Did the Florida Supreme Court’s Decision in Geico v. Nunez Affect A Homeowners Insurer’s Right to an Examination Under Oath?
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On June 27, 2013, the Florida Supreme Court issued an opinion in Geico v. Nunez that appears to limit an insurer’s right to deny a claim based on an insured’s failure to comply with the examination under oath (“EUO”) provision.A more accurate interpretation, however, is that the Court opined that personal injury protection coverage (“PIP”) insurers cannot deny an insured’s claim based on a failure to submit to an EUO.
In Geico, the insured was allegedly injured in a car accident on September 17, 2008.On October 26, 2009, Geico filed a declaratory action in a Florida trial court which was subsequently removed to federal court.Geico asked the court to determine whether the insured could obtain PIP benefits despite failing to submit to Geico’s requested EUO.Nunez argued in response that Geico’s position conflicted with Florida’s PIP statute, Fla. Stat. 627.736 (2008).The federal district court, finding no cases supporting Nunez’s position, held Geico was entitled to dismissal because Nunez failed to submit to the EUO. On appeal, the Eleventh Circuit “punted” the decision to the Florida Supreme Court.
The Florida Supreme Court held in favor of Nunez, finding that Florida’s No-Fault statute was mandatory and the EUO provision was inconsistent with the statute’s purpose of promptly providing “virtually automatic” coverage for PIP claims.The Court further found the EUO provision was “unreasonable and unnecessary under Florida law.”The Court also determined the EUO provision was “invalid.”Accordingly, it appears that EUOs are no longer a condition precedent to PIP coverage.
Does this harsh language against insurers’ policy rights apply to property insurance claims?While the Court does not promise that property insurers are exempt from this holding, the Court does not disturb any property cases upholding an insurer’s right to demand an EUO.The Court also makes clear that this holding should be distinguished from cases that do not involve PIP claims.In other words, although the Court went to great lengths to say that its holding does not apply to any other type of claim at this time, the Court does not guarantee anything to property insurers.
The opinion seems to say that property insurers are exempt from its holding, however, expect insureds and their attorneys in property claims to make arguments similar to the one made by Nunez. Property insurance is not mandatory like PIP insurance, so the Court’s plain language should shield property insurers from its holding. Furthermore, because the Court limited its application to the PIP statutes, Florida law still holds that EUOs are still conditions precedent in property claims (depending on the jurisdiction).
In short, given that the Court did not disturb the holdings in all of the property cases cited in its opinion, I believe the Court has held that Nunez’s arguments will not suffice in the context of the property insurance claim.
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