Miami-Dade Circuit Court Holds Attendance at Examination Under Oath (EUO) is a Condition Precedent to Suit
Jul 19, 2011
On July 13, 2011, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County Florida, acting in its appellate capacity in the case of State Farm Fire and Casualty Company v. Suncare Physical Therapy, Inc., Case No. 08-648 AP, held that an insured’s failure to attend a properly noticed Examination Under Oath (“EUO”), as required by the applicable policy of insurance, contractually barred suit by the insured’s medical provider/assignee, as it was a failure of an express condition precedent. The Suncare court discussed language in the recent Florida Supreme Court decision in Custer Med. Center v. United Auto. Ins. Co., 35 Fla. L. Weekly S640a (Fla. Nov. 4, 2010), indicating that insurance policy provisions requiring EUO’s as a condition precedent to suit, or that are not expressly permitted by the PIP statute, are unenforceable.
The Suncare court found the Custer language to be mere dicta, unrelated to the Custer Court’s holding, thus setting no precedent on the issue of EUO’s as conditions precedent. In taking this stance, the Suncare court disagreed with another decision from the 11th Judicial Circuit, United Auto Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. 11th Cir. Ct. Feb. 3, 2011), cert. denied, 3D11-866 (Fla. 3d DCA 2011), which had interpreted Custer as holding that attendance at EUO’s cannot be a condition precedent to suit because the same is not expressly provided by the PIP statute. In Suncare, the court reversed the lower court’s denial of State Farm’s motion for summary judgment and remanded the case for dismissal with prejudice, based upon the policy’s “no action” clause requiring the insured to comply with the provisions of the policy.
It should be noted that the Suncare decision comes from a county court, and is not binding precedent outside of the 11th Judicial Circuit. There is currently a case pending in the Fifth District Court of Appeal relating to whether medical providers are required to submit to EUO’s. Shaw v. State Farm Fire and Cas. Co., Case No. 5D07-3136. In December, 2010, the Shaw court asked for briefs from the parties regarding the effect of Custer upon the Shaw court’s holding that medical providers are not required to submit to EUO’s. See Shaw, 37 So. 3d 329 (Fla. 5th DCA 2010).
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