Failure to Submit to Examination Under Oath – Summary Judgment for Insurance Carrier

The Peterson Bernard Team recently won Summary Judgment in a breach of contract case stemming from a first-party insurance dispute where a homeowner and named insured under the insurance policy at issue (the plaintiff) sued Peterson Bernard’s client (the insurance carrier) seeking to recover approximately $60,000 in damages relating to a plumbing leak that purportedly occurred in the home. 
 
After the leak was discovered by the plaintiff, a mitigation company was called out to the property to perform repairs and dry-out services, which included permanent removal of the plumbing pipe that allegedly failed and caused the leak. The pipe was discarded and permanent repairs had been made prior to the insurance carrier having any notice of the loss or actual knowledge that the plaintiff was making a claim. At the time of inspection, the pipe was not available for the insurance company to inspect and the property alleged to have been damage had already been repaired and/or replaced. 
 
As such, the insurance carrier requested that the plaintiff submit to an Examination Under Oath pursuant to the insurance policy, for purposes of further investigating the loss and alleged property damage. The plaintiff, however, refused to comply with the insurance carrier’s request and failed to appear for an Examination Under Oath on three (3) separate occasions. In lieu of cooperating with the insurance carrier’s requests, the plaintiff filed suit without ever having given an Examination Under Oath prior to doing so.
 
Once the lawsuit commenced, our attorney immediately moved for Summary Judgment on behalf of the insurance carrier, arguing that the plaintiff’s refusal to submit to an Examination Under Oath was a material breach of the insurance policy and precluded coverage. The plaintiff argued that it was unreasonable for the insurance carrier to request an Examination Under Oath, because the plaintiff had already allowed the insurance carrier to inspect the property and take photographs of the property alleged to have been damaged.
 
The Miami-Dade Circuit Court ruled in favor of the insurance carrier and entered Final Summary Judgment against the plaintiff, finding that submitting to an Examination Under Oath upon an insurance carrier’s reasonable request serves as a condition precedent to suit and coverage under the policy, and the plaintiff failed to provide any excuse or show any good cause for refusing to comply with the insurance carrier’s request. The Firm is now seeking to recover the insurance company’s attorney’s fees and costs incurred in defending the lawsuit and for which it is entitled to recover as the prevailing party.