In Solano, the insureds appealed a summary judgment entered in favor of
the defense where the trial court held that the insureds failed to comply
with a condition precedent to suit by not appearing for an examination
under oath (EUO). Finding disputed issues of fact to remain, the Fourth
The insureds own residential property insured by State Farm that was damaged
in Hurricane Wilma in 2005. The policy required the insureds to comply
with certain post-loss conditions, including submitting to an EUO, submitting
sworn proofs of loss, giving timely notice of damages, and exhibiting
damages at State Farm’s request.
After State Farm had made certain payments for damages, the insureds retained
a public adjuster, who later submitted numerous sworn proofs of loss.
State Farm eventually asked that the insureds submit to an EUO, and also
asked that the public adjuster submit to an EUO if the insureds intend
to rely upon his knowledge and opinions. Dr. Solano, one of the insureds,
submitted to an EUO, at which he deferred to his wife on certain questions
and to the public adjuster on many.
Dr. Solano’s wife did not submit to an EUO citing mental stress,
and the public adjuster refused to submit to an EUO taking the position
that State Farm could not compel him to provide a sworn statement. The
insureds eventually sued. The trial court granted State Farm summary judgment
finding that the insureds failed to submit to a meaningful EUO which,
as a condition precedent, precluded recovery under the policy.
The Fourth DCA noted that it has held that an EUO required in an insurance
policy is a condition precedent to recovery, and an insured’s refusal
to comply with a demand for an EUO is a willful and material breach of
an insurance contract which precludes the insured from recovery under
the policy. However, the Fourth DCA noted that while a total failure to
comply with a condition precedent can preclude an insured from recovering,
in a case such as this one, where an insured cooperates to some extent,
a fact question remains as to whether the condition is breached to the
extent of denying the insured any recovery under the policy. In this case,
the Court noted that there was not a total failure to comply. Dr. Solano
appeared for his sworn statement. Dr. Solano arranged for the adjuster
to attend an EUO, but it was the adjuster who refused. Nonetheless, the
adjuster had provided substantial information to State Farm. Accordingly,
the Fourth DCA found that a question remains as to whether there was sufficient
compliance with the cooperation provisions of the policy to provide State
Farm with adequate information to settle the loss claims or go to an appraisal.