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Florida First-Party Property Case Law Signals That Insurance Carriers Need Only Request an Examination Under Oath Via Mail

A Plaintiff’s Failure to Schedule an EUO Is Failure to Appear

January 5, 2024
February 19, 2021

Failing or refusing to respond to a written request for an Examination Under Oath (“EUO”) can result in a complete bar to recovery in a first-party property insurance claim.

The typical Florida homeowner’s insurance policy contains the following provision: “As often as we reasonably require: Submit to examination under oath, while not in the presence of another insured, and sign the same.” The purpose of the EUO is to enable the insurance company to learn information necessary to process a claim. To obtain the EUO, the insurance company will typically send a letter via regular mail to the insured’s address, which appears in the homeowner’s policy.

In some cases, the written request for the EUO is ignored. The plaintiffs’ bar argues that a violation of the EUO provision can occur only if the insured fails to appear for his or her examination. The mantra peddled is that the failure to schedule an EUO is not the same as the failure to appear for an EUO. This mantra is not true.

The controlling case law requires only that the request for the EUO be mailed to the insured: it makes no difference that the EUO was never mutually coordinated and/or that the insured’s failure was not willful. See Sweeney v. Citizens Property Insurance Corporation, 43 So. 3d 842 (Fla. 1st DCA 2010)(“. . . Sweeney failed to appear for an examination under oath, despite repeated attempts by Citizens to contact her at her address of record for the purpose of scheduling the examination”).

In Florida, “there is a rebuttable presumption that mail properly addressed, stamped, and mailed was received by the addressee.” See Sweeney v. Citizens Property Insurance Corporation, 43 So. 3d 842 (Fla. 1st DCA 2010). “The presumption arises only where there is proof that the mail was being sent to the correct address.” Id. If the written request for an EUO is sent via regular mail to the insured’s address that appears in the policy, then the insured will be presumed to have received the request.

In Sweeney, supra, the court writes: “The record demonstrates that Citizens mailed several letters to Ms. Sweeney’s correct address.” Id. at 843. “Each of the letters from Citizens was sent to the same address . . . and two of the letters were received at that address.” Id. “Based on this record evidence, Ms. Sweeney is presumed to have received the letters from Citizens.” Id.

It is not enough for an insured to claim that the refusal to respond was “not willful.” In Sweeney, supra, the insured asserted that “she should be relieved of this obligation [to appear for an EUO] under her policy because her failure was not willful.” Id. at 843. “In support, she argue[d] that during the course of pursuing her claim against Citizens she met repeatedly with adjusters representing Citizens and responded to discovery requests submitted by Citizens during the court of litigation.” Id. The First District concluded: “. . . her arguments are unsupported by the law.” Id. “Even if Ms. Sweeney complied with Citizens’ discovery requests or cooperated with Citizens in other respects, Ms. Sweeney was still required to submit to the examination under oath as a condition precedent to filing suit.” Id.

Appearing for a post-suit deposition also does not substitute for compliance with this condition precedent. The court in Goldman v State Farm Fire Florida Ins. Co., 660 So. 2d 300, 304 (Fla. 4 DCA 1995), addressed this distinction:

“We are unpersuaded that appellee’s post-suit deposition of appellants obviated any prejudice to appellee. The policy does not provide that depositions may be substituted for examinations under oath as appellants suggest.  Rather, depositions and examinations under oath serve vastly different purposes.  First, the obligation to sit for an examination under oath is contractual rather than arising out of the rules of civil procedure. Second, an insured’s counsel plays a different role during examinations under oath than during depositions. Third, examinations under oath are taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claim investigation process.  Fourth, an insured has a duty to volunteer information related to the claim during an examination under oath in accordance with the policy while he would have no such obligation in deposition.  Finally, the insurer has the right to examine insured independently in sworn examinations while it would have no parallel right to do so under the Florida Rules of Civil Procedure.” (emphasis added) Id. at 305.

Once a lawsuit is filed, there is nothing the insured can do to compensate for the failure to respond to the request for an EUO during the adjustment of the claim. As noted earlier, the insured has a duty to respond to the written request to schedule an EUO. The failure or refusal to respond to this written request can result in a complete bar to recovery – and it makes no difference that the EUO was never mutually coordinated and/or that the insured’s failure was not willful.[1]

[1] See State Farm Ins. Co. v. Hernandez, 172 So. 3d 473 (Fla. 3d DCA 2015)(“The law in this district is clear and has been for nearly twenty years: . . . the insured must comply with all of the policy’s post-loss obligations . . .”) citing favorably to U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999); Stringer v. Fireman's Fund Ins. Co., 622 So. 2d 145 (Fla. 3d DCA), review denied, 630 So. 2d 1101 (Fla. 1993)(the failure to submit to an examination under oath is a material breach of the insurance policy which will relieve the insurer of the obligation to pay under contract); Hunt v. State Farm Florida Insurance Company, 145 So. 3d 210 (Fla. 4th DCA 2014) citing favorably to Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899, 111 S. Ct. 255, 112 L. Ed. 2d 213 (1990)(policy provision requiring the insured to take an examination under oath was a condition precedent to suit and that non-compliance constituted a material breach justifying the entry of summary judgment); Goldman v State Farm Fire Florida Ins. Co., 660 So. 2d 300, 305 (Fla. 4 DCA 1995)(“We conclude that the policy provisions requiring appellants to submit to examinations under oath are conditions precedent to suit rather than cooperation clauses. . . . We, therefore, conclude that the policy provision at issue is a condition precedent to suit and that appellants noncompliance precludes an action on the policy regardless of a showing of prejudice by the insurer”); Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (Fla. 1909)(insured’s refusal to comply with policy condition that insured submit to an examination under oath “will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such condition”).