Insurance policies often require an insured to comply with certain conditions before a lawsuit can be filed. Such conditions could include sitting for an examination under oath (EUO) or preparing a sworn proof of loss, among others. Failure to comply with those conditions prior to the filing of a lawsuit could result in contested litigation for years regardless of how much damage your property has sustained.
The bottom line is that one should timely comply with all requests submitted by insurance companies prior to filing suit. But what is one to do if they make every possible effort to comply with those requests, but the insurance company does very little to actually obtain the information being requested?
A Florida Appellate Court concluded that the insured’s failure to appear for an EUO did not bar the insurance claim.
In Whistler’s Park v. FIGA, the appellate court asked if the true purpose had been lost in the recent cottage industry of EUO litigation in Florida courts. That court answered that question by stating many insurance companies have, in fact, lost sight of the true purpose of the EUO and instead engaged in gotcha litigation tactics in order to potentially save themselves from paying on valid insurance claims. The court went on to comment that litigating cases in this way seems “more about strategy than truth.”
In Whistler’s Park, the insurance company had requested an EUO. But the EUO was never in fact scheduled prior to the filing of suit. Nonetheless, the trial court granted summary judgment in favor of the insurance company because the EUO never took place. However, the appellate court reversed that ruling. In vacating the trial’s court ruling, the appellate court concluded that the insurance company was never in fact prejudiced by the insured’s failure to attend the unscheduled EUO. The appellate court concluded that the insurer was not prejudiced in this case because the insured expressed a willingness to comply, but the insurer failed to set up a time and place.