3 Fla. L. Weekly Supp. 566c
Insurance — Personal injury protection — Where policy contained provision requiring insured to submit to sworn examination as a condition of the insurance contract, insured’s failure to submit to examination under oath constituted material breach of policy which relieved insurer of obligation to pay
JORGE CANDANOSA, Appellant, vs. U.S. SECURITY INSURANCE CO., Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 95-088 AP. Opinion Filed December 29, 1995. An appeal from the COUNTY COURT for Dade County, Lawrence A. Schwartz, Judge. Counsel: Todd R. Schwartz, for Appellant. David B. Pakula, Michael Nuzzo, for Appellee.
(Before MARTIN KAHN, EUGENE J. FIERRO AND GERALD D. HUBBARD, JJ.)
(EUGENE J. FIERRO, J.) Appellant Jorge Candanosa was injured in an automobile accident in June 1993. At the time of the accident, appellant was the holder of a PIP policy issued by appellee U.S. Security Insurance Company. Appellant timely reported the accident to appellee and submitted claims for PIP benefits between August and October, 1993.
In February 1994, appellee requested through counsel that appellant give a sworn statement about the accident. Appellant’s attorney refused to allow appellant to give the sworn statement and appellant filed suit a week later to obtain payment of PIP benefits. Appellee filed a motion for summary judgment, arguing that appellant breached the terms of the contract by refusing to give a sworn statement. In opposition to the motion for summary judgment, appellant argued that appellee’s failure to pay the PIP benefits within 30 days after being furnished written notice was a material breach of the insurance contract which excused appellant’s further performance under the contract. See §627.736(4)(b), Fla. Stat. The trial court granted summary judgment for the insurance company, and appellant filed a timely notice of appeal. We affirm.
Part F of the insurance contract, entitled “DUTIES AFTER AN ACCIDENT OR LOSS” provides that a person seeking coverage or benefit must:
1. Cooperate with us in the investigation, evaluation, settlement of [sic] defense of any first party of third party claim or suit…Cooperation includes but is not limited to providing oral, sworn or written statements and submitting, to physical examinations by physicians selected by the Company.
In addition, under CONDITIONS, the contract provides:
2. Action Against the Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all terms of this insurance, nor until 30 days after the required notice of accident and reasonably proof of claim has been filed with the Company.
3. Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. As soon as practicable the person making the claim shall give to the Company written proof of claim, under oath if required, which may include full particulars of the nature and extent of the injuries and treatment received and contemplated, and such other information as may assist the Company in determining the amount due and payable. Such person shall submit to mental or physical examinations at the Company’s expense when and as often as the Company may reasonably require. A copy of the medical report shall be forwarded to such person if requested. If the person unreasonably refuses to submit to an examination the Company will not be liable for subsequent personal injury protection benefits.
The rule in Florida is that an insurance company, in order to avoid liability under its policy on the ground that the insured violated the cooperation clause, must show that the lack of cooperation was material and that it was substantially prejudiced in the particular case by such lack of cooperation. Bankers’ Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985); Bontempo v. State Farm, 604 So. 2d 28, 29 (Fla. 4th DCA 1992); Leasing Service Corporation v. American Motorists Insurance Co., 496 So. 2d 847, 850 (Fla. 4th DCA 1986); Rustia v. Prudential Property and Casualty Insurance Co., 440 So. 2d 1316 (Fla. 3d DCA 1983). The failure of the insured to cooperate and the prejudice to the insurance company derived from this failure are questions of fact for the jury. Leasing Service Corporation, supra, 496 So. 2d at 847. Thus, if what appellant failed to comply with was a cooperation clause, the trial court’s entry of summary judgment in favor of the appellee would have been improper.
However, the policy provision that no suit can be sustained until full compliance with all terms of the policy is a condition, as is the insured’s agreement to submit to an examination under oath. Where the policy provision requiring the insured to submit to a sworn examination is a condition of the contract, an insured’s 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. Pervis v. State Farm Fire and Casualty Co., 901 F. 2d 944 (11th Cir. 1990); Southern Home Ins. Co. v. Putnal, 49 So. 922, 932 (Fla. 1909); Stringer v. Fireman’s Fund Insurance Co., 622 So. 2d 145 (Fla. 3d DCA 1993), review denied, 630 So. 2d 1101 (Fla. 1993). Hence, as a result of appellant’s material breach of a condition of the contract, appellee was relieved of its obligation to pay. Therefore, the trial court properly entered summary judgment in favor of appellee.
AFFIRMED.
* * *
