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RECENT FLORIDA SUPREME COURT CASE IMPACTS EUOs

Michael C. Clarke | October 8, 2013

On June 27, 2013, the Florida Supreme Court issued its highly anticipated decision and opinion in Nunez v. GEICO Gen. Ins. Co., 38 Fla. L. Weekly S440a (Fla. 2013). The Nunez court found that under §627.736, Fla. Stat. (2008), PIP insurers cannot require insureds to attend an examination under oath as a condition precedent to the payment of PIP benefits. The Court found that "[s]ection 627.736, Florida Statutes (2008) is silent regarding EUOs – it does not authorize their use, much less denial of benefits for failure to attend one." Thus, the court found a well-recognized, policy-based right to obtain an EUO to be invalid where the right was contrary to the statute’s terms.

The Nunez court then addressed §627.736(6)(g), Fla. Stat. (2012), effective January 1, 2013, requiring insureds seeking PIP benefits to "comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath." The court determined that the 2012 amendment was not just a legislative clarification of the PIP statute, but was instead a substantive change, which did not control the outcome of the case. The court provided the additional comment that no position was being taken "on the applicability or validity of the 2012 amendment." Of course, the court’s decision to not address the amendment leaves open the possibility of further challenges to its validity and application.

In summary, the Nunez opinion affirmatively finds that a failure to attend an EUO cannot serve as a basis to deny a claim for fulfilling a condition precedent to payment. However, the question remains how the court will decide the issue under the 2012 amendment of an EUO as a condition for seeking benefits.

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