Cole, Scott & Kissane, P.A. wishes you a Happy and Healthy Holiday Season! It would, however, seem as though the Holidays have arrived just a bit early for the defense bar, ushered in by the first-ever, comprehensive decision on the viability of the Examination Under Oath No-Show Defense post the 2013 Amendments to the No-Fault Law.

As many of us recall, the Florida Supreme Court’s footnotes in Custer v. United Automobile Insurance Company, 62 So.3d 1086 (Fla. 2010) sounded what would ultimately become the “death knell” of the Examination Under Oath and its use as a viable defense to payment of No-Fault Benefits. Three years later, the Court clarified its holdings in Custer in Nunez v. Geico General Insurance Company, 117 So.3d 388 (Fla. 2013) explained that because the No-Fault statute did not provide for Examinations Under Oath an insurer could not require an insured to attend same as a condition precedent to recovery of Personal Injury Protection benefits. This was ultimately remedied by the Legislature in 2012 by revisions made to the No-Fault statute. See Ch. 2012-197, §10, Laws of Fla. (amending/creating §627.736(6)(g), Fla. Stat., effective 01/01/13). That being said, since the statutory amendment there have been no decisions addressing the validity and effect of the statutory amendment; its incorporation within policies of insurance or its legal classification as a condition precedent (as opposed to a condition subsequent) and the implications thereof. That is, until now!

December 4, 2015 the Honorable Donald Cannava, in the cases of Savin Medical Group, LLC (a/a/o Teresita Machado) v. State Farm Mutual Automobile Insurance Company (Case No.: 13-3408-CC-24) entered a ten page Order granting Defendant’s Motion for Final Summary Judgment predicated upon the insured’s failure to attend Examinations Under Oath. In this first-of-its-kind decision the Court held that the 2013 Statute unequivocally established an obligation for those seeking benefits under the policy to submit to an Examination Under Oath, categorizing same as a statutory condition precedent to receiving benefits. This decision is the first judicial acknowledgment and “ratification” of the “Custer/Nunez Fix” and permits carriers to adopt this provision within their policies of insurance.

The Court then analyzed the policy of insurance under which the claim was being made and under which the insurer was seeking to deny benefits, and in doing so the Court determined that not only was the statutory language appropriately adopted, giving notice to the insureds of their contractual obligation to submit to Examinations Under Oath, but that the policy language also created a condition precedent to receipt of Personal Injury Protection benefits. The Examination Under Oath provisions within the policy, along with the “No-Action” clauses contained therein, unequivocally barred the insured (and its assignees) from recovery of benefits once the claimant failed to submit to the insurer’s requests for Examinations Under Oath.

Yet, the foregoing would not be the most significant finding made by the Court that day. Judge Cannava astutely recognized the lack of any mitigating factors within either the statute or the policy of insurance, which would otherwise create an “unreasonable refusal standard” such as that which exists in §627.736(7)(a), Florida Statutes (concerning Compulsory Medical Examinations). Thus, the insurer need not prove the absence and the claimant may not plead the presence of reasonable circumstances leading to the failure to attend.

Having established submission to Examinations Under Oath as both statutory and contractual conditions precedent to receipt of benefits [distinguishing State Farm Mutual Automobile Insurance Company v. Curran, 135 So.3d 1071 (Fla. 2014)] the Court addressed the issue of prejudice and the insurer’s need to show substantial prejudice by the claimant’s failure to submit to the Examinations Under Oath requested, finding that as a condition precedent, there was no need to show substantial prejudice in order to properly deny benefits.

Of course, the details and nuances of a ten page order cannot be fully addressed in such a brief article. Accordingly, and until the Orders are published in the Florida Law Weekly we invite you to contact the attorney responsible for arguing the motions which gave rise to this truly ground-breaking and important articulation of the defense bar’s position on the issue of post-amendment application of  the Examination Under Oath No-Show Defense.