Merly v. GEICO Gen. Ins. Co.

• Decision Date: 03 April 2012
• Docket Number: No. 10–13183.,10–13183.
• Citation: 685 F.3d 1205
• Parties: Merly NUNEZ, a.k.a. Nunez Merly, Plaintiff–Appellant, v. GEICO GENERAL INSURANCE COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

685 F.3d 1205

Merly NUNEZ, a.k.a. Nunez Merly, Plaintiff–Appellant,

v.GEICO GENERAL INSURANCE COMPANY, Defendant–Appellee.

No. 10–13183.

United States Court of Appeals,Eleventh Circuit.

April 3, 2012.

Juan Carlos Montes, Lidsky & Montes Law Firm, PA, Hialeah, FL, for Plaintiff–Appellant.

Frank A. Zacherl, III, Douglas G. Brehm, Maria N. Vernace, Shutts & Bowen, LLP, Miami, FL, for Defendant–Appellee.

Jose E. Pagan, Allan Kopet & Associates, PLLC, Tallahassee, FL, Peter J. Valeta, Meckler Bulger Tilson Marick & Pearson, LLP, Chicago, IL, A. Hinda Klein, Shannon Patricia McKenna, Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Schefer, PA, Hollywood, FL, for Mercury Ins. Co. of Florida, Allstate Ins. Co., Ocean Harbor Ins. Co., Amici Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and FAY and KLEINFELD,^* Circuit Judges.

DUBINA, Chief Judge:

Merly Nuñez, a class representative, appeals the district court's dismissal of her complaint for failure to state a claim and its order denying her motion for reconsideration. Nuñez argues that examinations under oath (“EUOs”) are impermissible conditions precedent to personal injury protection (“PIP”) coverage under Florida law and the Florida No–Fault automobile insurance statute based on the Florida Supreme Court's decision in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1089 n. 1, 1091 (Fla.2010) (per curiam). Geico Insurance Company insists that any statements regarding EUOs by the Florida Supreme Court in Custer were merely dicta and not controlling. As a result of varying interpretations of Custer in the lower Florida state courts, we conclude that Florida law is unclear in the context of statutorily mandated insurance and the Florida No–Fault Statute and certify this question to the Florida Supreme Court.

I.

Nuñez is the named plaintiff and class representative in this class action brought pursuant to Florida Rule of Civil Procedure 1.220. Nuñez was in a car accident on September 17, 2008, and suffered injuries. She has an insurance policy with Geico that provides for PIP benefits. When she requested payment of her medical bills pursuant to the terms of her insurance policy, Geico denied her coverage. She alleges that she was denied coverage because she failed to attend an EUO. Geico asserts that an EUO is a prerequisite to receiving benefits under its policy.

Nuñez filed a class action lawsuit asserting four counts against Geico. The action was filed in state court on October 26, 2009, and removed to the United States District Court for the Southern District of Florida on December 4, 2009, under CAFA, 28 U.S.C. § 1332(d). On January 7, 2010, Geico filed a motion to dismiss Nuñez's complaint on all four counts under Federal Rule of Civil Procedure 12(b)(6). The district court granted Geico's motion to dismiss with prejudice on April 13, 2010.

Nuñez filed a timely motion for reconsideration on May 11, 2010, which the district court denied. Nuñez appeals the dismissal of count two only, which asked the district court to determine whether Florida's PIP Statute, Fla. Stat. § 627.736, permits EUOs as a prerequisite to receiving PIP benefits. The district court found that there was no language in the PIP statute prohibiting an insurer from requiring an EUO.

On September 8, 2011, Geico sent a letter to the Eleventh Circuit Clerk of Court, pursuant to Federal Rule of Appellate Procedure 28(j), to advise this court of supplemental authority. Geico asserts that two recent opinions from the Appellate Division of the Eleventh Judicial Circuit Court in and for Miami–Dade County, Florida, impact Geico's position in this appeal: State Farm Fire & Cas. Co. v. Suncare Physical Therapy, Inc., No. 08–648 AP (Fla.Cir.Ct., July 13, 2011), and United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla.Cir.Ct., Feb. 3, 2011). Both cases discuss Custer and come to different conclusions on whether EUOs are permissible conditions precedent to the payment of PIP benefits under automobile insurance policies. Geico filed a motion to certify the question of Custer's precedential value and effect to the Florida Supreme Court, and we carried that motion with this case.

II.

“Where there is doubt in the interpretation of state law, a federal court may certify the question to the state supreme court to avoid making unnecessary Erie¹ guesses and to offer the state court the opportunity to interpret or change existing law.” Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 632 F.3d 1195, 1197 (11th Cir.2011) (quoting Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267, 1274 (11th Cir.2005) (per curiam)). Two unpublished Florida state court decisions decided after the appeal in this case call into question the effect of the Florida Supreme Court's statements on EUOs in Custer.

A. Custer Med. Ctr. v. United Auto. Ins. Co.

In Custer, the medical center provided treatment to a patient whose injuries were covered under the PIP benefits of an automobile insurance policy. Custer, 62 So.3d at 1089. After the treatment was complete and bills were submitted, United AutomobileInsurance Company scheduled two independent medical examinations (“IMEs”) for the patient. Id. The patient did not appear for either IME, and United denied the patient's PIP benefits. Id. The Custer lawsuit had nothing to do with EUOs but the court references an EUO in dictum in one footnote:

The concept of a verbal examination under oath is not relevant due to the posture of this case and positions of the parties. The only argument in this case at the trial court, circuit court, and district court of appeal was based upon medical exams and the failure to attend medical exams. A purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage and the terms and limitations permitted under the statutory provisions. The prohibition of policy exclusions, limitations, and non-statutory conditions on coverage controlled by statute is clear.

...

PIP insurance is markedly different from homeowner's/tenants insurance, property insurance, life insurance, and fire insurance, which are not subject to statutory parameters and are simply a matter of contract not subject to statutory requirements.

Id. at 1089, n. 1 (citing Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002)) (emphasis added). Since the reference to EUOs is in a footnote and the court itself states that EUOs are not relevant to the appeal in Custer, this footnote is obiter dictum and not binding on any court.

An EUO is mentioned again in the procedural history and analysis sections of the Custer decision when the court explains why United petitioned the Third District Court of Appeals for certiorari. Custer, 62 So.3d at 1091. The Florida Supreme Court recognized that the circuit court appellate division quashed the circuit court's decision solely on the authority of two cases that were not reconcilable: Griffin v. Stonewall Ins. Co., 346 So.2d 97 (Fla.Dist.Ct.App.1977), and Goldman v. State Farm Gen. Ins. Co., 660 So.2d 300 (Fla.Dist.Ct.App.1995). The Florida Supreme Court clarified the cases:

In Griffin, the Third District considered the 1975 version of the PIP statute, which did not include the “ unreasonable refusal” provision, and held that an insured's failure to comply with the condition precedent of attendance at a medical examination constituted grounds to enter judgment for the insurer. Goldman involved a homeowner's insurance policy and the insured's failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. The Florida No–Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.

Id. (citations omitted) (emphasis added). The Florida Supreme Court was merely outlining the complex procedural history of the case when it mentioned EUOs in this context. However, in the footnote the court distinguished statutory PIP coverage—at issue in this case—from other types of insurance like homeowners, fire, life, and property insurance that are based purely on contract. That comment, along with the court's suggestion that the no-fault statute is mandatory and does not recognize an EUO as a condition precedent, puts the law in this area in question.

Although the Florida Supreme Court's statements on EUOs in Custer are dicta, at least one Florida court finds the decision persuasive. See United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a, at *5 (Fla.Cir.Ct., Feb. 3, 2011) (relying on Custer and holding that an EUO cannot be a condition precedent to payment of medical bills under a PIP insurance policy), but cf. State Farm Fire & Cas. Co. v. Suncare Physical Therapy, Inc., No. 08–648 AP, at *5 (Fla.Cir.Ct., July 13, 2011) (finding that the EUO statements in Custer were dicta and could not be relied upon as precedent and thus holding that EUOs are permissible conditions precedent to the payment of PIP benefits under automobile insurance policies in the State of Florida). To date, Diaz is the only Florida case that clearly holds that an EUO cannot be a condition precedent to PIP recovery.

B. Florida's No–Fault Statute

Under Florida's No–Fault Statute, an insured is not expressly required to attend an EUO as a condition precedent to bringing suit against an insurer to recover PIP benefits. See Fla. Stat. § 627.736. Likewise, there is no language in the PIP statute prohibiting an insurer from requiring an EUO. Conditions not expressly addressed in a statute governing insurance coverage are subject to a two part test: (1) “whether the condition or exclusion unambiguously excludes or limits coverage[;]” and (2) “whether enforcement of a specific provision would be contrary to the purpose of the ... statute.” Flores v. Allstate Ins. Co.,...