Studio Imports, LTD., Inc. v. Landmark American Insurance Company

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STUDIO IMPORTS, LTD., INC.,
Appellant,
v.
LANDMARK AMERICAN INSURANCE COMPANY,
a foreign corporation,
Appellee.
No. 4D14-2128
[November 12, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. 09-003623-
CACE (21).
Kevin Fabrikant of Fabrikant & Hernandez, P.A., Hollywood, for
appellant.
Lauren D. Levy of Levy Law Group, P.A., Coral Gables, for appellee.
PER CURIAM.
Affirmed. See Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d
300 (Fla. 4th DCA 1995).
LEVINE and KLINGENSMITH, JJ., concur.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
For the reasons stated in my concurrence on rehearing in Solano v.
State Farm Florida Insurance Co., 155 So. 3d 367, 371 (Fla. 4th DCA
2014), I conclude that State Farm Mutual Automobile Insurance Co. v.
Curran, 135 So. 3d 1071 (Fla. 2014), effectively rejects the analysis of
Goldman v. State Farm Fire General Insurance Co., 660 So. 2d 300 (Fla.
4th DCA 1995), that failure to submit to an examination under oath after
an insurance claim is made, constitutes a breach of a condition
precedent in the policy. In this case, unlike Solano, there was a total
failure to submit to an examination under oath (“EUO”). Thus, this case
squarely presents a conflict between Curran and Goldman, because the
court’s analysis in Curran holds that such a provision is a condition
subsequent, not a condition precedent, and does not compel a forfeiture
of benefits in the event of noncompliance.
Not only do I think there is conflict, I also think this constitutes a
question of great public importance. In Whistler’s Park, Inc. v. Florida
Insurance Guaranty Ass’n, 90 So. 3d 841 (Fla. 5th DCA 2012), the late
Judge Jacqueline Griffin wrote of the proliferation of cases involving EUO
litigation and the forfeiture of benefits under policies of insurance, based
more on a strategy to deny claims than to arrive at the truth about an
insurance claim:
As discussed in Curran, several of Florida’s district courts
of appeal have concluded that the failure of an insured to
appear for an EUO prior to filing suit to recover an unpaid
claim is a material breach of contract, requiring forfeiture of
coverage. These decisions have led to a cottage industry of
EUO litigation. If an insurer can procure a failure to
comply—or, even better, a refusal to comply—with the EUO
requirement, they have a perfect defense to payment.
Similarly, if counsel for insureds can bait the insurer into
refusing payment without adequate justification, this may
trigger a bad faith claim. The actual, if unglamorous, true
purpose of the EUO—verification of the insured’s loss—has
been lost in this larger battle. No doubt there can be
genuine instances of insurance fraud, but the recent and
ever—escalating [sic] number of EUO cases that have arisen
all over the state appear to be more about strategy than
truth.
Id. at 845. I agree with Judge Griffin’s comments. Because of the
explosion of this litigation, the Florida Supreme Court needs to clarify
this area and determine whether Curran applies to the refusal to attend
an EUO.
* * *
Not final until disposition of timely filed motion for rehearing.
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