Professional Liability

After a motor vehicle accident, the insured received medical treatment from the plaintiff and assigned all his rights under his insurance policy to the plaintiff. The carrier took the insured’s Examination Under Oath (EUO), where he admitted to moving prior to executing the insurance application, which had his prior address listed. 

The carrier disclaimed coverage due to the insured’s misrepresentation of his primary residence on his insurance application. The carrier stated that had they known the insured’s correct address, they either would not have issued the policy or charged a higher premium. Thereafter, the carrier provided a notice of rescission and returned the insured’s premium. 

The plaintiff sent a demand to the carrier. In reply, the carrier advised that the claim was denied due to material misrepresentations on the insurance application. The plaintiff then sued for breach of contract. The carrier moved for summary judgment based on the insured’s admission at the EUO. The plaintiff argued the EUO was hearsay and not admissible as evidence for summary judgment. The trial court determined the EUO was admissible and ruled in favor of the carrier.

The plaintiff appealed, arguing that none of the summary judgment evidence was admissible, specifically the EUO, which was hearsay and not provided in compliance with Florida Statute § 92.33. The Third District Court of Appeal rejected the plaintiff’s argument that the EUO was inadmissible just because it was made outside of court and offered for the truth of the matter asserted. The appellate court found that Florida’s summary judgment standard [which reflected the federal standard] allows for hearsay as long as it can be presented in admissible form at trial. In the instant case, the insured was available to testify to the misrepresented address at trial, thus, it was proper summary judgment evidence. 

In regard to violation of Florida Statute § 92.33, requiring the insured receive a copy of a written statement, the court found that no authority was provided advising that an EUO was a written statement under Florida Statute § 92.33, but even if it was, there was no allegation that the carrier refused to provide it. It was also undisputed that the plaintiff received a copy of the EUO. Thus, the court affirmed the trial court’s final order in favor of the carrier. 

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_{Legal Update for Florida Coverage & Property Litigation – December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}