Nunez v. Geico Gen. Ins. Co.

Citation726 F.3d 1231
Decision Date08 August 2013
Docket NumberNo. 10–13183.,10–13183.
PartiesMerly NUNEZ, a.k.a. Nunez Merly, Plaintiff–Appellant, v. GEICO GENERAL INSURANCE COMPANY, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

726 F.3d 1231

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.

Aug. 8, 2013.


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, Jose E. Pagan, Allen Kopet & Associates, PLLC, Tallahassee, FL, Peter J. Valeta, Meckler Bulger Tilson Marick & Pearson, LLP, Chicago, IL, A. Hinda Klein, Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Schefer, PA, Hollywood, FL, Shannon Patricia McKenna, Weston, FL, for Defendant–Appellee.


Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09–cv–23624–JLK.
Before DUBINA, FAY and KLEINFELD,* Circuit Judges.

DUBINA, Circuit Judge:

Merly Nunez (“Nunez”), a class representative, appealed the district court's dismissal of her complaint for failure to state a claim and its order denying her motion for reconsideration. Nunez argued 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 Medical Center v. United Automobile Insurance Co., 62 So.3d 1086, 1089 n. 1, 1091 (Fla.2010). Geico Insurance Company insisted 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 concluded in our previous opinion reported as Nunez v. Geico General Insurance Co., 685 F.3d 1205 (11th Cir.2012), that Florida law was unclear in the context of statutorily mandated insurance and the Florida No–Fault Statute and certified the following question to the Supreme Court of Florida: “[w]hether, under Fla. Stat. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?” Id. at 1211.

On June 27, 2013, the Supreme Court of Florida answered the certified question in the negative as to Fla. Stat. § 627.736, (2008),1 and “confirm[ed the court's] statement in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d at 1086, 1091 (Fla.2010), that ‘[t]he Florida No–Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.’ ” Nunez v. Geico Gen. Ins. Co., 38 Fla. L. Weekly Supp. 440 (Fla. June 27, 2013). Accordingly, based upon

[726 F.3d 1232]

the Supreme Court of Florida's answer to our certified question in its opinion filed on June 27, 2013, and attached hereto as “Appendix I”, we reverse the district court's judgment of dismissal of Nunez's complaint for failure to state a claim and its order denying her motion for reconsideration and remand this case to the district court for further proceedings consistent with the opinion of the Supreme Court of Florida.

REVERSED and REMANDED.

APPENDIX I

SUPREME COURT OF FLORIDA

No. SC12–650

MERLY NUNEZ a/k/a NUNEZ MERLY, Appellant,

vs.

GEICO GENERAL INSURANCE COMPANY, Appellee.

[June 27, 2013]

PERRY, J.

This case is before the Court for review of a question of Florida law certified by the Eleventh Circuit Court of Appeals as being determinative of a cause pending in that court and for which there appears to be no controlling precedent. Specifically, the Eleventh Circuit asks “[w]hether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an [examination under oath] as a condition precedent to recovery of [personal injury protection] benefits?” Nunez v. Geico Gen. Ins. Co., 685 F.3d 1205, 1211 (11th Cir.2012). We have jurisdiction. Seeart. V, § 3(b)(6), Fla. Const.

We answer the certified question in the negative as to section 627.736, Florida Statutes (2008), and confirm our statement in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086, 1091 (Fla.2010), that “[t]he Florida No–Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” A recent amendment to section 627.736 provides otherwise, but did not take effect until January 1, 2013, and does not inform or control our disposition of the present case. See ch. 12–197, § 10, at 2737, 2752, Laws of Fla. (now codified in § 627.736(6)(g), Fla. Stat. (2012)).

I. FACTS/PROCEDURAL HISTORY

Merly Nunez's automobile insurance policy with the Government Employees Insurance Company (Geico) included personal injury protection coverage (PIP) and a condition that “[t]he insured or any other person seeking coverage under this policy must submit to examination under oath [EUO 1] by any person named by us when and as often as we may reasonably require.” Geico denied Nunez's PIP claim for failing to satisfy this condition after she was injured in a car accident on September 17, 2008. She alleged that Geico had thereby violated Florida's PIP statute ( section 627.736, Florida Statutes (2008)) in a class action complaint seeking a declaratory judgment filed in state circuit court on October 26, 2009. See Nunez, 685 F.3d at 1207. The action was removed to a federal district court, which ultimately granted Geico's dismissal motion upon ruling in pertinent part:

[726 F.3d 1233]

[Nunez] asks the Court to determine whether Florida's PIP Statute ... permits EUO's as a prerequisite to receiving PIP benefits. [Geico] points out, and the Court agrees, that there is no language in the PIP statute prohibiting an insurer from requiring an EUO, or from imposing any other reasonable requirements when filing claims. [Nunez] contends that PIP's enactment limited an insured's constitutional right of access to courts and, because of such limitation, the statute specifically outlines the limitations that can be imposed and required of the insured as ... conditions to receiving benefits. Moreover, [Nunez] fails to cite any case, and the Court has found none on its own research, which states that an insurer was precluded from denying an insured benefits, based on the insured's refusal to attend an EUO.
Nunez v. Geico General Ins.
Co., 22 Fla. L. Weekly Fed. D295, D295, 2010 WL 1924441 (S.D.Fla. Apr. 13, 2010). The federal district court denied Nunez's motion for reconsideration, whereupon she filed a notice of appeal to the Eleventh Circuit Court of Appeals on July 2, 2010.

While that appeal was still pending, this Court on November 4, 2010, issued its opinion in Custer, stating as to EUOs that “[t]he Florida No–Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” 62 So.3d at 1091. In subsequent briefing in the Eleventh Circuit, Nunez and Geico disputed whether this and related statements in Custer amounted to a holding or dicta. Upon examining Custer, the PIP statute, and relevant caselaw, the Eleventh Circuit concluded that Florida law was unclear, and certified the following question to this Court: “Whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?” Nunez, 685 F.3d at 1211 (issued April 3, 2012).

About a month later, on May 4, 2012, Governor Rick Scott approved amendments to the PIP statute effective January 1, 2013, including the requirement that insureds seeking benefits under the Florida Motor Vehicle No–Fault Law “comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath.” Ch. 12–197, § 10, at 2737, 2752, Laws of Fla. (now codified in § 627.736(6)(g), Fla. Stat. (2012)).

II. ANALYSIS

In disputing the meaning of section 627.736, Florida Statutes (2008), the parties and amici curiae in this case primarily argue in terms of Custer and the 2012 amendment of the PIP statute. We address those arguments in turn below, applying the de novo standard of review. See generally Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (recognizing in the present posture of answering a question certified by the Eleventh Circuit that “[t]he determination of the meaning of a statute is a question of law and thus is subject to de novo review”).

A. Custer

EUOs were not directly at issue in Custer, in which this Court's primary holding was that the underlying district court of appeal had misapplied the standard of review on second-tier certiorari review of a case involving an insurance company's denial of PIP benefits based on the insured's failure to appear for a medical examination. 62 So.3d at 1088–89. In discussing that misapplication, this Court referenced the fact that,

[726 F.3d 1234]

to support its analysis that attendance at a medical examination was a condition precedent to coverage, the district court incorrectly characterized a letter concerning [the insured's] failure to attend a testimonial examination under oath in August, not a medical exam, as referencing [the insured's] failure to attend the medical examinations scheduled in April. Of note, the letter does not support the [district court's] condition precedent analysis because the relevant quote in the letter is from the policy, which designates attendance at a testimonial examination under oath, not a medical examination, as a condition precedent to receiving PIP benefits.

Id. at 1094–95. In earlier discussing the letter, the Court explained in a footnote that,


[a]lthough the district court of appeal mentions a letter of September 9, 2002, that letter is related to a purported verbal examination under oath with a prohibition of the presence of counsel for an insured, not a medical exam. 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT