuant to Custer Med. Ctr. A/a/o Maximo Masis v. United Auto. Ins. Co., SC08-2036, (Fla., 2010) [35 Fla. L. Weekly S640a]. For the Court’s consideration the parties presented several recent decisions from the 11th Circuit, as well as the decision in Custer.
The Court considered the opinion from the 11th Circuit in State Farm v. Suncare Physical Theraphy, Inc., a/a/o Cedrole Henrisma, Case no 08-648 AP (Fla. 11th Circ. App. Ct., July 13, 2011) [18 Fla. L. Weekly Supp. 776a]. In that case, the appellate court considered the EUO statements in Custer obiter dicta, and despite the very convincing authority in Custer, instead relied upon several cases that the Supreme Court previously held were inapplicable to PIP cases in Custer. This Court finds that Goldman v. State Farm Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a] does not apply to PIP cases, just as the Supreme Court held in Custer: “Goldman involved a homeowner’s insurance policy and the insured’s failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.”
This Court finds much more well reasoned the opinion of United Auto v. Francisco Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. 11th Circ. App. Ct., February 3, 2011), which indicates that “Although United’s defense in Custer was that its insured unreasonably refused to attend an Independent Medical Examination (IME), we find that the Florida Supreme Court’s rationale, and its result, equally apply in the context of an EUO No-Show defense.” An examination under oath is not provided for in the PIP statute, which Custer has indicated is mandatory. The Plaintiff’s Motion is Granted.
