Third District Court of Appeal Holds Insured’s Failure to Appear for EUO Entitles Insurer to Summary Judgment

By Kelly M. Vogt

In Infinity Auto Ins. Co. v. Miami Open MRI, the Third District Court of Appeal held that an insured’s failure to appear for an examination under oath (“EUO”) entitled the insurer to summary judgment.  

In this personal injury protection (“PIP”) case, the insured had allegedly been injured in an automobile accident. After failing to appear for two examinations under oath (“EUO”), the insured sought medical treatment for his injuries from a medical provider. Payment for this medical treatment was ultimately denied based on the insured’s failure to appear for his EUO.

The medical provider, as the insured’s assignee, sued the insurer for breach of contract. The insurer raised one affirmative defense: that the medical provider was not entitled to benefits because of the insured’s failure to appear for his EUO, which constituted a failure to comply with a condition precedent to receiving benefits under the terms of the subject policy. Cross motions for summary judgment were filed on the insurer’s affirmative defense, and the trial court granted the medical provider’s motion and denied the insurer’s motion. The trial court found that the insurer’s EUO notices were ineffective because they were not provided to the insured’s attorney and because the insurer was not prejudiced from the insured’s failure to attend. 

On appeal, the Third District Court of Appeal found that there was no evidence in the record to show that the insured had identified his attorney to the insurer. Thus, the insured failed to submit to a properly noticed EUO, which is a condition precedent to receipt of PIP benefits under Florida law and the subject policy.  The Court also noted that prejudice is not an element of the insurer’s affirmative defense. Accordingly, the Court reversed the trial court’s entry of summary judgment and remanded the case with instructions to grant summary judgment in favor of the insurer.

Kelly Vogt focuses her practice on first party property and insurance coverage matters. She is also experienced in the areas of third party liability, appellate law, general civil litigation, and professional liability defense.