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Roberto Solano, et al. v. State Farm Florida Insurance Company, Case No. 4D12-1198 (4th DCA)

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 DCA reversed.

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.

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