Florida law is unclear as to whether an insured's appearance at EUO is deemed a condition precedent to PIP coverage.

The Appeals Court certified question to Florida Supreme Court: "[w]hether, under Fla. Stat. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?" The plaintiff, a claimant of GEICO, brought the instant action when her claim for PIP benefits was denied by the carrier following her failure to appear for an examination under oath (EUO). GEICO defended on the grounds that appearing at an EUO is a prerequisite to coverage under its policy. A lower court found that "[t]here was no language in the PIP statute prohibiting an insurer from requiring an EUO." The Appeals Court noted that "[w]hile there is a long history of Florida courts generally affirming the right of an insured to require EUOs prior to payment of benefits, these cases deal with insurance contracts not based on statute." The court perceived a split in Florida authority in the context of the PIP statute by virtue of dicta contained in two prior Florida cases. Specifically, in the matter of Shaw v. State Farm Fire & Cas. Co., 37 So. 3d 329 (Fla. Dist. Ct. App. 2010), the court stated that "[i]t is undisputed that a provision in an insurance policy that requires the insured to submit to an EUO qualifies as a condition precedent to recovery of benefits." However, in Custer Med. Ctr. v. United Auto Ins. Co., 62 So. 3d 1086 (Fla. 2010), a case having nothing to do with EUOs, the Florida Supreme Court offered the following dictum in a footnote: "[a] purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage…permitted under the statutory provisions." Thus, in the event it considers the above-referenced certified question, the Florida Supreme Court must decide whether to follow the Shaw precedent, the Custer dictum or to carve out a compromise between the two. But see 2012 Fl ALS 197 (effective January 1, 2013, amending Fla. Stat. § 627.736 to provide, under Fla. Stat. § 627.736(6)(g) that "[a]n insured seeking benefits…must comply with the terms of the policy, which include…submitting to an examination under oath."

Case Law Alert - 3rd Qtr 2012