Nunez v. Geico Gen. Ins. Co.

• Decision Date: 27 June 2013
• Docket Number: No. SC12–650.,SC12–650.
• Citation: 117 So.3d 388
• Parties: Merly NUNEZ a/k/a Nunez Merly, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
• Court: Florida Supreme Court

117 So.3d 388

Merly NUNEZ a/k/a Nunez Merly, Appellant,

v.GEICO GENERAL INSURANCE COMPANY, Appellee.

No. SC12–650.

Supreme Court of Florida.

June 27, 2013.

Juan C. Montes of Lidsky & Montes, Attorneys at Law, P.A., Hialeah, FL, for Appellant.

Frank Z. Zacherl, Suzanne Youmans Labrit, and Jerel C. Dawson of Shutts & Bowen LLP, Tampa, FL, for Appellee.

Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL, for Amici Curiae Florida Justice Reform Institute, Florida Insurance Council, and Personal Insurance Federation of Florida.

Peter J. Valeta of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL, for Amici Curiae Property Casualty Insurers Association of America and Allstate Insurance Company.

Marlene S. Reiss, Miami, FL, for Amicus Floridians for Fair Insurance, Inc.

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:

[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, *2 (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,

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 exams and the failure to attend medical exams. A purported verbal exam under oath without counsel[ ²] 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. See Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002) (noting that courts have an obligation to invalidate exclusions on coverage that are inconsistent with the purpose of the statute that mandates the coverage); Salas v. Liberty Mut. Fire. Ins. Co., 272 So.2d 1, 5 (Fla.1972) (recognizing that insurance coverage that is a creature of statute is not susceptible to the attempts of the insurer to limit or negate the protection afforded by the law); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 232–34 (Fla.1971) (stating that automobile liability insurance and uninsured motorist coverage obtained to comply with or conform to the law cannot be narrowed by the insurer through exclusions and exceptions contrary to the law); Diaz–Hernandez v. State Farm Fire & Casualty Co., 19 So.3d 996, 1000 (Fla. 3d DCA 2009) (concluding that a provision in a policy was invalid because it was against the public policy of the statute); Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) (stating that restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid) (citing Flores, 819 So.2d at 745). 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.

Custer, 62 So.3d at 1089 n. 1 (footnote added); accordat 1095–96 (stating that attendance at a EUO without counsel as a condition precedent to coverage is “contrary to the general principles of law concerning affirmative defenses and conditions precedent, as well as the principles underlying the PIP statute”). In distinguishing a case initially cited by the district court, this Court in Custer stated that “Goldman [ v. State Farm General Insurance Co., 660 So.2d 300, 301 (Fla. 4th DCA 1995),] involved a homeowners insurance...