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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

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.