39 Fla. L. Weekly D2068a
INSURANCE COMPANY, Appellee. 4th District. Case No. 4D12-1198. October 1, 2014.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Eileen O’Connor and John B. Bowman, Judges; L.T. Case No. 10-40785 02.
Counsel: Timothy H. Crutchfield and Adrian N. Arkin of Mintz Truppman, P.A.,
North Miami, for appellants. Kara Berard Rockenbach and David A. Noel of Methe
& Rockenbach, P.A., West Palm Beach, for appellee.
On Motion for Rehearing
Klingensmith, JJ., concur. Warner, J., concurs specially with opinion.)
contends that our opinion conflicts with Goldman
v. State Farm Fire General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA
1995). In Goldman, we held that a policy provision requiring the insured
to submit to an examination under oath (EUO) was a condition precedent.
Id. at 304. Where the insured refused to submit to the examination prior
to filing suit, the insured failed to comply with a condition precedent and
forfeited his insurance coverage. Id. at 305-06. We distinguished
Goldman in Haiman v. Federal Insurance Co., 798 So. 2d 811 (Fla.
4th DCA 2001), by concluding that while a total failure to comply with policy
provisions might amount to a breach precluding recovery, as in Goldman,
“If, however, the insured cooperates to some degree or provides an explanation
for its noncompliance, a fact question is presented for resolution by a jury.”
Haiman, 798 So. 2d at 812 (quoting Diamonds & Denims, Inc. v.
First of Georgia Ins. Co., 417 S.E.2d 440, 441-42 (Ga. Ct. App. 1992)). This
case is more like Haiman than Goldman.
that the requirement to submit to an EUO is a “condition precedent,” based upon
the supreme court’s analysis in State Farm Mutual Automobile Insurance Co. v.
Curran, 135 So. 3d 1071 (Fla. 2014). In Curran, the court considered
whether an insured’s failure to appear for a compulsory medical examination
(“CME”), which was required in an uninsured motorist insurance policy,
constituted the breach of a condition precedent, when the policy also provided
that no action could be brought against the insurer until the insured complied
with all terms of the policy. Id. at 1072-73. The court held that
the policy provision was not a condition precedent. Id. at 1076. The
The terms “condition precedent” and “condition subsequent” are
defined as follows in Florida:
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.
31 Fla. Jur. 2d Insurance § 2686 (2013) (footnotes
10 The Supreme Court of Nebraska has given 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., 280 Neb. 567, 789 N.W.2d 1, 9-10 (2010).
reasoning, the court concluded that the insurance company’s interpretation of
the “no action” clause would turn every obligation of the insured into a
condition precedent, which was contrary to the court’s own precedent:
[State Farm’s argument that] the “no action” language in the policy
applies to every term of the 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, considered a condition subsequent in
[Bankers Insurance Co. v.] Macias, [475 So. 2d 1216 (Fla. 1985)]
into a condition precedent to coverage and suit. 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).
interpretation and concluded that the clause requiring a CME was not a condition
precedent, meaning “an insured’s breach of this provision should not result in
post-occurrence forfeiture of insurance coverage without regard to prejudice.”
Id. at 1079.
Like CMEs conducted under uninsured motorist policies, EUOs conducted under
homeowner insurance policies are conducted after the policy has gone into
effect, in the event of a loss allegedly covered by the policy. Furthermore, the
“Suits Against Us” clause relied upon by State Farm in this case, like the “no
action” language at issue in Curran, applies to every provision in the
49 So. 922 (Fla. 1909), which State Farm also contends is in conflict with our
opinion. Putnal involved a similar “no action” provision in a fire policy
and the failure of an insured to appear for an examination on the loss. However,
as is so common in these much older cases from our legal history, the case
proceeded on a complicated analysis of pleas, demurrers, and replications, terms
foreign to our modern jurisprudence. The court appears to have construed this
provision as valid and binding on the insured, concluding that any action
brought prior to compliance was “premature.” Id. at 932. This holding may
be consistent with Curran, as the court in Curran also noted that
the policy’s “no action” action clause would lead to a conclusion that the
filing of an action prior to compliance with all policy terms would make the
action premature, usually cured by abating the action, rather than a forfeiture
of benefits. Curran, 135 So. 3d at 1079. The opinion in Putnal
never declares that the “no action” provision makes the EUO a condition
Mutual Automobile Insurance Co. v. Curran, 83 So. 3d 793 (Fla. 5th DCA
2011). Because the supreme court answered the certified question also posed by
the appellate court, it did not specifically reach the conflict with Goldman.
Nevertheless, its reasoning and the reasoning in Goldman are
inconsistent, and it would be this court’s duty to follow the opinions of the
frequently. I would hope that in a proper case the supreme court would provide
additional guidance on this issue. If our decision is contrary to Putnal,
then State Farm may have that vehicle to obtain supreme court review.
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