Goldman v. State Farm Fire General Ins. Co.

• Decision Date: 16 August 1995
• Docket Number: No. 94-0925,94-0925
• Parties: 20 Fla. L. Weekly D1844 Richard GOLDMAN and Patricia Goldman, Appellants, v. STATE FARM FIRE GENERAL INSURANCE COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 300

660 So.2d 300

20 Fla. L. Weekly D1844

Richard GOLDMAN and Patricia Goldman, Appellants, v. STATE FARM FIRE GENERAL INSURANCE COMPANY, a foreign corporation, Appellee.

No. 94-0925.

District Court of Appeal of Florida,

Fourth District.

Aug. 16, 1995.

Rehearing and Rehearing En Banc Denied Oct. 3, 1995.

Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Jeffrey M. Liggio of Liggio & Luckman, P.A., West Palm Beach, for appellants.

Mary M. Casteel and D. David Keller of Bunnell, Woulfe, Keller & Gillespie, P.A., Fort Lauderdale, for appellee.

RIVKIND, LEONARD, Associate Judge.

Appellants, plaintiffs below, appeal from a final summary judgment entered in favor of appellee, defendant below, in an action for the breach of an insurance policy. This appeal presents issues arising from a condition in the insurance contract which required each insured to submit to examinations under oath while not in the presence of any other insured. Although motions for summary judgments are reviewed with special scrutiny and a jury determination is generally favored, ¹ we have nonetheless concluded that the entry of summary judgment was correct. The facts material to the instant appeal follow.

I.

In June 1992, appellee issued a homeowners/tenants insurance policy to appellants which included personal property and contents coverage. The appellants' residence was burglarized on October 8, 1992, and they submitted a sworn proof of loss setting forth their claim under the policy. Appellee then began investigating appellants' claim and the circumstances surrounding the loss. On December 30, 1992, as part of its investigation, appellee demanded in writing that both appellants submit to an examination under oath as well as produce certain documents and records. Such demand was made pursuant to a policy condition requiring the insured to submit to an examination under oath. In a section entitled "Suits Against Us," the policy expressly provides that "no action shall be brought unless there has been compliance with the policy provisions."

The examinations under oath were initially scheduled for January 14, 1993, but were rescheduled at the request of appellants' counsel. There is no genuine factual dispute that appellants were aware of appellee's request that they submit to examinations under oath at a mutually convenient time and place as contemplated by the policy.

On January 19, 1993, appellants filed suit against appellee for breach of the insurance contract, ² maintaining that although they had complied with all conditions precedent necessary to entitle them to recovery under the insurance policy, appellee had refused to pay their claim. On the same date that suit was filed, appellants' attorney wrote to appellee's counsel suggesting that the sworn statements be renoticed as depositions in accordance with the Florida Rules of Civil Procedure. ³ Appellee, by letter dated March 1, 1993, renewed its requests for appellants to submit to examinations under oath.

On March 30, 1993, appellee moved for summary judgment on its affirmative defenses of noncompliance with the policy provisions arguing that appellants' failure to submit to examinations under oath prior to filing suit constituted a material breach of the policy terms as well as a failure to satisfy a condition precedent to filing suit on the insurance policy. In support of its motion, appellee submitted affidavits to the effect that it had been unable to complete its investigation due to appellants' failure to submit to an examination under oath; that appellee had neither made payment of the loss nor denied the claim due to its inability to complete its investigation; and that appellants had commenced their legal action against appellee prior to the taking of the examination under oath.

In opposition to the motion for summary judgment, appellants in their opposing affidavits stated that they had complied with the requests of appellee in regard to their claim under the insurance policy to the best of their ability and that, at no time, had they refused to submit to a sworn statement under oath by appellee.

On January 5, 1994, the trial judge granted appellee's motion for summary judgment finding as follows:

1. The contractual requirement for an insured to submit to examination under oath is a valid and binding provision, with which an insured must comply before bringing suit against the insurer on the policy.

2. The Plaintiffs failed to appear for examinations under oath prior to filing suit, despite written requests by STATE FARM.

3. The Plaintiffs' failure to submit to examinations under oath prior to filing their lawsuit is a material breach of the insurance contract which will relieve the insurer of its obligation to pay under the policy. Stringer v. Fireman's Fund Insurance Co., 622 So.2d 145 (Fla. 3d DCA 1993).

On March 9, 1994, final judgment was entered for appellee on the breach of contract claim. Appellants have appealed from the final judgment.

II.

Appellants argue on appeal that summary judgment was improper because genuine issues of material fact existed as to whether appellants' failure to submit to the examination was material and whether such failure resulted in substantial prejudice to appellee. ⁴ Because a finding of prejudice is not essential to a resolution of the legal issues raised in this case, we find that appellants have failed to establish the existence of any genuine issue of material fact which would preclude the entry of summary judgment. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (summary judgment appropriate upon failure of opposing party to present competent evidence revealing a genuine issue of fact: "It is not enough for the opposing party merely to assert that an issue does exist").

III.

An insured's refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy. Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (Fla.1909) (insured's refusal to comply with policy condition that insured submit to an examination under oath "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"); Stringer v. Fireman's Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA), review denied, 630 So.2d 1101 (Fla.1993) (the failure to submit to an examination under oath is a material breach of the insurance policy which will relieve the insurer of the obligation to pay under contract). Other jurisdictions have similarly interpreted the examination under oath requirement of an insurance policy, holding that failure to submit to examination under oath is a material breach of the policy terms and a condition precedent to an insured's right to recover and/or bring suit under the policy. See, e.g., Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944 (11th Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990) (policy provision requiring the insured to take an examination under oath was a condition precedent to suit and that noncompliance constituted a material breach justifying the entry of summary judgment); Fineberg v. State Farm Fire & Cas. Co., 113 N.C.App. 545, 438 S.E.2d 754, review denied, 336 N.C. 315, 445 S.E.2d 395 (1994) (failure to comply with insurance policy condition of submission to examination under oath bars recovery under policy as well as the right to bring suit under policy); Watson v. National Sur. Corp., 468 N.W.2d 448 (Iowa 1991); see also 5A J. Appleman & J. Appleman, Insurance Law & Practice Sec. 3549, at 549-50 (1970) (citing jurisdictions which hold that failure to submit to an examination under oath constitutes material breach and is a defense to an action on the policy); 13A G. Couch, Couch on Insurance 2d Sec. 49A:361, at 759 (M. Rhodes rev. ed. 1982); 44 Am.Jur.2d Insurance Sec. 1364, at 290-91, Sec. 1366 at 294 (1982); Christopher Vaeth, Annotation, Requirement Under Property Insurance Policy That Insured Submit To Examination Under Oath As To Loss, 16 A.L.R.5th 412 (1993).

In analogous cases, where the terms of the insurance policy require that the insured submit to other types of examinations, such as independent medical examinations, Florida courts have held that the insured's willful refusal to submit to such examinations constitutes a material breach which bars recovery. See Griffin v. Stonewall Ins. Co., 346 So.2d 97 (Fla. 3d DCA 1977); DeFerrari v. Government Employees Ins. Co., 613 So.2d 101 (Fla. 3d DCA), review denied, 620 So.2d 760 (Fla.1993); Allstate Ins. Co. v. Graham, 541 So.2d 160 (Fla. 2d DCA 1989); Tindall v. Allstate Ins. Co., 472 So.2d 1291 (Fla. 2d DCA 1985), review denied, 484 So.2d 10 (Fla.1986).

The determinative issue in this case is whether the policy provision requiring the insured to submit to a sworn examination outside the presence of the other insured is a condition precedent to filing suit. ⁵ A substantial line of cases supports the rule that an insurer need not show prejudice when the insured breaches a condition precedent to suit. See United States Fidelity & Guar. Co. v. Wigginton, 964 F.2d 487 (5th Cir.1992) (fire policy was rendered void by insured's failure to submit to examination under oath, regardless of whether insurer was prejudiced where an examination clause was a condition precedent); Bolivar County Bd. of Supervisors v. Forum Ins. Co., 779 F.2d 1081 (5th Cir.1986) (no showing of prejudice necessary when provision is condition precedent); Reliance Ins. Co. v. County Line Place, Inc., 692 F.Supp. 694 (S.D.Miss.1988) (no showing of prejudice necessary when notice provision is condition precedent); Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla.1985) (in cases involving the breach of a condition precedent, the burden is on the insured to show a lack of prejudice); DeFerrari, 613 So.2d at 101 (Fla....