What is an examination under oath?
An examination under oath (EUO) is very similar to a deposition. In some cases, a claimant hurt in an automobile accident will be required to appear in court to testify about his/her injuries and damages in order to be awarded full personal injury protection (PIP) benefits from the insurance company. The examination is normally conducted by a defense attorney representing the insurer, at a court reporter’s office or a similar location. The scope of the questioning is limited to relevant information or information that could reasonably be expected to lead to relevant information concerning the claim or factors regarding coverage for the accident. This “scope” is very vague, and many irrelevant questions are asked at EUO’s. It is crucial to have representation prior to contemplating attendance at a EUO. The information elicited from the insured or omnibus insured is typically transcribed by a court reporter and is often recorded by video.
It is important to note that prior to 2012, Florida Statutes Section 627.736 did not mention EUO requirements at all. As such, EUO’s were solely contained or mentioned in the insurer’s policy. Examinations under oath were solely governed by contract principles, as enforced by the insurance policy. A typical insurance contract indicated that an injured claimant involved in an automobile accident would have to submit to an examination under oath in a reasonable amount of time subsequent to the accident. Failure to appear at said EUO may have resulted in the denial of all Personal Injury Protection (PIP) benefits. Because EUO’s were addressed solely by the insurance contract, the insurer had an obligation to send the insured or the assignee a copy of the insurance policy, prior to attempting to enforce the EUO provisions. Some insurance carriers denied PIP benefits at the inception of a claim based on a claimant’s failure to attend an EUO, regardless of whether there was excusable neglect or a valid reason for the cancellation. As can be expected, there was a lot of uncertainty concerning the insured’s right to enforce the EUO policy provisions prior to the 2012 statutory amendments.
Nunez v. Geico determines if insurance companies can deny PIP benefits for a claimant’s failure to appear for an examination under oath:
Prior to 2012, one of the main questions under the PIP statutes was whether the insurer could deny a claimant’s PIP benefits based on his/her failure to attend a EUO. That question was long debated and finally answered by the Supreme Court in Merly Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013).
Nunez v. Geico Case Facts
Ms. Nunez was involved in a motor vehicle accident in 2008, and she was issued a corresponding Geico insurance policy in 2008. Ms. Nunez filed a complaint in 2009 as a part of a class action to determine whether Geico could deny a claimant’s PIP benefits based on his/her failure to attend an examination under oath. The Florida Supreme Court relied on the Eleventh Circuit’s two-part test to determine whether the EUO policy provisions conflicted with Florida Statues Section 627.736:
(1) “whether the condition or exclusion unambiguously excludes or limits coverage…” and
(2) “ whether enforcement of a specific provision would be contrary to the purpose of the … statute.”
Nunez v. Geico Supreme Court Decision
The Supreme Court reaffirmed that the main objective of the PIP statute is to ensure swift payment of benefits without fault. The entire purpose of PIP was to create a no-fault system that ensured insureds would receive all benefits needed quickly and effectively, including medical coverage, lost wages, funeral disability, etc.. . Most importantly, the Supreme Court stated that enforcing EUO conditions “clearly can and do cause delay and denial of benefits in contravention of the objective of the PIP Statute, which is “swift payment of benefits”. The Court ultimately held that EUO conditions found in Florida insurance policies weren’t enforceable as they were in direct conflict with the terms of Section 627.736 Florida Statutes (2008). Enforcing EUO conditions caused a delay in the receipt of PIP Benefits, and thus contradicted the principles of swift payment in a quick and effective manner.
However, this ruling was limited in application, as the claimant’s accident occurred in 2008, the policy was furnished in 2008, and she filed her complaint in 2009. The Supreme Court held that the 2012 amendments to the Florida Statutes, requiring attendance at all examinations, did not apply retroactively. Thus, the Supreme Court held that an insurer could not deny a claimant’s PIP benefits, based on his/her failure to attend an EUO, prior to the statutory amendments, which came into effect on January 1, 2013.
Post-Statutory Amendments Take Effect in January 2013
Governor Rick Scott was not pleased with the Supreme Court’s decision in the Nunez case. He and the Legislature amended Florida Statutes Section 627.736(g)(6) to include a EUO provision. This newly created statutory amendment specifies that compliance with a EUO is a condition precedent to receiving benefits. This amendment mandates that an insured or omnibus insured must attend a EUO, if requested, prior to receiving PIP benefits. Thus, it is clear that post-January 1, 2013, an insured or omnibus insured must submit to an examination under oath, or risk denial of all PIP benefits for his/her failure to appear.
If you as an injury victim or one of your assignees as a medical provider have had their benefits cut off due to their failure to attend an examination under oath, it is imperative that you contact an experienced PIP litigation attorney that will review your files and determine if this denial is unreasonable. Urgent steps may need to be taken to resume the receipt of PIP benefits.
If you are a medical provider in possession of PIP files prior to 2012, it is also imperative to contact an experienced PIP litigation attorney, as benefits may be due and owing. Post-2012, the PIP amendments will control attendance at EUO’s. As with the majority of Florida Statutes Section 627.736, Section 627.736(g)(6) will certainly be the subject of judicial review. Many claimants will file declaratory actions requesting a ruling on whether or not this new amendment is constitutional, and whether excusable neglect will provide relief from a full denial of PIP benefits.
