Lewis v. Liberty Mut. Ins. Co., 121 So. 3d 1136 (Fla. Dist. Ct. App. 4th Dist. 2013)

EUO is a valid condition precedent to the insured’s duty to pay PIP benefits and the plaintiff’s failure to appear for EUO was unreasonable.

The Fourth District Court held, consistent with Nunez v. Geico General Insurance Company, 117 So. 3d 388, 2013 Fla. LEXIS 1315 (Fla. 2013), that an examination under oath, as a condition precedent to the payment of PIP benefits by an insurer who is precluding recovery of benefits because the insured failed to attend an examination under oath, is unreasonable and unnecessary under Florida law. Here, the appellant was injured in an automobile accident and sought both PIP benefits and uninsured motorist protection. Her insurer requested the appellant to appear for a EUO. When the EUO did not occur, the appellant then filed suit for UM benefits, and the insurer moved to dismiss for failure to comply with the policy provisions.

The insurer moved for summary judgment, and the trial court entered final summary judgment, finding that the EUO was a valid condition precedent to the insured’s duty to pay PIP benefits and that the appellant’s failure to appear for the EUO was unreasonable. After the ruling, the Florida Supreme Court decided Nunez, which held that an EUO provision as a condition precedent to the payment of PIP benefits was invalid and contrary to the PIP provisions of § 627.736, Florida Statutes (2009). Although the legislature had enacted an amendment to that section which permitted EUOs, that amendment was enacted after the cause of action in Nunez accrued and, thus, did not apply. Similarly, the appellant’s cause of action accrued prior to the statutory amendment allowing EUOs. Therefore, based upon Nunez, the trial court’s final judgment had to be reversed.

 

Case Law Alert, 1st Quarter 2014