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SIU Spotlight

Florida Appellate Court Sets Record Straight on Longtime Misconception of Examinations Under Oath as Admissible Evidence

May 15, 2026

by Sean P. Greenwalt

The Florida Third District Court of Appeal recently overturned a long standing assumption regarding the admissibility of examinations under oaths (“EUOs”) as trial evidence in Universal X Rays, Corp. v. United Auto. Ins. Co., 422 So. 3d 1203 (Fla. 3d DCA 2025), reh'g denied (Nov. 3, 2025). For years, a longstanding mythos existed around EUOs in Florida that they could not be used in litigation because of a multitude of reasoning: hearsay, trustworthiness, due process, creation in anticipation of litigation, among other common critiques. Such was the situation that great evidence could be potentially unearthed in an EUO, but if it could not be independently verified by other means, certain evidence as to fraudulent or denied coverage claims would never see the light of day.

In Universal X Rays, the assignee and insured, Miguel LaRosa-Ferrer sat for an examination under oath per his insurance policy following a car accident. The EUO was conducted via videoconference with a court reporter and the insured had an attorney present. During the required examination, the insured admitted that he had moved to a new address shortly before applying for the insurance policy but continued to list his old address on the application. This resulted in a lower premium for the insured. Two months later, United Auto sent a letter to the insured rescinding the policy, citing material misrepresentation of the garaging address, and returned the premium.

Several months later, the appellant, Universal, sued United Auto for breach of contract after it denied a medical billing reimbursement request for no-fault personal injury protection benefits. United Auto eventually moved for summary judgment on the issue of material misrepresentation with its key piece of evidence being the EUO transcript. Universal argued that the EUO transcript was inadmissible as improper hearsay, an out of court statement by a declarant offered for its truth, and that it violated section 92.33, Florida Statutes (2025) because the insurer did not provide a copy of the transcript to the insured. However, Universal offered no actual evidence disputing that the insured committed a material misrepresentation.

The lower trial court disagreed with Universal’s legal arguments and because no evidence disputing the material misrepresentation was presented, entered final judgment for United Auto. Unsurprisingly, Universal promptly appealed, as there is a history of trial courts in Florida finding EUOs to be inadmissible for numerous reasons leading to a long fabled belief in the industry as to the same.

For example, in JJZ Medical Center, Inc., v. United Auto. Ins. Co., 32 Fla. L. Weekly Supp. 432a, (Fla. 11th Jud. Cir. Cty. 2024), a Miami-Dade trial court declined to review an examination under oath demonstrating material misrepresentation after an insured signed an affidavit to the contrary and it was submitted as evidence. The court held that the EUO could not be admissible because there was no cross-examination of the witness making it “inherently untrustworthy.” The court went on to state that an EUO transcript met no exception to hearsay exclusions under Florida law either such as former testimony or a business records exception.

Another County Court in Miami-Dade excluded an EUO transcript involving a material misrepresentation summary judgment because it was not provided to the declarant nor adopted by the declarant per § 92.33 Fla. Stat, and would be considered hearsay. Manuel V. Feijoo, M.D., aao Andisleydis Sordo Perez v. United Auto. Ins. Co., 31 Fla. L. Weekly Supp. 382a (Fla. 11th Jud. Cir. Cty. 2023). In this case, the court honed in on the argument that an examination under oath, while sworn, lacks personal knowledge of the declarant because it is not provided to them, nor do they adopt it after it is transcribed. § 92.33 Fla. Stat requires a written statement by an injured party to be provided to that individual or it may not be used in a later civil action. The court held this statute to applicable and, thus, excluded the EUO transcript.

Both of these common lower court arguments were then brought up on appeal by Universal. They argued to the Third District Court of Appeal that the EUO was inadmissible hearsay, violating Florida Statute § 92.33, which requires a copy of a written statement to be provided to the declarant. However, Third District Court of Appeal rejected both arguments and for a reason that seemed to catch the appellant off-guard.

First, the court cited Florida’s revised summary judgment standard, which in 2021, aligned Florida’s Rule 1.510 with the federal summary judgment standard Rule 56. Using the full benefit of federal case law, the court held that hearsay is permissible “as long as it can” be presented in admissible form at trial—such as through live testimony. In such instances, the proper response from an opposing party is to present conflicting evidence of the statement. However, in this case, Universal put forth no evidence that the insured’s garage address was not materially misrepresented, and, thus, they lost this issue.

The Third District rejected the argument that the insurer violated § 92.33 Fla. Stat., noting that the statute only requires “written statements” to be provide to an injured person. The court held that an EUO, which is a sworn transcribed statement, would not even be covered by § 92.33, and the appellant failed to provide any authority to the contrary. Given that appellant’s statutory argument did not apply and it presented no evidence to contradict the examination under oath, which could be reduced to admissible form at trial, the Third District affirmed the admissibility of the EUO in favor of the insurer.

The significance of the Universal X Rays opinion now means EUOs are an even stronger fraud deterrent in Florida. They can be taken with confidence and utilized to stem frivolous litigation and claims at much earlier phases than before. Rather than ignore the EUO transcript, opposing parties now must affirmatively disprove that fraud has occurred once it is admitted.

Firm Highlights

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

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106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. 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