Fassi v. American Fire and Cas. Co., 96-3381
| Decision Date | 05 September 1997 |
| Docket Number | No. 96-3381,96-3381 |
| Citation | 700 So.2d 51 |
| Parties | 22 Fla. L. Weekly D2130 Eugene FASSI and Ann Marie Fassi, Appellants, v. AMERICAN FIRE AND CASUALTY COMPANY, etc., Appellee. |
| Court | Florida District Court of Appeals |
Rehearing Denied Oct. 16, 1997.
Charles E. Davis, of Charles E. Davis, P.A., Orlando, for Appellants.
Andrew P. Rock, of Neilson and Associates, Orlando, for Appellee.
Eugene and Ann Marie Fassi appeal from a final judgment denying their claim for fire damages. We affirm.
After their home was destroyed by fire (under suspicious circumstances) on December 27, 1988, appellants filed a claim for damages under their homeowners' policy with American Fire and Casualty Company. American immediately responded that because of the suspicious circumstances of the fire, appellants would be required under the terms of the policy to submit to examination under oath and provide a sworn claim of loss. Appellants were instructed to contact certain attorneys so that the examination could be scheduled. Appellants failed to contact the attorneys or to send in the sworn proof of claim. Strike one.
A follow up letter was sent to appellants by American advising them: Appellants failed to do so. Strike two.
The law firm, on behalf of American, then wrote to appellants and scheduled the examination for April 11, 1989. The law firm was advised the day before the scheduled examination that appellants would not comply with the policy's requirement to submit to a sworn examination because of the threat of criminal proceedings. However, as stated in Rollins Burdick Hunter of New York, Inc. v. Euroclassics Limited, Inc., 502 So.2d 959, 962 (Fla. 3d DCA 1987):
A civil litigant's fifth amendment right to avoid self-incrimination may be used as a shield but not as a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the fifth amendment and refuse to comply with the defendant's discovery requests, thereby thwarting the defendant's defenses.
Likewise, the claimant may not seek to recover fire losses under an insurance policy and, at the same time, refuse to comply with policy requirements to answer questions under oath because criminal charges related to the cause of the fire may be contemplated or pending against him. The examination in this case was not cancelled because the attorney wished to give appellants the opportunity to state their fifth amendment position on the record. Instead, appellants merely failed to appear. Strike three.
Even so, appellants were again contacted and advised:
Please understand that you have a duty to cooperate with us in our investigation of your insurance claim. Your failure or refusal to cooperate may be considered a breach of your insurance policy, resulting in a denial of coverage. We need to proceed with this investigation before memories fade, and before our abilities to investigate and analyze this claim are severely prejudiced.
We wish to make a fair and informed decision on your insurance claim by developing the objective facts and circumstances of this matter without further delay. However, without your cooperation, we will be unable to complete our investigation. Thus, we must insist that you cooperate with us in our investigation of this claim.
The examinations were rescheduled for April 27, 1989. Appellants again failed to appear. Strike four.
Finally, American contacted appellants on May 9, 1989, and informed them Please explain to us in writing ... why you have not cooperated with us in our...
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