Raising Failure To Appear At A EUO As A Defense

In a recent decision from the Fifth District Court of Appeals an insurer’s ability to use the defense of an insured failing to attend an Examination Under Oath was examined. See Whistler’s Park, Inc. v. FIGA So.3d, 37 FLW D1188 (Fla. 5th DCA 5-18-2012). In the above case, Whistler’s Park appealed a summary final judgment entered in favor of FIGA based on Whistler’s Park’s refusal to submit to an Examination Under Oath (EUO).

The Fifth DCA reversed the trial court’s ruling and found that FIGA failed to plead and prove prejudice. Additionally, the Court of Appeals found that the record established that FIGA had not in fact been prejudiced. The Fifth DCA holding establishes that an insurer must prove that the insured’s failure to submit to the EUO in some fashion prejudiced the insurer before it can be raised as a valid defense.

Within the ruling the Fifth DCA cited another recent decision in State Farm v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011), which held, “To avoid liability under the insurance policy based on non-compliance with the CME clause, it was essential that the insurer plead and prove a material breach, which means a breach causing prejudice.

This string of case law examines and highlights the need for a prejudicial effect otherwise if the insured cannot establish the prejudicial effect they cannot then raise failure to appear to the EUO as a defense.