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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

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

Thought Leadership

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.

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

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.