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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

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What’s Hot in Workers’ Comp - News and Results*

RESULTS ​Perry Merlo (Harrisburg) obtained a favorable ruling involving a claimant who sustained a recognized lower back injury while employed by the defendant and continued to seek workers’ compensation benefits. Following an independent medical examination, Perry filed a termination petition alleging that the claimant had fully recovered from her work injury as of September 10, 2025. The claimant opposed the petition and presented testimony from her own medical expert. The judge granted the termination petition, finding the testimony of the defense medical expert more credible than the testimony of the claimant and her expert; and finding that the claimant had fully recovered from her work-related injury as of September 10, 2025. Kacey C. Wiedt (Harrisburg) secured a complete victory involving a alleged hand laceration resulting additional shoulder and upper extremity injuries. The defense successfully demonstrated that the claimant did not sustain the additional injuries alleged, had fully recovered from the accepted injury, and was terminated for performance-related reasons unrelated to his work injury. Relying in part on text messages and photographs that contradicted the claimant’s alleged limitations, the defense secured a decision denying the claim petition in its entirety and granting the termination petition effective June 10, 2025. The claimant recovered no additional benefits despite previously making a $230,000 settlement demand. Anthony Natale III (King of Prussia) secured a complete defense victory involving an alleged ongoing disability following a work-related cervical spine injury sustained in a truck accident. The defense successfully demonstrated that the claimant had been released to return to full-duty work, was subsequently discharged for cause after failing a mandatory drug test, and had fully recovered from his work injury. Following litigation of both the suspension and termination Petitions, the court found that the claimant was capable of returning to unrestricted employment and had fully recovered from his cervical spine injury. Anthony Natale III (King of Prussia) secured a complete defense victory involving an allegation of ongoing orthopedic and neurological injuries, including post-concussion syndrome, resulting from a motor vehicle accident while volunteering for the township. The defense successfully demonstrated that the claimant had fully recovered from her work-related injuries and was exaggerating her symptoms. Finding the defense medical expert more credible, the court granted the termination petition and concluded that the claimant had fully recovered. The court also dismissed all four of the claimant’s review petitions challenging prior utilization review determinations that found her medical treatment to be unreasonable and unnecessary. Anthony Natale III (King of Prussia) secured a complete defense victory involving a low back injury. The defense successfully demonstrated through medical evidence that the claimant had fully recovered from her work injury. Following litigation of the termination petition, the court found the defense expert credible and concluded that the claimant was fully recovered. The court granted the termination petition despite the claimant proceeding without counsel and arguing that personal circumstances prevented her from adequately defending the matter. As a result, the claimant’s entitlement to ongoing workers’ compensation benefits was terminated. . *Prior Results Do Not Guarantee a Similar Outcome NEWS Congratulations to Kacey Wiedt on being named Best Lawyers in America® 2027 "Lawyer of the Year." We are also proud to celebrate our firm’s 14 workers’ compensation attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America. This distinction is especially meaningful, as fewer than 6% of practicing attorneys in the United States earn recognition from their peers through the Best Lawyers selection process. The Best Lawyers in America® Heather Byrer Carbone Daniel W. Deitrick Benjamin K. Durstein Linda Wagner Farrell Keri L. Morris-Johnston Anthony Natale III Michele R. Punturi Andrea C. Rock Robin M. Romano Robert P. Schenk Michael A. Sebastian Francis X. Wickersham A. Judd Woytek Best Lawyers: Ones to Watch® in America Alana Staniszewski Angela DeMary (Mount Laurel) is presenting at the National African American Insurance Association (NAAIA) Annual Conference on September 24. In a panel workshop session, "Old Instincts, New Tools: How AI is Actually Transforming Claims Handling," Angela will discuss existing and emerging AI techniques relevant to claims and legal defense, and explore how AI works alongside traditional methods to improve efficiency and outcomes. For more information, click here. Judd Woytek (King of Prussia) is speaking at the National Comp conference in Las Vegas in September. He joins a group of panelists to present “Older, Wiser, But Costlier to Heal: What an Aging Workforce Means for Employers and for the Industry,” a discussion focused on the challenges employers face in balancing safety, compliance, and productivity as the workforce continues to age. Judd and his co-presenters will address proactive strategies to reduce workplace risk, support older employees, navigate age-discrimination and workers’ compensation issues, and build a safer, more resilient workforce. For more information, visit National Comp. Conference and Trade Show.

News

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. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants