Florida Supreme Court Asked to Determine Whether EUOs are Allowed Under Florida PIP Law
Apr 10, 2012
On April 3, 2012, in the case of Nunez v. Geico, the Eleventh Circuit Court of Appeal certified the following question to the Florida Supreme Court: “Whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?” Recognizing that the law in Florida “is unclear in the context of statutorily mandated insurance and the Florida No-Fault Statute” the federal appellate court is seeking guidance from the state Supreme Court. The answer to this question may impact thousands of claims in which insurers have utilized examinations under oath or “EUOs” in investigating a Personal Injury Protection (“PIP”) claim under the No-Fault laws.
In its written opinion, the three judge appellate panel recognized that outside of the statutory PIP context, Florida courts have long held that EUOs are conditions precedent to coverage. However, they noted that Florida Supreme Court decision in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010) has caused conflict in the lower state courts. While specifically recognizing that the Supreme Court’s reference to EUO’s in the Custer decision was obiter dicta and non-binding, the Eleventh Circuit pointed out that there were currently two competing interpretations of the Custer decision:
Although the Florida Supreme Court’s statements on EUOs in Custer are dicta, at least one Florida court finds the decision persuasive. See United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a, at *5 (Fla. Cir. Ct., Feb. 3, 2011)(relying on Custer and holding that an EUO cannot be a condition precedent to payment of medical bills under a PIP insurance policy), but cf. State Farm Fire & Cas. Co. v. Suncare Physical Therapy, Inc., No. 08-648 AP, at *5 (Fla. Cir. Ct., July 13, 2011) (finding that the EUO statements in Custer were dicta and could not be relied upon as precedent and thus holding that EUOs are permissible conditions precedent to the payment of PIP benefits under automobile insurance policies in the State of Florida). To date, Diaz is the only Florida case that clearly holds that an EUO cannot be a condition precedent to PIP recovery.
The Nunez case involves a putative class action claim filed in federal court. The federal trial court had dismissed the class action complaint for failure to state a cause of action. The court’s decision has no impact on the recent legislative amendments to the PIP statute which go into effect on January 1, 2013 and explicitly allow the use of examinations under oath in PIP cases.
A copy of the opinion is attached for review.
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