6 Fla. L. Weekly Supp. 113e
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer in action brought by vehicle passenger on ground that passenger failed to submit to sworn statement prior to filing suit where there was factual issue as to whether passenger was informed of alleged requirement contained in automobile owner’s PIP policy
ANTOINE SANDAIRE, Appellant, vs. U.S. SECURITY, INSURANCE COMPANY, a Florida Insurance Company, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-432 AP. L.T. Resolution No. 96-03844. Opinion filed November 20, 1998. An Appeal from County Court for Dade County, Harvey L. Goldstein, Judge. Counsel: Natascia Ayers, for appellant. Mike Nuzzo and David B. Pakula, for appellee.
(Before NORMAN S. GERSTEIN, PAUL SIEGEL, and GERALD D. HUBBART, JJ.)
(PER CURIAM.) Appellant, ANTOINE SANDAIRE (“Sandaire”), appeals the trial court’s order granting a motion for summary judgment in favor of the Appellee, U.S. SECURITY, INSURANCE COMPANY (“Security”). We find that the trial court erred in entering summary judgment. Accordingly, we vacate the order and remand the matter to the trial court for further proceedings.
A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. St. Pierre v. United Pacific Life Ins. Co., 644 So. 2d 1030, 1031 (Fla. 2d DCA 1994); citing Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979); Moore v. Morris, 475 So. 2d 666 (Fla. 1985). We find that sufficient genuine issues of material fact exist concerning the processing of the claim by Security and the requirement that a sworn statement be given by Sandaire which would preclude the entry of a summary judgement. Jones v. State Farm Mut. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997).
Security issued a PIP policy which provided, in Part F (Duties After An Accident), that a person seeking any coverage or benefit must:
Cooperate with us in the investigation, evaluation, settlement of defense of any first party or third party claim or suit. Cooperation includes but is not limited to providing oral, sworn or written statements and submitting to physical examination by physicians selected by the company.
It further provided that “No legal action may be brought against us until there has been full compliance with all the terms of this policy.” Part E (Florida Motor Vehicles No Fault Law; Section 1 Personal Injury Protection; Conditions), states in part:
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 reasonable proof of claim has been filed with the Company.
This section further provides, “As soon as practicable the person making the claim shall give to the company written proof of claim, under oath if required…” The court below interpreted these provisions to be a condition precedent to Sandaire bringing suit and the court held that Sandaire was barred from recovering PIP benefits due to his failure to submit to a sworn statement.
Generally, a policy provision requiring an insured to submit to an examination under oath is considered to be a condition precedent to suit. See Goldman v. State Farm General Insurance Company, 660 So. 2d 300, 303 (Fla. 4th DCA 1995); see also DeFerrari v. Government Employees Insurance Company, 613 So. 2d 101 (Fla. 3d DCA 1993) rev. denied, 620 So. 2d 760 (Fla. 1993). Candanosa v. U.S. Security Insurance Company, 3 Fla. L. Weekly Supp. 566 (Fla. 11th Jud. Cir. December 29, 1995).
Sandaire was not an insured under Security’s PIP policy. Sandaire was a passenger in an automobile that was insured for PIP coverage by Security. He did not own an automobile nor did he reside with anyone who did; therefore, he was asserting PIP coverage under the automobile owner’s policy which was issued to the owner by Security. Sandaire also asserted a claim for damages against the owner’s bodily injury liability policy which was issued by Security. Genuine issues of material fact remain concerning whether Sandaire was informed of the alleged requirement of a sworn statement contained in the automobile owner’s PIP policy. Additional genuine issues of material fact, concerning Security’s processing of his claim also remain.
The burden of proof is on the party moving for a summary judgment to demonstrate conclusively that the non moving party cannot prevail. Snyder, 373 So. 2d 719. We find that Security failed to meet this burden; therefore we vacate the order granting summary judgment in favor of Security and remand the matter to the trial court for further proceedings. See Central Metal Fabricators v. Travelers Indem. Co. of America, 703 So. 2d 1251 (Fla. 3d DCA 1998). Pursuant to §627.428(1), Fla Stat. (1996), Sandaire is entitled to an award of appellate attorney’s fees. Accordingly, we grant the Appellant’s Motion for Attorney’s Fees and direct that the trial court determine the amount of the fees allocable to the issues upon which Sandaire ultimately prevails. See Lumberman’s Mutual Casualty Company v. Percefull, 638 So. 2d 1026 (Fla. 4th DCA 1994).
REVERSED AND REMANDED.
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