25 Fla. L. Weekly Supp. 201a
Online Reference: FLWSUPP 2502CORRCivil procedure — Insurance — Summary judgment — Supporting affidavit — Insured’s examination under oath may be used to support insurer’s motion for summary judgment — Plaintiff’s motion to strike EUO is denied
ISO-DIAGNOSTIC TESTING, INC. a/a/o Yamileth Correa, Plaintiff, v. WINDHAVEN INSURANCE COMPANY Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-19903 (52). April 10, 2017. Giuseppina Miranda, Judge. Counsel: Steven Lander, Lander, Dalal and Associates, P.L., Fort Lauderdale, for Plaintiff. Bridgid Napier, Staff Counsel, Windhaven Insurance Company, Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKETHE EXAMINATION UNDER OATH
THIS CAUSE, having come before the Court for hearing upon Defendant’s Motion Final Summary Judgment and the Court, having heard argument of counsel, having reviewed the motion and relevant case law and otherwise having been fully advised in the premises, the Court makes the following preliminary findings:
A. In support of its Motion, the Defendant has filed the examination under oath (hereinafter referenced as “EUO”) conducted in this matter wherein a sworn statement was taken of the insured/claimant.
B. The Plaintiff has argued that the EUO cannot be utilized as an “affidavit” to support the Motion for Summary Judgment, citing to Fla. R. Civ. P. 1.510(c). Plaintiff argued that because the Rule does not specially list a EUO as a material to support summary judgment, that the court should not consider the EUO.
C. Rule 1.510(c) states, in pertinent part: “The motion shall state with particularity the grounds upon which it is based . . . and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence . . . on which the movant relies.”
D. The Plaintiff also cited to numerous other cases as support of its position, which the court does not find persuasive. Additionally, Plaintiff’s asserts that the EUO should be stricken because the EUO is taken as a requirement of the insurance policy and that the Plaintiff is not present during the statement and did not cross exam the insured/claimant. This argument is also not persuasive.
E. Instead, the Defendant’s position is well taken, in that the EUO is simply the sworn testimony of the insured/claimant and could be used to support their motion for summary judgment. See Avampato v. Markus, 245 So. 2d 676, 678 (Fla. 4th DCA 1971) (finding a sworn statement of the defendant admissible even though it was not in a form usually employed to support a motion for summary judgment); Stinnett v. Longi, Inc., 460 So. 2d 528 (Fla. 2d DCA 1984) (holding that a deposition in which the adverse party received no notice but was made on basis of personal knowledge, contained facts that would be admissible into evidence and showed that the deponent was competent to testify to matters was an equivalent of an affidavit and was a basis for a motion for summary judgment). See also, Quantum Imaging Holdings, LLC a/a/o Lisa Oridge v Windhaven Insurance Company, 24 Fla. L. Weekly Supp. 886a (County Court, 17th Judicial Circuit, Judge John D. Fry, November 2, 2016) and the cases cited therein.
THEREFORE, it is ORDERED AND ADJUDGED that Plaintiff’s motion to strike the examination under oath is DENIED. The parties shall contact the court’s judicial assistant to set this matter for the conclusion of Defendant’s Motion for Final Summary Judgment, as well as all pending motions relating thereto.
