2 Fla. L. Weekly Supp. 20b
Insurance — Denial of coverage — Insureds failed to substantially comply with policy provisions when they failed and refused to appear to give insurer sworn statements and to produce requested documentation relating to ownership of personal property for which loss was claimed — Insurer’s motion for summary judgment granted
GERALDO JIMENEZ & STELLA JIMENEZ, Plaintiffs, vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. 11th Judicial Circuit in and for Dade County, General Jurisdiction Division. Case No. 93-3298 (04). October 12, 1993. Sidney B. Shapiro, Judge. John G. Shiley, for Plaintiffs. Joseph P. D’Ambrosio, for Defendant.
AMENDED ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
This cause having come before the Court to be heard on defendant’s motion for summary judgment, the Court, having heard argument of counsel, reviewed the pleadings, motion, memoranda, cases cited and affidavits, and being otherwise fully advised in the premises, finds, concludes and orders as follows:
Plaintiffs suffered a casualty loss in Hurricane Andrew. At the time, they were insured by defendant, State Farm. The insurance policy in question contains several provisions which the company has a right to invoke when a claim is made. The policy allows the company to require the insured to submit to an examination under oath, to produce personal income tax returns, to provide records and documents relating to the ownership of the personal property for which the loss is claimed, to provide photographs of personal property items, to provide an executed and notarized sworn proof of loss statement, and to furnish other items as set forth in the policy.
After plaintiffs reported the loss, defendant requested that plaintiffs give statements under oath on December 29, 1992. On December 28, 1992, plaintiffs, through their public adjuster, advised the insurance company that no statements would be provided. A second date was set for January 7, 1993. Geraldo Jimenez appeared and gave a recorded statement but his wife, Stella Jimenez, did not. Defendant set a third date for Mrs. Jimenez for January 13, 1993, but plaintiffs’ counsel cancelled that appearance on January 12, 1993.
On February 15, 1993, defendant sent a certified letter to plaintiffs requesting documentation for the alleged loss. Nothing was forthcoming. Additional letters were sent on February 16, 1993 and March 8, 1993. These letters were ignored.
Plaintiffs filed suit on February 23, 1993. They were again noticed and scheduled for examination under oath on April 30, 1993 and May 13, 1993. They again failed to appear. Motions for protective orders were filed by plaintiffs’ counsel but no hearing was obtained on their request prior to the dates for the scheduled statements.
On June 4, 1993, this Court denied plaintiffs’ motion for protective order and directed plaintiffs, Geraldo and Stella Jimenez, to appear for their sworn statements. On June 14, 1993, counsel for plaintiffs filed a motion for rehearing rearguing the identical points raised in the original motion for protective order. This motion was denied on July 8, 1993. Pursuant to the June 4, 1993 Order, plaintiffs’ examinations under oath were rescheduled for June 17, 1993. Plaintiffs again failed to appear.
Up through the date of the summary judgment hearing, plaintiffs, Stella and Geraldo Jimenez, have failed and refused to appear to give defendant sworn statements and produce the requested documentation. Finally, at the summary judgment hearing, plaintiffs’ counsel “volunteered” plaintiffs’ appearance.
Florida and other courts have consistently upheld the right of insurers to obtain cooperation from their insureds making claims under policies. West v. State Farm Fire & Casualty Co., 868 F.2d 348 (9th Cir. 1989); Nationwide Mutual Fire Ins. Co. v. Dunkin, 850 F.2d 441 (8th Cir. 1988); Do-Re Knit, Inc. v. National Union Fire Ins. Co., 491 F.Supp. 1334 (E.D.N.Y. 1980); and Stringer v. Fireman’s Fund Ins. Co., 18 F.L.W. D1753 (3rd D.C.A. Op. filed Aug. 10, 1993). In Stringer, supra., a case directly on point, the Court held that, “The failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay.”
Plaintiffs’ present agreement to submit to examinations under oath is too little and too late. The insurance policy in question contains the following provision: “No action shall be brought unless there has been compliance with the policy provisions.” In the instant case, there was substantial lack of compliance before suit was filed.
Based on the foregoing, this Court concludes that no issue of material fact remains. Plaintiffs clearly did not comply with the provisions of the policy. Defendant is entitled to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment be and the same is hereby granted.
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