Seth B. Altman

The insured appealed a final judgment in the insurer’s favor, claiming the insured breached the policy by failing to submit to an examination under oath (EUO). The appellate court found that the trial court erred because an issue of fact remained regarding “whether the insured cooperated to some degree or provided an explanation for not proceeding with examination in the presence of only the the insurer’s videographer and court reporter, without the presence of the insured’s videographer and court reporter.”

The insured was scheduled to appear for the EUO where the insurer’s videographer and court reporter would be present. Before the EUO, insured’s counsel advised they would be coming with their own videographer and court reporter. This was to protect the record due to alleged issues with the insurer’s court reporter’s history of alleged material transcription errors. The insurer objected to the insured bringing a second videographer and court reporter. The insured appeared with their own videographer and court reporter. The EUO did not proceed, and the insurer denied the claim. 

The policy provided that, in the event of a loss, the insured was required to “[s]ubmit to examination under oath, while not in the presence of any other ‘insured’….” At the hearing on summary judgment, the insurer alleged the insured did not sit for the EUO and did not comply. The insured claimed she sat for the EUO and “complied to some degree” but the “acrimonious relationship between the parties’ attorneys prevented the examination from proceeding.” 

On appeal the court found an issue of fact remained as to whether the insured “refused to comply” with the EUO in the presence of only the insurer’s videographer and court reporter (citing, Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995). Because the policy allowed either party to prevent a third party’s presence, an issue of fact remained as to whether the insured cooperated to some degree or provided an explanation for not proceeding. 

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