28 Fla. L. Weekly Supp. 420a
Online Reference: FLWSUPP 2805CANN
Insurance — Automobile — Coverage — Conditions precedent — Examination under oath — Obligation to attend EUO as condition precedent to recovery of benefits remains with insured despite fact that she assigned benefits to windshield repair shop — No merit to argument that assignee should be allowed to attend EUO in lieu of insured
SHAZAM AUTO GLASS, LLC, a/a/o Nicole Cannon, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, PROGRESSIVE CASUALTY INSURANCE COMPANY, PROGRESSIVE DIRECT INSURANCE COMPANY, PROGRESSIVE EXPRESS INSURANCE COMPANY, AND PROGRESSIVE SELECT INSURANCE COMPANY, Defendants. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-055520, Division L. June 22, 2020. Michael Bagge-Hernandez, Judge. Counsel: Ronald S. Haynes and Frank Menendez, Christopher Ligori & Associates, Tampa, for Plaintiff. Lisa M. Lewis, Cole, Scott & Kissane, P.A., Tampa, for Defendants.
ORDER ON DEFENDANT’S RENEWED MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Defendant’s Renewed Motion for Final Summary Judgment; however, the Court is ruling on this Motion as Defendant’s Motion for Summary Disposition and the Court having heard argument of counsel, and being otherwise advised in the Premises, the Court hereby finds as follows:
FACTUAL BACKGROUND
This is a suit that arises from a dispute between Plaintiff, Shazam Auto Glass, LLC (Shazam) and Progressive American Insurance Company (Progressive) regarding an alleged loss stemming from purported damage sustained to a windshield of the insured, Nicole Cannon. The loss is alleged to have occurred on March 24, 2018, with a replacement windshield being installed by Shazam on August 25, 2018. Shazam submitted an invoice to Progressive on August 30, 2018, which was Progressive’s first notice of the loss. It is undisputed that the Progressive was not provided with an opportunity to inspect the alleged damaged windshield of Nicole Cannon’s vehicle prior to its repair or disposal. Progressive subsequently requested Nicole Cannon submit to an Examination Under Oath. Proper notice was given to Nicole Cannon scheduling the Examination Under Oath for October 12, 2018. Nicole Cannon failed to attend this Examination Under Oath. Progressive sent a denial letter to Nicole Cannon and Shazam, advising that there was no coverage for this alleged loss. Shazam subsequently brought this suit on behalf of Nicole Cannon, pursuant to an assignment of benefits.
ANALYSIS
Shazam alleges that proper notice was provided to Progressive as a result of this alleged loss. Shazam asserts that it is the assignee of Nicole Cannon and stands in her shoes, acquiring all the benefits and obligations of the subject policy. Shazam further contends that as an obligation under the policy, Plaintiff’s corporate representative should be allowed to serve as the witness in lieu of the insured for the examination under oath.
Progressive contends that notice was not prompt, as required by the terms of the policy, thus proper notice of the alleged loss was not given. In addition, Progressive asserts that the failure to submit to an Examination Under Oath when requested is a material breach of the terms of the policy. In addition, sitting for an Examination Under Oath is a non-delegable duty that cannot be assigned to someone else. That would be similar to hold that because a treating physician was assigned the Personal Injury Protection (PIP) benefits from an insured, that the treating physician can sit for an Independent Medical Examination. This would lead to an absurd result, just as it would here.
The relevant portion of the policy states, “[a] person seeking coverage must allow us to take signed and recorded statements, including sworn statements and examinations under oath. . .” (Policy page 33). The policy further goes on to state that “[w]e may not be sued unless there is full compliance with the terms of this policy.” (Policy page 39). The Court is not persuaded by Plaintiff’s argument. Pursuant to the terms and conditions of the policy, Plaintiff is precluded from bringing an action against Progressive for breach of contract since the subject policy of insurance specifically requires the insured to submit to an Examination Under Oath as a condition precedent to bringing suit. An insured sitting for an Examination Under Oath is a condition precedent to brining suit. “[T]he obligation to attend an EUO remains with the insured, and the insurer has a good defense to the. . .claim if the insured refuses to attend an EUO.” Marlin Diagnostics v. State Farm Mut. Automobile Ins. Co., 87 So.2d 469 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2828b] (quoting Advanced Diagnostic Testing Inc. v. State Farm Ins. Co., 11 Fla. L. Weekly Supp. 964c (Fla. 11th Cir. Ct. 2004). When an insured assigns his or her benefits, the obligation to attend an Examination Under Oath remains with the insured and the insured is precluded from recovery under the policy due to his or her own material breach. It would be impractical to have someone else sit for an Examination Under Oath in these circumstances, as it would lead to an absurd result. Progressive requested Nicole Cannon, with whom it entered into a contract for insurance benefits, sit for an Examination Under Oath, and her failure to comply with that request is a willful and material breach of the insurance policy. Amica Mut. Ins. Co. v. Drummond, 970 So.2d 456 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2907a]; see also Goldman v. State Farm Fire Gen Ins. Co. 660 So.2d 300 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a].
CONCLUSION
Because the condition precedent to submit to an Examination Under Oath was never met, Progressive was within its right to deny Nicole Cannon’s claim. Shazam, stepping into the shoes of Nicole Cannon, cannot maintain a lawsuit against Progressive for breach of contract when the condition precedents of the policy were not complied with. This precludes Shazam from filing suit where the insured failed to attend the Examination Under Oath.
Therefore, considering the aforementioned facts and analysis, it is hereupon ORDERED AND ADJUDGED that:
1) The Court finds that it is not in a position to determine if notice was properly given to Progressive.
2) The Court finds that there are no triable issues left as Nicole Cannon failed to sit for an Examination Under Oath, which is a condition precedent to bringing suit.
3) Defendant’s Motion for Summary Disposition is Granted for Nicole Cannon’s failure to submit to an Examination Under Oath.
4) The Court retains jurisdiction to enter a final judgment and to determine Defendant’s entitlement to attorney fees and costs.
