Florida Third District Court of Appeal Holds EUO Testimony is Admissible Evidence for Summary Judgment Ruling

By Zachary D. Sonenblum

In Universal X Rays v. United Automobile (No. 3D24-0777; Lower Tribunal No. 21-26593-SP-05; Opinion filed October 8, 2025), Florida’s Third District Court of Appeal allowed EUO testimony to be presented as summary judgment evidence and rejected the argument that the EUO testimony was inadmissible hearsay. 

In July of 2020, the Insured was involved in a motor vehicle accident. The Insured received medical treatment from Universal X Rays (hereinafter “Universal”), and assigned all rights under his United Auto Insurance Policy to Universal. Following the accident, United Auto conducted the Insured’s Examination Under Oath (“EUO”), and the Insured admitted during the EUO that he moved to his new address before signing the Policy Application, but still listed his old address on the Policy Application. About two months after the EUO, United Auto sent the Insured a letter disclaiming coverage because he had misrepresented his primary residence on the Policy Application. The letter also stated “[h]ad we been aware of the proper information regarding the … garaging address, we would have either not have issued the policy or we would have issued it at a substantially higher premium.” United Auto subsequently sent the Insured a Notice of Rescission and a check returning the insurance premium. 

Thereafter, Universal—as assignee of the Insured—sent United Auto a demand for payment, and United Auto informed Universal that coverage had been denied due to a material misrepresentation in the Policy Application. Universal then sued United Auto for breach of the Policy, and United Auto raised material misrepresentation as an affirmative defense.

Universal argued that the Insured’s EUO was inadmissible hearsay and was not provided to the Insured as required by Fla. Stat. § 92.33. The trial court determined that the EUO was admissible summary judgment evidence and that no violation of § 92.33 had occurred. Further, since Universal failed to otherwise contest the EUO, the trial court entered Final Summary Judgment in favor of United Auto, and Universal appealed.

On appeal, Universal again did not point to any summary judgment evidence disputing the Insured’s EUO, and merely reasserted the same two (2) arguments. Specifically, Universal argued that the EUO is not admissible because 1) it is inadmissible hearsay and 2) a copy was never provided to the Insured as required by § 92.33.

The Third DCA rejected Universal’s argument that the EUO transcript was inadmissible hearsay because under Florida’s summary judgment standard—which mirrors the Federal summary judgment standard—“hearsay may be used so long as it can be presented in admissible form at trial.” The Court further explained:

Here, the Insured’s admitted misrepresentation in his EUO could be reduced to admissible form if the Insured were to testify directly at trial. It is therefore proper summary judgment evidence. Moreover, because Universal did not offer any evidence of its own to dispute this, the trial court did not err in granting summary judgment based on the Insured’s EUO.

The Third DCA also rejected the argument that Fla. Stat. § 92.33 was violated. In rejecting such an argument, the Court explained that:

the Insured’s EUO was not merely a statement taken by United Auto. It was a sworn statement by the Insured, with counsel present, transcribed by a court reporter and notary public. Universal has cited no authority holding that such an EUO is a written statement under section 92.33. But assuming, arguendo, that this section applies, there are no allegations that United Auto refused to furnish a copy of the statement to the Insured when requested. And it is undisputed that Universal received a copy. We therefore reject Universal’s argument that the Insured’s EUO was inadmissible under section 92.33.

Accordingly, the Third DCA affirmed summary judgment in favor of United Auto “[b]ecause the Insured’s EUO was admissible summary judgment evidence and Universal failed to present any counter evidence to dispute the Insured’s sworn admission that he made a material misrepresentation in his Policy Application.”