39 Fla. L. Weekly S122a
examination — An insured’s breach of a compulsory medical examination provision
in an uninsured motorist policy of insurance does not result in forfeiture of
benefits unless the insurer pleads and proves it was prejudiced as part of its
affirmative defense — CME provision in UM context is a post-loss obligation of
insured, not a condition precedent to coverage — Undisputed facts in instant
case demonstrate that insurer was not prejudiced by insured’s refusal to submit
to CME prior to initiation of litigation
Respondent. Supreme Court of Florida. Case No. SC12-157. March 13, 2014.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions. Fifth District — Case No. 5D09-1488 (Brevard County).
Counsel: Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami; and The
Turner Law Firm, LLC, Sarasota, for Petitioner. Gary M. Farmer, Sr., of Farmer
Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale; O. John
Alpizar, Palm Bay; and Marjorie Gadarian Graham, Palm Beach Gardens, for
Respondent. Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West
Palm Beach, for Amicus Curiae Florida Justice Association.
the Fifth District Court of Appeal, sitting en banc, in State
Farm Automobile Insurance Co. v. Curran, 83 So. 3d 793 (Fla. 5th DCA
2011). In its decision the district court ruled upon the following question,
which the court certified to be of great public importance:
WHEN AN INSURED BREACHES A [COMPULSORY MEDICAL EXAMINATION]
PROVISION IN AN UNINSURED MOTORIST CONTRACT, (IN THE ABSENCE OF CONTRACTUAL
LANGUAGE SPECIFYING THE CONSEQUENCES OF THE BREACH) DOES THE INSURED FORFEIT
BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE, OR DOES THE PREJUDICE
ANALYSIS DESCRIBED IN BANKERS INSURANCE CO. V. MACIAS, 475 So. 2d 1216,
1218 (Fla. 1985), APPLY? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN
OF PLEADING AND PROVING THAT ISSUE?
Fla. Const. In line with the legal analysis we adopt, we clarify the issue
presented by rephrasing the certified question as follows:
WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION
IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE
CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS
THE BURDEN OF PLEADING AND PROVING THAT ISSUE?
the second portion of the certified question, we hold that the insurer as the
defensive party pleading an affirmative defense has the burden of pleading and
proving prejudice. For the reasons explained below, we approve the decision of
the Fifth District.
BACKGROUND AND FACTS
Curran. Id. at 794-800. We briefly summarize the facts here. This
case arose as a result of a June 2006 traffic accident involving Robin Curran,
insured by State Farm Automobile Insurance Company (State Farm), and the
underinsured motorist who rear-ended Curran’s car. Subsequently, Curran and the
underinsured motorist reached a settlement agreement, which was approved by
State Farm. On July 19, 2007, through counsel, Curran requested her $100,000
underinsured motorist policy limits and offered to settle and release State Farm
from an uninsured motorist (UM) lawsuit if it tendered the policy limits no
later than August 18, 2007. In the letter to State Farm, Curran indicated that
her damages were estimated to be $3.5 million because she suffered from reflex
sympathetic dystrophy syndrome (RSD) type 1.1 On August 17, 2007, State Farm contacted Curran’s
counsel to schedule a compulsory medical examination (CME) with Dr. Joseph
Uricchio2 pursuant to the terms of the
policy, which provide that a claimant has the duty to
be examined by physicians chosen and paid by us as often as we
reasonably may require. A copy of the report will be sent to the person upon
written request. The person or his or her legal representative if the person is
dead or unable to act shall authorize us to obtain all medical reports and
right of action against [State Farm] until all terms of this policy have been
contentious letters regarding attempts by State Farm to schedule the
CME.3 Ultimately, however, Curran refused
to attend a CME despite receipt of a reservation of rights letter from State
Farm stating that her failure to “assist and cooperate” with the insurer may
result in a denial of coverage. Instead, Curran filed suit against State Farm.
State Farm answered and asserted an affirmative defense contending that Curran
was not entitled to coverage under the policy because she breached the CME
provision, which State Farm characterized as a condition precedent to coverage
under the policy. Thereafter, State Farm moved for summary judgment on the
coverage issue claiming it was entitled to decline coverage as a matter of law.
Curran also filed a motion for summary judgment contending that the CME
provision was not a condition precedent to coverage and that, at worst, her
complaint was filed prematurely. Curran further claimed that she did not refuse
to submit to a CME, but only asserted reasonable requests to protect her own
personal interests, which requests had been ignored by State Farm. Following the
hearing on both motions, the trial court entered its order granting summary
judgment in favor of Curran.4
award of $4,650,589 in damages to Curran. Curran, 83 So. 3d at 800. The
trial court entered a judgment against State Farm for the $100,000 UM policy
limits and State Farm appealed the judgment to the Fifth District.5
undisputed facts, Curran did not act reasonably in insisting that State Farm
abandon its contractual rights as a condition to an examination and,
consequently, breached the contract when she failed to attend the CME. It
concluded, however, that in order “to avoid liability under the insurance policy
based on noncompliance with the CME clause, it was essential that State Farm
plead and prove a material breach, which means a breach causing prejudice.”
6 Id. at 803.
District relied on this Court’s precedent in Bankers Insurance Co. v.
Macias, 475 So. 2d 1216 (Fla. 1985), and Custer
Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla.
2010), for support.7 The district court
noted that in Macias, this Court concluded that neither the failure to
timely report a claim nor the breach of the duty to cooperate gives rise to the
automatic forfeiture of insurance benefits absent prejudice to the insurer.
Curran, 83 So. 3d at 802. Applying Macias to the contractual
provision here, the Fifth District concluded that the provision was analogous to
the claims notice provision discussed in Macias, but also overlapped with
the insured’s duty to cooperate in that the insurer was given the opportunity to
obtain evidence from the insured. Further, the court observed that in its
reservation of rights letter dated September 18, 2007, State Farm treated
Curran’s actions as a breach of the duty to cooperate. However, the Fifth
District concluded that a determination of whether the CME clause in the
contract was more analogous to a claims notice provision or a cooperation clause
was relevant only to the question of who has the burden on the issue of
prejudice. Curran, 83 So. 3d at 802. The court then noted that
Custer resolved this issue by finding that a “CME provision is a
‘condition subsequent,’ the nonoccurrence of which is an affirmative defense
that the insurer has the burden to plead and prove.” See Curran,
83 So. 3d at 802-03 (citing Custer, 62 So. 3d at 1097-99).
to plead and prove that Curran’s breach caused prejudice, the Fifth District
held that State Farm failed to meet its burden, stating:
Even had State Farm argued prejudice, the record refutes any such
allegation, at least to the extent that it would affect entitlement to the UM
contract benefits. Immediately upon filing suit (seven days after the scheduled
examination), Curran offered to submit to a medical examination pursuant to
Florida Rule of Civil Procedure 1.360 (also well before the expiration of the
time period under the Civil Remedies Notice). State Farm declined Curran’s
offer, electing instead to defer an examination until after the court first
decided “if your client’s failure to cooperate and failure to comply with all
policy terms, conditions, limits, provisions and applicable Florida law affects
coverage under the provisions which you now seek benefits.” After the lower
court ruled, the record reflects that Curran submitted to a CME with Dr.
Uricchio. State Farm elected not to call Dr. Uricchio as a trial witness. There
is no indication that the validity of the CME was affected by the short lapse of
time attributable to Curran or that the rule 1.360 examination was materially
different from the CME State Farm would have performed under the contract. The
effect of Curran’s breach was clearly inconsequential as it pertained to the
merits of her claim for UM benefits.
question to this Court as one involving great public importance.8 Curran, 83 So. 3d at 807.
condition precedent to both coverage and to suit, which constitutes a material
breach of the policy resulting in forfeiture of coverage irrespective of any
showing of prejudice to State Farm. State Farm also contends that if prejudice
is an issue, this Court should remand to the trial court so that State Farm has
an opportunity to prove Curran’s breach resulted in actual prejudice. Because
Curran does not contest the Fifth District’s finding that she breached the
contract, the pertinent issue on appeal is whether the breach of such a
provision precludes recovery under the policy as a matter of law without regard
to whether the breach resulted in actual prejudice to the insurer. For the
following reasons, we agree with the Fifth District and hold that the forfeiture
of benefits under the policy will not automatically result upon an insured’s
breach of a CME provision unless the insurer pleads and proves actual prejudice
as an element of its affirmative defense. In addition, because the undisputed
facts demonstrate that State Farm was not prejudiced, we conclude that it is
unnecessary to remand the case for further proceedings relating to a
determination on the question of prejudice.
motor vehicle policies in Florida are mandated by statute to offer uninsured
motorist coverage unless the insured has expressly rejected the coverage. The
term “uninsured motor vehicle” includes an underinsured motor vehicle, which
occurs where the liability insurer has provided lower bodily injury liability
limits than the damages sustained by the person legally entitled to recover
damages. § 627.727(3)(b), Fla. Stat. (2007). Uninsured motorist coverage is
intended to protect persons who are legally entitled to recover damages for
injuries caused by owners or operators of uninsured or underinsured motor
vehicles. Flores v. Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002).
In addition, we have stressed that the statute is not designed “for the benefit
of insurance companies or motorists who cause damage to others.” Young v.
Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000) (citing Brown v.
Progressive Mut. Ins. Co., 249 So. 2d 429, 430 (Fla. 1971)). Indeed, section
627.727 was intended to place the injured party in the same position as he or
she would have been had the tortfeasor been insured. See Moore v.
Allstate Ins. Co., 570 So. 2d 291, 293 (Fla. 1990). We are mindful of these
principles when deciding whether an insured’s failure to attend a CME prior to
filing suit results in automatic forfeiture without regard to prejudice when
such a breach is raised by an insurer as an affirmative defense.
we briefly review the role of compulsory medical examinations in the UM coverage
context. As was the case here, after an insured has been injured in an accident
with an uninsured or underinsured motorist, an insured will generally settle a
claim with the uninsured or underinsured motorist with approval from the
insured’s UM coverage carrier. See § 627.727(6)(a), Fla. Stat. (2007)
(providing that if an injured person agrees to settle a claim with a liability
insurer and its insured, and the settlement would not fully satisfy the claim
for personal injuries so as to create an underinsured motorist claim, then
written notice of the proposed settlement must be submitted to all underinsured
motorist insurers that provide coverage). The insured then submits a claim for
UM benefits to the insurer alleging legal entitlement to additional damages
because the total loss was not covered by the underinsured motorist’s policy.
Here, Curran sent a demand letter to State Farm requesting payment of the policy
has a duty under the insurance policy to provide medical bills, medical records,
and any other information the insurer believes will help with processing the
claim. If the UM insurer, after review of information compiled from medical
bills, medical records, and other information that is provided to substantiate
an insured’s claim, questions the severity of the injury, it may request a
medical examination to aid its review of the insured’s claim.9 Cf. U.S. Sec. Ins. Co. v. Cimino, 754
So. 2d 697, 701 (Fla. 2000) (noting that, in a personal injury protection
benefits context, a medical examination is a potential step in the direction of
litigation because the insured is claiming an entitlement to benefits and the
insurer is questioning the necessity for same). Thus, a CME is typically
requested to provide the insurer additional information used to determine
whether the insured is legally entitled to recover damages after an injury is
sustained and a UM claim has been submitted.
approve. Specifically, State Farm argues that the provision at issue is a
condition precedent to coverage and to suit, the breach of which constitutes a
material breach of the policy resulting in forfeiture of coverage irrespective
of any showing of prejudice to the insurer. Curran, on the other hand, argues
that the provision is a condition subsequent requiring proof of prejudice. The
terms “condition precedent” and “condition subsequent” are defined as follows in
A condition precedent is one that is to be performed before the
contract becomes effective. Conditions subsequent are those that pertain not to
the attachment of the risk and the inception of the policy but to the contract
of insurance after the risk has attached and during the existence thereof. A
condition subsequent presupposes an absolute obligation under the policy and
provides that the policy will become void, or its operation defeated or
suspended, or the insurer relieved wholly or partially from liability, upon the
happening of some event or the doing or omission of some act.
was required to
be examined by physicians chosen and paid by [State Farm] as often
as we reasonably may require. A copy of the report will be sent to the person
upon written request. The person or his or her legal representative if the
person is dead or unable to act shall authorize us to obtain all medical reports
“[t]here is no right of action against [State Farm] until all terms of this
policy have been met.” According to State Farm, the CME provision is a condition
precedent to suit and coverage because of the “Suits Against Us” provision. We
disagree. As discussed below, we conclude that a CME provision in the UM context
is a post-loss obligation of the insured and is not a condition precedent to
examination was not a condition precedent to the existence of an automobile
insurance policy that provided personal injury protection (PIP) benefits.
See 62 So. 3d at 1100. The Court reasoned that medical examinations in a
PIP context are not scheduled prior to the existence of a policy or prior to an
injury, but instead are scheduled after a policy has been issued, injuries have
been sustained, and the insured has notified the insurer of a loss. Id.
at 1099. We further noted that “an unreasonable failure to attend a
requested medical examination may be a condition subsequent that divests the
insured’s right to receive further PIP benefits.” Id. at 1098-99.
Similarly, as discussed above, compulsory medical examinations in the UM
coverage context may be requested by insurers after a policy has been issued, an
insured has sustained an accident or loss, and an insured has submitted a claim
for UM benefits.
policy, regardless of whether the insured’s duties are capable of being
performed prior to filing an action against the insurer. Consequently, adherence
to State Farm’s argument would turn every duty, including the duty to assist and
cooperate,11 considered a condition
subsequent in Macias, into a condition precedent to coverage and
suit.12 Macias, 475 So. 2d at 1218
(failure to cooperate is a condition subsequent and it is proper to place the
burden of showing prejudice on the insurer). Further, the term “until” suggests
that any cause of action filed before compliance with all of the terms of the
policy is simply premature, which generally results in an abatement of the
action. See Bierman v. Miller, 639 So. 2d 627, 628 (Fla. 3d DCA
1994) (“The proper remedy for premature litigation is an abatement or stay of
the claim for the period necessary for its maturation under the law.” (quoting
Angrand v. Fox, 552 So. 2d 1113, 1115 (Fla. 3d DCA 1989))).
precedent to coverage and we find that an insured’s breach of this provision
should not result in post-occurrence forfeiture of insurance coverage without
regard to prejudice. Cf. Macias, 475 So. 2d at 1217-18 (noting
that a showing of prejudice is relevant when an insured breaches a cooperation
clause, which is a condition subsequent, or a notice provision); Tiedtke v.
Fidelity & Cas. Co. of New York, 222 So. 2d 206, 209 (Fla. 1969)
(adopting the view that a showing of prejudice is relevant when considering
whether an insured’s breach of a notice provision relieves the insurer of
breaches a CME provision, we also hold that the burden of pleading and proving
that issue is on State Farm. State Farm raised this issue as an affirmative
defense. “An affirmative defense is a defense which admits the cause of action,
but avoids liability, in whole or in part, by alleging an excuse, justification,
or other matter negating or limiting liability.” St. Paul Mercury Ins. Co. v.
Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). “[T]he plaintiff is not
bound to prove that the affirmative defense does not exist.” Custer, 62
So. 3d at 1096. Further, in Macias, we held that “[a] failure to
cooperate is a condition subsequent and it is proper to place the burden of
showing prejudice on the insurer.” 475 So. 2d at 1218; accord Ramos v.
Nw. Mut. Ins. Co., 336 So. 2d 71 (Fla. 1976) (an insurer may not avoid
liability under its policy by merely showing the violation of a clause requiring
assistance and cooperation of the insured without a further showing of how this
violation prejudiced the insurer). Accordingly, because the insurer is the
defensive pleader, it has the burden of pleading and persuasion of each element
of the defense.
entitled to recover damages for injuries caused by owners or operators of
uninsured or underinsured motor vehicles, our conclusion that the insurer must
plead and prove prejudice as an element of its affirmative defense fully
comports with this purpose. See Flores, 819 So. 2d at 744
(discussing the intended purpose of the UM coverage statute). It also places the
injured party in the same position as the injured party would have been had the
tortfeasor been insured. See Moore, 570 So. 2d at 293. Further,
the insurer still has two remedies for such a breach: (1) it may seek to abate
the proceedings until the insured has complied with the CME provisions; or (2)
if the insured’s breach did indeed prejudice the insurer, it may assert a breach
of the CME requirement as a complete defense to coverage under the policy upon
proof of the prejudice. We now turn to State Farm’s argument that this Court
should remand the case to the trial court for a determination regarding
State Farm was not prejudiced by Curran’s refusal to submit to a CME prior to
the initiation of litigation. Although State Farm did not advance a specific
argument that it was prejudiced below, the record demonstrates that Curran’s
refusal to submit to a CME did not prejudice State Farm in any fashion. Shortly
after filing suit, Curran offered to submit to a medical examination pursuant to
Florida Rule of Civil Procedure 1.360. State Farm, however, elected to defer the
examination until after the trial court determined whether Curran had forfeited
coverage under the policy. After the trial court found that Curran had not
unreasonably refused to attend the examination, Curran attended a CME with Dr.
Uricchio, the same expert that State Farm requested Curran see prior to
litigation. Dr. Uricchio was not called to testify as a trial witness and there
is nothing in the record that indicates the delayed CME affected the integrity
of the evaluation. Thus, the record is devoid of evidence that would suggest
that Curran’s refusal to submit to a CME prior to suit prejudiced State Farm.
Accordingly, it is unnecessary to remand the case for determination of
prejudice. See Tiedtke, 222 So. 2d at 209 (unnecessary to remand
case for determination of prejudice where record amply establishes no prejudice
holding that an insured’s breach of a CME provision in an uninsured motorist
policy of insurance does not result in forfeiture of benefits unless the insurer
pleads and proves it was prejudiced as part of its affirmative defense.
Accordingly, we approve the decision of the Fifth District in State Farm
Automobile Insurance Co. v. Curran, 83 So. 3d 793 (Fla. 5th DCA 2011).
result, with an opinion. QUINCE, J., concurs in result. POLSTON, C.J., dissents
with an opinion in which CANADY, J. concurs.)
this case, I write separately because I believe this issue is also governed by
an additional body of law other than that expressed by the majority. Every motor
vehicle liability insurer in this State is statutorily mandated to offer
uninsured motorist coverage unless the insured has expressly rejected the
coverage. See § 627.727, Fla. Stat. (2007). When an insured seeks to
recover uninsured motorist benefits from its insurance carrier, the insured’s
uninsured motorist carrier stands in the shoes of the uninsured motorist,
thereby placing the insurer in a position adverse to the insured.
Diaz-Hernandez v. State Farm Fire & Cas. Co., 19 So. 3d 996, 999
(Fla. 3d DCA 2009). The Legislature intended for this statutorily mandated
coverage to broadly protect innocent persons who are injured through the
negligence of an uninsured motorist, and not to benefit insurance companies or
motorists who cause damage to others. Young v. Progressive Se. Ins. Co.,
753 So. 2d 80, 83 (Fla. 2000); see also Salas v. Liberty Mut. Fire
Ins. Co., 272 So. 2d 1, 5 (Fla. 1972) (noting that “the intention of the
Legislature, as mirrored by the decisions of this Court, is plain to provide for
the broad protection of the citizens of this State against uninsured
motorists”). Furthermore, we have repeatedly recognized that “as a creature of
statute rather than a matter for contemplation of the parties in creating
insurance policies, the uninsured motorist protection is not susceptible to the
attempts of the insurer to limit or negate that protection.” Salas, 272
So. 2d at 5; see also Mullis v. State Farm Mut. Auto. Ins. Co.,
252 So. 2d 229, 237-38 (Fla. 1971) (noting that uninsured motorist coverage is
“not to be ‘whittled away’ by exclusions and exceptions”). For these reasons,
provisions in uninsured motorist policies that provide less coverage than
required by the statute are void as contrary to public policy. Young, 753
So. 2d at 83.
examination provision that allowed State Farm to require Curran to “be examined
by physicians chosen and paid by [State Farm] as often as [State Farm]
reasonably may require.” No such right exists in any third-party action. As the
plain language of the provision indicates, the CME provision does not account
for or protect the interests, requests, or concerns of the insured. Rather, this
provision attempts to vest an insurer with exclusive power to require medical
examinations as long as the insurer desires medical examinations, with nothing
in the provision that limits how many medical examinations the insurer can
require or under what conditions the insurer may require an examination.
See State Farm Mut. Auto. Ins. Co. v. Curran, 83 So. 3d 793, 801
(Fla. 5th DCA 2011) (noting that the CME provision in Curran’s policy provided
that it was “not necessary that State Farm agree to any proposed condition
proffered by Curran” even if the condition was reasonable from the standpoint of
discretion to require CMEs and empower State Farm with the contractual
authority to constrict the availability of uninsured motorist benefits by
precluding any action for such benefits when the insured fails to comply with
State Farm’s demands for CMEs. See Majority op. at 4 (noting that State
Farm contended “that Curran was not entitled to coverage under the policy
because she breached the CME provision”). However, nothing in the uninsured
motorist statute authorizes an insurer to place this type of direct and
substantial burden upon the insured or to deny coverage on the basis that the
insured failed to submit to a compulsory medical examination. Thus, this
provision is not authorized by statute, and is directly contrary to the
statutory purpose of uninsured motorist coverage. See
Diaz-Hernandez, 19 So. 3d at 999-1000 (invalidating a contractual
provision as contrary to the public policy of the UM statute in part because
there was “nothing in the UM statute” that authorized the insurer to require the
insured to join the uninsured motorist in the insured’s contractual action
against the insurer for UM coverage). Accordingly, I would invalidate the
compulsory examination provision as contained in Curran’s policy with State Farm
along with the asserted result as an illegal contractual provision more
restrictive than, and not supported by, the statutorily mandated uninsured
motorist coverage. See Young, 753 So. 2d at 83 (holding that
“provisions in uninsured motorist policies that provide less coverage than
required by the statute are void as contrary to public policy”); see also
Salas, 272 So. 2d at 5; Mullis, 252 So. 2d at 237-38.
policy at issue unambiguously includes a condition precedent that was not
satisfied. The policy plainly conditions Curran’s right to sue to recover
uninsured motorist (UM) benefits from State Farm on her pre-suit submission to a
compulsory medical examination (CME). Specifically, it requires her to “be
examined by physicians chosen and paid by [State Farm] as often as [State Farm]
reasonably may require” and provides that “[t]here is no right of action against
[State Farm] until all terms of this policy have been met.” Curran did not
attend either CME that State Farm acted in good faith to schedule despite
Curran’s attempts to “unilaterally change the contract terms under the guise of
proffered conditions” for the CME. State Farm Mut. Auto. Ins. Co. v.
Curran, 83 So. 3d 793, 801-02 (Fla. 5th DCA 2011).13
benefits, the contract requires dismissal of Curran’s action because she had no
right to bring it. Of course, nothing in the contract prohibits Curran from
submitting to the requested CME and refiling her suit against State Farm, if she
may do so within the applicable statute of limitations period.
contract precludes her from suing State Farm until such time as she satisfies
the condition precedent, the majority allows her judgment to stand over State
Farm’s argument that it has no obligation to pay benefits that Curran had no
right to sue for. To reach this result, the majority imposes an unprecedented
requirement that the insurance company plead and prove that it is prejudiced by
the insured’s failure to submit to a CME. Moreover, the majority erroneously
extends its holding to all UM policies regardless of what those policies
might actually say. See majority at 2 (rephrasing the certified question
to apply to all UM policies without deference to policy language specifying the
consequences for failing to submit to a CME); see also State Farm Mut.
Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569-70 (Fla. 2011) (“In
interpreting an insurance contract, we are bound by the plain meaning of the
provision is a condition subsequent (akin to a cooperation clause) and not a
condition precedent. Every other conclusion — who has the burden to plead and
prove compliance with the CME provision; whether prejudice to the insurance
company must result if the insured does not submit to a CME before filing suit;
and, if prejudice is required, who has the burden to plead and prove it — flows
from this determination. Cf. Goldman v. State Farm Fire Gen. Ins.
Co., 660 So. 2d 300, 303-04 (Fla. 4th DCA 1995) (“A substantial line of
cases supports the rule that an insurer need not show prejudice when the insured
breaches a condition precedent to suit. . . . On the other hand, if the
provision is a [condition subsequent such as a] cooperation clause, the burden
would be on the insurer to demonstrate substantial prejudice before a breach
would preclude recovery under the policy.”) (footnote omitted) (citations
omitted). Respectfully, the majority is incorrect on this critical issue.
as a condition that must be performed before a contract becomes effective.
See majority at 12. By defining a condition precedent this way, the
majority implies that every other type of condition is a condition subsequent
that the insurance company must plead and prove to avoid liability. See
id. However, this is incorrect because Florida also recognizes “a
condition precedent to performance under an existing contract.” Mitchell v.
DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006); see also
Black’s Law Dictionary 334 (9th ed. 2009) (defining a “condition
precedent” as “[a]n act or event, other than a lapse of time, that must exist or
occur before a duty to perform something promised arises”). Further, this Court
has consistently recognized that the party seeking to avoid a condition
precedent to the other party’s duty to perform has the burden to plead and prove
its satisfaction. See, e.g., Bankers Ins. Co. v. Macias, 475 So.
2d 1216, 1218 (Fla. 1985) (“The burden should be on the party seeking an
avoidance of a condition precedent.”); see also Saris v. State Farm
Mut. Auto. Ins. Co., 49 So. 3d 815, 818 (Fla. 4th DCA 2010) (recognizing
that the insured’s duty to “submit to a physical examination” is a duty that
“relate[s] to the insured’s burden to establish that he is entitled to
precedent to the right to sue to recover contract benefits, not just to the
contract’s existence. See, e.g., Lee R. Russ & Thomas F. Segalla,
Couch on Insurance § 196:23 (3d ed. 2012) (addressing the consequences of
failing to comply with “condition[s] precedent to recovery or to suit”). For
instance, one insurance treatise has explained that “[t]he CME requirement” at
issue here “is analogous to the requirement for an examination under oath and is
deemed a condition precedent to suit and to the recovery of benefits under
the policy where the policy so provides” through a no-action provision. 2
Automobile Liability Insurance § 26:17 (4th ed. 2013) (emphasis added).
See also 8-31 Corbin on Contracts § 31.1 (2012) (explaining that a
no-action provision is “[a] very common method” of creating a condition
precedent to suit for recovery of contract benefits); Robert H. Jerry, II &
Douglas R. Richmond, Understanding Insurance Law 589 (5th ed. 2012) (“The
insured’s submission to an examination under oath when requested by an insurer
is a valid condition precedent to coverage.”).
CME was a condition precedent to her right to sue for UM benefits and, as a
necessary corollary, a prerequisite to State Farm’s duty to provide coverage
under the policy by paying those benefits. See S. Home Ins. Co. v.
Putnal, 49 So. 922, 932 (Fla. 1909) (recognizing that an insured’s refusal
to submit to an examination under oath required by a fire insurance policy “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”); Shaw
v. State Farm Fire & Cas. Co., 37 So. 3d 329, 331 (Fla. 5th DCA 2010)
(“It is undisputed that a provision in an insurance policy that requires the
insured to submit to an [examination under oath] qualifies as a condition
precedent to recovery of policy benefits.”); Starling v. Allstate Floridian
Ins. Co., 956 So. 2d 511, 513-14 (Fla. 5th DCA 2007) (barring recovery under
a property insurance policy because the insured failed to submit a proof-of-loss
form, which was a “condition precedent to maintaining suit”); see also 20
John A. Appleman & Jean Appleman, Insurance Law and Practice § 11416
(2013) (“A plaintiff must, in order to recover under a policy, plead and prove
the performance of all conditions precedent to recovery. . . . and, if there is
a condition precedent, the party in whose favor the condition exists is not
liable to an action until that condition has been met.”) (footnote omitted).
this suit, Curran could have submitted to the requested CME. However, by filing
suit without satisfying this condition (or pleading and proving facts excusing
her failure to do so), Curran discharged State Farm’s obligation to perform
under the contract (at least with respect to this action). See
Restatement (Second) of Contracts § 225 (1981) (“Performance of a duty
subject to a condition cannot become due unless the condition occurs . . . .
[T]he non-occurrence of a condition discharges the duty when the condition can
no longer occur.”); see also Kinman v. State Farm Mut. Auto. Ins.
Co., 411 F. App’x 261, 261 (11th Cir. 2011) (concluding the trial court did
not err by finding the insured was “not entitled to coverage under the uninsured
motorist provision” because the “policy required him to submit to the [medical
examination] and he unreasonably refused to do so”); Orozco v. State Farm
Mut. Auto. Ins. Co., 360 F. Supp. 223, 224 & n.3 (S.D. Fla. 1972)
(concluding a UM policy’s physical examination requirement was a “condition[ ]
precedent to the imposition of liability upon the [insurer]” where the policy
contained a no-action clause prohibiting suit “unless, as a condition precedent
thereto,” the insured fully complied with the policy’s terms).
CME is not the same as the duty to cooperate that we have previously held is a
condition subsequent. See majority at 15-16. First, and most importantly,
Curran’s policy says these duties are different because it addresses her duty to
“cooperate” and “assist” in “making settlements[,] securing and giving
evidence[, and] attending and getting witnesses to attend hearings and trials”
separately from her duty to submit to a CME. Further, a duty to cooperate with
the insurance company while litigation is pending is markedly different from a
CME requirement designed to give the insurance company the opportunity to
investigate a claim and, if it is meritorious, pay benefits without resort to
litigation. Finally, the majority’s concern that recognizing the CME requirement
as a condition precedent would, because of the no-action provision, turn every
other contractual duty into a condition precedent is unfounded. See
majority at 14 & n.12. If a duty is incapable of being performed before suit
is filed, its performance cannot be a condition precedent to suit. However,
here, submission to the CME clearly could and should have occurred presuit,
independent of Curran’s duty to cooperate during litigation. See
Soronson v. State Farm Fla. Ins. Co., 96 So. 3d 949, 952 (Fla. 4th DCA
2012) (using a plain language analysis to conclude that an insurance policy’s
notice and proof-of-loss requirements were conditions precedent to suit, not
as a result of its breach is immaterial, and the correct result is that no
action lies against State Farm as the contract provides. See
Goldman, 660 So. 2d at 303 (“[A]n insurer need not show prejudice when
the insured breaches a condition precedent to suit.”); see also Lee R.
Russ & Thomas F. Segalla, Couch on Insurance § 196:2 (3d ed. 2012)
(“[B]reach of a true condition precedent bars recovery without regard to
prejudice.”) (citing Goldman, 660 So. 2d at 300); 31A Fla. Jur. 2d
Insurance § 3233 (2013) (“Policy provisions requiring insureds to submit to
an examination under oath (EUO) are conditions precedent to a suit, rather than
cooperation clauses, and thus, a failure to comply precludes an action on the
policy by the insured regardless of a showing of prejudice by the insurer. The
refusal of the insured to submit to an EUO when required to do so is also a
material breach of the policy, which will justify the insurer’s denial of
recovery.”) (footnotes omitted).
CMEs required by their insurance policies from recovering UM benefits. For
example, the Third District held that an insured who filed suit without
submitting to a medical examination that was “a condition precedent to coverage”
could not maintain her action for UM benefits regardless of whether her failure
to submit to the examination prejudiced the insurance company. De Ferrari v.
Gov’t Emps. Ins. Co., 613 So. 2d 101, 103 (Fla. 3d DCA 1993). Similarly, the
Fourth District held that an examination under oath requirement was “a condition
precedent to suit” under a homeowner’s policy and that the insured’s failure to
submit to the examination before filing suit “preclude[d] an action on the
policy regardless of a showing of prejudice by the insurer.” Goldman, 660
So. 2d at 306. Also, the District Court for the Northern District of Florida
concluded that an insured materially breached a fire insurance policy by filing
suit without submitting to a required examination under oath. Laine v.
Allstate Ins. Co., 355 F. Supp. 2d 1303, 1304 (N.D. Fla. 2005). In granting
summary judgment for the insurance company, the federal court rejected the
argument that an insured’s failure to appear for an examination excuses the
insurance company’s obligation to pay benefits only if it prejudiced the
insurance company, concluding that argument is “subject to considerable doubt”
under Florida law, which is concerned with the “materiality of the breach, not
prejudice.” Id. at 1306 (citing Goldman, 660 So. 2d 300;
Stringer v. Fireman’s Fund Ins. Co., 622 So. 2d 145 (Fla. 3d DCA 1993);
De Ferrari, 613 So. 2d 101).14
benefits based on the plain language of the policy. Specifically, the policy
provides that Curran has “no right of action” against State Farm “until” the CME
requirement is satisfied. Therefore, because Curran sued without first
submitting to the requested CME, I would require dismissal. Cf. Clark
v. Sarasota Cnty. Pub. Hosp. Bd., 65 F. Supp. 2d 1308, 1310, 1312 (M.D. Fla.
1998) (recognizing that Florida’s statutory medical malpractice presuit
requirements are conditions precedent to suit and that, under Florida law,
claims filed absent compliance with these requirements must be dismissed with or
without prejudice, depending on whether the defects can be cured before the
statute of limitations runs).
this Court’s decisions in Macias, 475 So. 2d 1216, and Custer Medical
Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010), to
hold that compliance with any CME requirement in any UM policy is
a condition subsequent and, therefore, any insured who files suit without
first submitting to a CME is precluded from recovering benefits only where the
insurance company pleads and proves prejudice. See majority at 13-15, 18.
Respectfully, neither decision compels nor supports the majority’s holding.
the insured to give notice of an accident was a condition precedent to a claim
instead of a condition subsequent. 475 So. 2d at 1218. We explained that, under
our precedent regarding notice provisions, “[i]f the insured breaches the notice
provision, prejudice to the insurer will be presumed, but may be rebutted by a
showing that the insurer has not been prejudiced by the lack of notice.”
Id. (citing Nat’l Gypsum Co. v. Travelers Indem. Co., 417 So. 2d
254 (Fla. 1982); Tiedtke v. Fid. & Cas. Co. of N.Y., 222 So. 2d 206
(Fla. 1969)). Therefore, we concluded that “[t]he burden should be on the
insured” as “the party seeking an avoidance of a condition precedent” to
establish “lack of prejudice where the insurer has been deprived of the
opportunity to investigate the facts and to examine the insured.” Id.
policy just as well as to claims under other policies,” Macias involved
the breach of a notice provision. Id. Accordingly, our district courts
have expressly declined to extend Macias to breaches of presuit
examination requirements serving different purposes than notice provisions.
See De Ferrari, 613 So. 2d at 103 (“[P]rejudice is not at issue
when an insurer’s reasonable request for [a medical examination] is refused by
an insured. The Macias case in no way created a new duty to establish
prejudice, where none previously existed.”); see also Goldman, 660
So. 2d at 304, 306 (holding that an examination under oath provision was “a
condition precedent to suit and that [the insured’s] noncompliance precludes an
action on the policy regardless of a showing of prejudice by the insurer” after
noting that Macias did not decide this issue).
provision, thereby making prejudice an issue, it still would not support the
majority’s decision to place the burden of pleading and proving prejudice on the
insurance company. As the Fourth District recognized in Goldman, “if
prejudice were to be considered, the burden would fall on the insured to prove
no prejudice to the insurer.” 660 So. 2d at 305 n.8 (citing Macias, 475
So. 2d 1216); see also Laine, 355 F. Supp. 2d at 1306 (recognizing
that “even under the most favorable view of [Florida] law,” Macias would
place the burden on the insured “to establish lack of prejudice”). Accordingly,
Macias does not justify the majority’s decision.
requirement a condition subsequent and placing the burden on the insurance
company to plead and prove prejudice. In Custer, 62 So. 3d at 1089, an
insurance company refused to pay PIP benefits when its insured failed to appear
for a medical examination the company scheduled after the insured completed all
treatment for which PIP benefits were requested. The governing statute provided
that the insurance company is “no longer liable for subsequent personal
injury protection benefits” if “a person unreasonably refuses to submit to an
examination.” Id. at 1090 (quoting § 672.736(7)(b), Fla. Stat. (2001)).
We explained that, under the PIP statute, “[a]ttendance at a medical examination
may be a condition precedent to the payment of subsequent PIP benefits
or, perhaps more accurately, an ‘unreasonable‘ failure to attend a
requested medical examination may be a condition subsequent that divests the
insured’s right to receive further subsequent PIP benefits.” Id. at
1098-99. Therefore, we noted in dicta that to avoid liability for
subsequent PIP benefits (which were not at issue in Custer because
all treatment occurred before the examination was requested), the insurance
company must prove that the insured unreasonably refused to attend the
examination. Id. at 1100.
policy requires proof that Curran unreasonably refused to submit to a CME.
Likewise, Custer‘s dicta concerning the burden of proof in the PIP
context does not apply where the parties are litigating over uninsured motorist
benefits. Cf. Custer, 62 So. 3d at 1099 (finding the Third
District’s decision in De Ferrari “inapposite” because it pertained to
“uninsured motorist benefits, and did not address PIP coverage”).
this Court to condition enforcement of the parties’ contract on the insurance
company’s ability to prove prejudice.15
Moreover, by moving beyond the facts of this case to adopt a general rule
applicable to all UM policies that provides no deference for what those policies
might actually say, the majority contravenes law requiring courts to enforce the
plain language of unambiguous contracts. See Orozco, 360 F. Supp.
at 225 (“[T]he insurance policy is the contract between the parties and . . .
the provisions of that contract which are clear and unambiguous and which are
neither illegal by statute nor by reason of their being against public policy,
should be enforced by the courts. The courts may not rewrite for the parties
insurance contracts which are clear and unambiguous.”). Therefore, I
I would rephrase the certified question as follows: Where an insurance policy
requires the insured to submit to a CME prior to filing suit against the
insurance company, does an insured who inexcusably failed to submit to a CME
have a right of action for UM benefits against the insurance company? I would
answer the rephrased question in the negative and quash the Fifth District’s
decision in favor of the insured. (CANADY, J., concurs.)
(RSD), also known as complex regional pain syndrome, “is an uncommon form of
chronic pain that usually affects an arm or leg.” Mayo Clinic, Complex
regional pain syndrome, Definition (Mar. 31, 2011),
http://www.mayoclinic.com/health/complex-regional-pain-syndrome/ DS00265 (last
visited Nov. 5, 2012). RSD “typically develops after an injury, surgery, stroke
or heart attack, but the pain is out of proportion to the severity of the
initial injury, if any.” Id. Type 1 RSD “occurs after an illness or
injury that [did not] directly damage the nerves in [an] affected limb.” Mayo
Clinic, Complex regional pain syndrome, Causes (Mar. 31, 2011),
(last visited Nov. 5, 2012).
Dr. Uricchio independently. Curran stated in her deposition that she attempted
to schedule an appointment with Dr. Uricchio, but she was informed that he was
no longer scheduling appointments with new patients. In addition, the trial
court took judicial notice that Dr. Uricchio had over thirty years of experience
as a testifying expert on behalf of insurers. State Farm, however, claimed that
Dr. Uricchio was an expert on RSD and often lectured about RSD on behalf of
these letter exchanges is set forth in Curran, 83 So. 3d at 795-99. Most
of the letters involved Curran’s attempts to condition her attendance at the CME
on provisos that would prevent State Farm from fully asserting its contractual
rights under the policy. For instance, Curran would only submit to a CME if it
were the only CME State Farm would request both prior to litigation and during
potential litigation. Further, Curran sought to limit State Farm’s choice of
physicians to conduct the examination.
request for a CME was “not unreasonable,” but also found that Curran’s requested
conditions were “not unreasonable,” except for the condition that State Farm
waive further examinations. Thus, the trial court concluded that Curran did not
refuse to appear for the examination as asserted by State Farm.
panel decision in favor of State Farm, finding that Curran refused to attend a
scheduled CME prior to filing suit and that Curran’s breach prohibited recovery
under the policy. The Fifth District, however, granted Curran’s motion for
rehearing en banc and withdrew the panel opinion. Curran, 83 So. 3d at
court’s decision on a different basis. Specifically, the trial court granted
summary judgment in favor of Curran finding that she had not refused to appear
for the CME as argued by State Farm. The Fifth District, however, held that she
refused to appear, but that State Farm did not prove it was prejudiced by
Curran’s failure to attend the CME. Thus, Curran’s breach of the CME provision
did not result in forfeiture of UM benefits.
Macias, the Court held that a presumption of prejudice arises where an
insured fails to give timely notice of an accident to the insurer. 475 So. 2d at
1217. In reaching this result, the Court noted that different presumptions arise
depending on which duty has been breached. Specifically, if the insured breaches
a notice provision, prejudice to the insurer is presumed, but may be rebutted,
whereas if a cooperation clause has been breached, the insurer must show a
material failure to cooperate which substantially prejudiced the insurer.
Id. at 1217-18. Further, the Court held that a “failure to cooperate is a
condition subsequent and it is proper to place the burden of showing prejudice
on the insurer.” Id. at 1218.
primarily discussing the limitations of second-tier certiorari review, we held
that an insured’s attendance at a medical examination was not a condition
precedent to the existence of an automobile insurance policy that provided
personal injury protection benefits. 62 So. 3d at 1100. The Court reasoned that
medical examinations in the personal injury protection context, as opposed to
the life insurance context, were not scheduled prior to the existence of an
automobile insurance policy or prior to an injury, but instead occur when the
insured has sustained an accident after a policy has been issued. Id. at
1099. Thus, the Court also held that the insurer has the burden of proof on this
issue. Id. at 1100.
conflict with De Ferrari v. Government Employees Ins. Co., 613 So. 2d 101
(Fla. 3d DCA 1993), and Goldman v. State Farm Fire General Insurance Co.,
660 So. 2d 300 (Fla. 4th DCA 1995). Because we granted review based on the
certified question, we do not address the certified conflict cases.
with RSD and she independently attempted to make an appointment with Dr.
Uricchio prior to State Farm’s request for a medical examination and subsequent
suit, State Farm argued in its briefs that a medical examination is essential,
especially in cases where an insured is claiming a significant loss due to
complications from injuries, such as RSD, which are subjective in nature.
examples of conditions precedent as the obligation of the applicant to satisfy
the requirements of insurability, be in good health for life and health
insurance policies, pay the required premium, and answer all questions in the
application to the best of the applicant’s knowledge and belief. D & S
Realty, Inc. v. Markel Ins. Co., 789 N.W.2d 1, 9-10 (2010).
letter to Curran stating that her failure to “assist and cooperate” with the
insurer may result in a denial of coverage.
and cooperate are not necessarily capable of being performed prior to filing an
action against the insurer. For instance, an insured’s duty to assist an insurer
in making settlements and attending and getting witnesses to attend hearings and
trials are unlikely to be capable of performance prior to trial.
concurring opinion below, the “rather transparent motive” for Curran’s behavior
was to put State Farm “in a position where it could not offer up the policy
limits prior to suit, unless it did so without having a medical consultation
that it had confidence in. This was about as thinly disguised a bad faith trap
as is imaginable.” Curran, 83 So. 3d at 808 (Monaco, J., concurring).
between the decision on review and Goldman and De Ferrari.
See Curran, 83 So. 3d at 807. However, the majority elected not to
address the issue. See majority at 8 n.8. In doing so, it ignored
decisions supporting a contrary result, one of which — De Ferrari —
expressly and directly conflicts with the decision on review. See 2
Automobile Liability Insurance § 26:17 (4th ed. 2013) (recognizing that
the Fifth District’s decision in Curran “depart[s] from the rule” that a
“CME requirement . . . is deemed a condition precedent to suit and to the
recovery of benefits under the policy where the policy so provides [and it] does
not require the insurer to show that it was prejudiced by the breach”)
prejudice rule, I would disagree with its conclusion that the facts preclude a
finding of prejudice to State Farm. See majority at 17. The fact that
Curran filed suit without submitting to the CME deprived State Farm of its right
to investigate and evaluate Curran’s injuries prior to litigation and
unjustifiably exposed State Farm to a bad-faith claim. This is sufficient to
prove prejudice. See Laine, 355 F. Supp. 2d at 1306 n.2
(“Depriving the insurer of th[e] opportunity [to conduct an examination under
oath] is sufficient prejudice, even if, indeed, prejudice is required.”).
this Court pursuant to section 627.428, Florida Statutes (2011), is hereby
provisionally granted and remanded to the trial court to determine the amount.
Respondent’s additional request for a conditional award of fees and costs
pursuant to section 768.79, Florida Statutes (2011), is hereby denied.
Respondent’s motion for review of the Fifth District’s order denying
respondent’s motion for appellate attorney’s fees is hereby denied as untimely
pursuant to Florida Rule of Appellate Procedure 9.400(c).
rendered in this Court pursuant to section 768.79, Florida Statutes, is hereby
denied. (PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON,
C.J., dissents with an opinion, in which CANADY, J., concurs.)
the judgment against State Farm, I would deny Curran’s motion for attorney’s
fees and grant State Farm’s motion for attorney’s fees, conditioned upon the
trial court’s finding that State Farm is entitled to fees pursuant to its
proposal for settlement. (CANADY, J., concurs.)
* * *