Merly Nunez v. Geico General Insurance Company

Case: 10-13183 Date Filed: 08/08/2013 Page: 1 of 28

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 10-13183
_____________

D. C. Docket No. 1:09-cv-23624-JLK

MERLY NUNEZ,
a.k.a. Nunez Merly,

Plaintiff-Appellant,

versus

GEICO GENERAL INSURANCE COMPANY,

Defendant-Appellee.

______________

Appeal from the United States District Court
for the Southern District of Florida
______________

(August 8, 2013)

Before DUBINA, FAY and KLEINFELD, * Circuit Judges.

*
Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
 Case: 10-13183 Date Filed: 08/08/2013 Page: 2 of 28

DUBINA, Circuit Judge:

Merly Nunez (“Nunez”), a class representative, appealed the district court’s

dismissal of her complaint for failure to state a claim and its order denying her

motion for reconsideration. Nunez argued that examinations under oath (“EUOs”)

are impermissible conditions precedent to personal injury protection (“PIP”)

coverage under Florida law and the Florida No-Fault automobile insurance statute

based on the Florida Supreme Court’s decision in Custer Medical Center v. United

Automobile Insurance Co., 62 So. 3d 1086, 1089 n.1, 1091 (Fla. 2010). Geico

Insurance Company insisted that any statements regarding EUOs by the Florida

Supreme Court in Custer were merely dicta and not controlling. As a result of

varying interpretations of Custer in the lower Florida state courts, we concluded in

our previous opinion reported as Nunez v. Geico General Insurance Co., 685 F.3d

1205 (11th Cir. 2012), that Florida law was unclear in the context of statutorily

mandated insurance and the Florida No-Fault Statute and certified the following

question to the Supreme Court of Florida: “[w]hether, under FLA. STAT. §

627.736, an insurer can require an insured to attend an EUO as a condition

precedent to recovery of PIP benefits?” Id. at 1211.

2
 Case: 10-13183 Date Filed: 08/08/2013 Page: 3 of 28

On June 27, 2013, the Supreme Court of Florida answered the certified

question in the negative as to FLA. STAT. § 627.736, (2008),1 and “confirm[ed the

court’s] statement in Custer Medical Center v. United Automobile Insurance Co.,

62 So. 3d at 1086, 1091 (Fla. 2010), that ‘[t]he Florida No-Fault statute is

mandatory and does not recognize such a condition. It is therefore invalid and

contrary to the statutory terms.’” Nunez v. Geico Gen. Ins. Co., 38 Fla. L. Weekly

Supp. 440 (Fla. June 27, 2013). Accordingly, based upon the Supreme Court of

Florida’s answer to our certified question in its opinion filed on June 27, 2013, and

attached hereto as “Appendix I”, we reverse the district court’s judgment of

dismissal of Nunez’s complaint for failure to state a claim and its order denying

her motion for reconsideration and remand this case to the district court for further

proceedings consistent with the opinion of the Supreme Court of Florida.

REVERSED and REMANDED.

1
The Florida Supreme Court held that the current version of the statute, which was
effective January 1, 2013, does not apply retroactively.
3
 Case: 10-13183 Date Filed: 08/08/2013
APPENDIX I Page: 4 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 1 of 25

~upreme Court of jflortba
No. SC12-650 ·

MERLY NUNEZ alk/a NUNEZ MERLY,
Appellant,

vs.

GEICO GENERAL INSURANCE COMPANY,
Appellee.

[June 27, 2013]

PERRY, J.

This case is before the Court for review of a question of Florida law certified

by the Eleventh Circuit Court of Appeals as being determinative of a cause

pending in that court and for which there appears to be no controlling precedent.

Specifically, the Eleventh Circuit asks "[w]hether, under FLA. STAT. § 627.736,

an insurer can require an insured to attend an [examination under oath] as a

condition precedent to recovery of [personal injury protection] benefits?" Nunez

v. Geico Gen. Ins. Co., 685 F.3d 1205, 1211 (11th Cir. 2012). We have

jurisdiction. See art. V, § 3(b)(6), Fla. Const.
 Case: 10-13183 Date Filed: 08/08/2013 Page: 5 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 2 of 25

We answer the certified question in the negative as to section 627.736,

Florida Statutes (2008), and confirm our statement in Custer Medical Center v.

United Automobile Insurance Co., 62 So. 3d 1086, 1091 (Fla. 2010), that "[t]he

Florida No-Fault statute is mandatory and does not recognize such a condition. It

is therefore invalid and contrary to the statutory terms." A recent amendment to

section 627.736 provides otherwise, but did not take effect until January 1, 2013,

and does not inform or control our disposition of the present case. See ch. 12-197,

§ 10, at 2737, 2752, Laws of Fla. (now codified in§ 627.736(6)(g), Fla. Stat.

(2012)).

I. FACTS/PROCEDURAL HISTORY

Merly Nunez's automobile insurance policy with the Government

Employees Insurance Company (Geico) included personal injury protection

coverage {PIP) and a condition that "[t]he insured or any other person seeking

coverage under this policy must submit to examination under oath [EU0 1] by any

person named by us when and as often as we may reasonably require." Geico

1. An examination under oath is "an investigative tool whereby an insurer
may request that a claimant pursuing a claim under a policy appear at a specified
location to give a statement under oath. The examination is usually conducted by
an insurance adjuster or defense attorney who interrogates the claimant about the
claim or other factors that may bear on coverage. The statement is almost always
transcribed by a court reporter and is often tape recorded." Russel Lazega, Florida
Motor Vehicle No-Fault Law: Personal Injury Protection (PIP)§ 7:15 (2011-12
ed.).

-2-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 6 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 3 of 25

denied Nunez's PIP claim for failing to satisfy this condition after she was injured

in a car accident on September 17, 2008. She alleged that Geico had thereby

violated Florida's PIP statute (section 627.736, Florida Statutes (2008)) in a class

action complaint seeking a declaratory judgment filed in state circuit court on

October 26, 2009. See Nunez, 68~ F.3d at 1207. The action was removed to a

federal district court, which ultimately granted Geico's dismissal motion upon

ruling in pertinent part:

[Nunez] asks the Court to determine whether Florida's PIP Statute ...
permits EUO's as a prerequisite to receiving PIP benefits. [Geico]
points out, and the Court agrees, that there is no language in the PIP
statute prohibiting an insurer from requiring an EUO, or from
imposing any other reasonable requirements when filing claims.
[Nunez] contends that PIP's enactment limited an insured's
constitutional right of access to courts and, because of such limitation,
the statute specifically outlines the limitations that can be imposed and
required of the insured as ... conditions to receiving benefits.
Moreover, [Nunez] fails to cite any case, and the Court has found
none on its own research, which states that an insurer was precluded
from denying an insured benefits, based on the insured's refusal to
attend an EUO.

Nunez v. Geico General Ins. Co., 22 Fla. L. Weekly Fed. D295, D295 (S.D. Fla.

Apr. 13, 2010). The federal district court denied Nunez's motion for

reconsideration, whereupon she filed a notice of appeal to the Eleventh Circuit

Court of Appeals on July 2, 2010.

While that appeal was still pending, this Court on November 4, 2010, issued

its opinion in Custer, stating as to EUOs that "[t]he Florida No-Fault statute is

- 3-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 7 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 4 of 25

mandatory and does not recognize such a condition. It is therefore invalid and

contrary to the statutory terms." 62 So. 3d at 1091. In subsequent briefmg in the

Eleventh Circuit, Nunez and Geico disputed whether this and related statements in

Custer amounted to a holding or dicta. Upon examining Custer, the PIP statute,

and relevant caselaw, the Eleventh Circuit concluded that Florida law was unclear,

and certified the following question to this Court: "Whether, under FLA. STAT.

§ 627.736, an insurer can require an insured to attend an EUO as a condition

precedent to recovery of PIP benefits?" Nunez, 685 F.3d at 1211 (issued April3,

2012).

About a month later, on May 4, 2012, Governor Rick Scott approved

amendments to the PIP statute effective January 1, 2013, including the requirement

that insureds seeking benefits under the Florida Motor Vehicle No-Fault Law

"comply with the terms of the policy, which include, but are not limited to,

submitting to an examination under oath." Ch. 12-197, § 10, at 2737, 2752, Laws

ofFla. (now codified in§ 627.736(6)(g), Fla. Stat. (2012)).

II. ANALYSIS

In disputing the meaning of section 627.736, Florida Statutes (2008), the

parties and amici curiae in this case primarily argue in terms of Custer and the

2012 amendment of the PIP statute. We address those arguments in turn below,

applying the de novo standard of review. See generally Osborne v. Dumoulin, 55

-4-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 8 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 5 of 25

So. 3d 577, 581 (Fla. 2011) (recognizing in the present posture of answering a

question certified by the Eleventh Circuit that "[t]he determination of the meaning

of a statute is a question of law and thus is subject to de novo review").

A. Custer

EUOs were not directly at issue in Custer, in which this Court's primary

holding was that the underlying district court of appeal had misapplied the standard

of review on second-tier certiorari review of a case involving an insurance

company's denial of PIP benefits based on the insured's failure to appear for a

medical examination. 62 So. 3d at 1088-89. In discussing that misapplication, this

Court referenced the fact that,

to support its analysis that attendance at a medical examination was a
condition precedent to coverage, the district court incorrectly
characterized a letter concerning [the insured's] failure to attend a
testimonial examination under oath in August, not a medical exam, as
referencing [the insured's] failure to attend the medical examinations
scheduled in April. Of note, the letter does not support the [district
court's] condition precedent analysis because the relevant quote in the
letter is from the policy, which designates attendance at a testimonial
examination under oath, not a medical examination, as a condition
precedent to receiving PIP benefits.

Id. at 1094-95. In earlier discussing the letter, the Court explained in a footnote

that,

[a]lthough the district court of appeal mentions a letter of September
9, 2002, that letter is related to a purported verbal examination under
oath with a prohibition of the presence of counsel for an insured, not a
medical exam. The concept of a verbal examination under oath is not
relevant due to the posture of this case and positions of the parties.

- 5-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 9 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 6 of 25

The only argument in this case at the trial court, circuit court, and
district court of appeal was based upon medical exams and the failure
to attend medical exams. A purported verbal exam under oath without
counsele] in the PIP context is invalid and more restrictive than
permitted by the statutorily mandated coverage and the terms and
limitations permitted under the statutory provisions. The prohibition
of policy exclusions, limitations, and non-statutory conditions on
·coverage controlled by statute is clear. See Flores v. Allstate Ins. Co.,
819 So. 2d 740, 745 (Fla. 2002) (noting that courts have an obligation
to invalidate exclusions on coverage that are inconsistent with the
purpose of the statute that mandates the coverage); Salas v. Liberty
Mut. Fire. Ins. Co., 272 So. 2d 1, 5 (Fla.1972) (recognizing that
insurance coverage that is a creature of statute is not susceptible to the
attempts of the insurer to limit or negate the protection afforded by the
law); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 232-
34 (Fla. 1971) (stating that automobile liability insurance and
uninsured motorist coverage obtained to comply with or conform to
the law cannot be narrowed by the insurer through exclusions and
exceptions contrary to the law); Diaz-Hemandez v. State Farm Fire &
Casualty Co., 19 So. 3d 996, 1000 (Fla. 3d DCA 2009) (concluding
that a provision in a policy was invalid because it was against the
public policy of the statute); Vasques v. Mercury Cas. Co., 947 So. 2d
1265, 1269 (Fla. 5th DCA 2007) (stating that restrictions on
statutorily mandated coverage must be carefully examined because
exclusions that are inconsistent with the purpose of the statute are
invalid) (citing Flores, 819 So. 2d at 745). PIP insurance is markedly
different from homeowner' s/tenants insurance, property insurance,
life insurance, and ftre insurance, which are not subject to statutory
parameters and are simply a matter of contract not subject to statutory
requirements.

2. Geico attempts to distinguish Custer based on the "without counsel"
language referenced therein. But, as Nunez correctly counters, "Geico's argument
that Custer is somehow limited to EUO's outside the presence of counsel is not
supported by this Court's analysis in Custer or by the case-law cited therein
supporting same. Moreover, such a reading is illogical since the P.I.P. statute did
not contain any EUO condition, whether with or without the presence of counsel.
Nowhere does the opinion focus on the presence of counsel as more than a mere
fact therein or infer a different result otherwise."

-6-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 10 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 7 of 25

Custer, 62 So. 3d at 1089 n.1 (footnote added); accord at 1095-96 (stating that

attendance at a EUO without counsel as a condition precedent to coverage is

"contrary to the general principles of law concerning affirmative defenses and

conditions precedent, as well as the principles underlying the PIP statute"). In

distinguishing a case initially cited by the district court, this Court in Custer stated

that "Goldman [v. State Farm General Insurance Co., 660 So. 2d 300, 301 (Fla. 4th

DCA 1995),] involved a homeowners insurance policy and the insured's failure to

attend an examination under oath pursuant to the contractual terms of the policy,

which has no application in the statutorily required coverage context. The Florida

No-Fault statute is mandatory and does not recognize such a condition. It is

therefore invalid and contrary to the statutory terms." Custer, 62 So. 3d at 1091.

The Eleventh Circuit considered our statements on EUOs in Custer to be

dicta. Nunez, 685 F.3d at 1208. Regardless, most reported county and circuit

court cases have affirmatively applied Custer in the EUO context. For example, in

comprehensively addressing several such cases, one circuit court ruled:

An EUO policy provision in the context of PIP is not a
condition precedent to coverage or recovery of PIP benefits as it
conflicts with the Florida No-Fault law. Custer Medical Center v.
United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2011); United Auto. Ins.
Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (11th Cir. Ct. (Appellate)
Feb. 3, 2011). "[T]he PIP statute does not impose an EUO condition
upon the insured." United v. Diaz. While an insurer may seek to
require an EUO through its policy where a PIP claim is presented, the
Court finds that failure for the insured to attend an EU 0 does not
serve as a bar to payment of PIP benefits. See Mejias Medical Center

-7-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 11 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 8 of 25

a/a/o Yordanka Bulit v. Esurance, 18 Fla. L. Weekly Supp. 693d (11th
Cty Ct., Feb. 3, 2011). In reaching this conclusion, the Court has
considered Mercury Insurance Company v. Dr. Garrido a/a/o Erix
Dolz, 18 Fla. L. Weekly Supp. 575a (11th Cir. Ct. (Appellate) Apr. 7,
2011) (fmding that an EUO provision is not a condition precedent to
recovery of benefits and calling into question the validity of such
provisions) and State Farm Fire & Casualty Company v. Suncare
Physical Therapy, 18 Fla. L. Weekly Supp. 776a (11th Cir. Ct.
(Appellate) July 13, 2011) (finding an EUO provision is a valid
condition precedent to suit). The Court rules consistent with the
rulings ofDiaz and Garrido.

Y & M Med. Ctr. v. State Farm Fire & Cas. Co., 19 Fla. L. Weekly Supp. 380, 380

(Fla. 11th Cir. Ct. Jan. 18, 2012) (parallel citation omitted). Additionally, at least

one district court of appeal has cited the EUO language in Custer as authority for

denying a petition for writ of certiorari. See United Auto. Ins. Co. v. Two & Two

LLC, 82 So. 3d 1052 (Fla. 4th DCA 2011 ). As one court put it, "[r]egardless of

whether the Florida Supreme Court's discussion ofEUOs in the Custer case is

viewed as the holding, an alternative holding, or simply dicta, ... the reasoning [is]

persuasive[.]" Mercury Ins. Co. ofFla. v. Dr. Eduardo Garrido, P.A., 18 Fla. L.

Weekly Supp. 575, 577 n.3 (Fla. 11th Cir. Ct. Apr. 7, 2011). More than just

persuasive, Custer is correct under the terms of the PIP statute, its underlying

purpose of swift and virtually automatic payment to the insured, and relevant

caselaw.

1. The PIP Statute

- 8-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 12 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 9 of 25

Section 627.736, Florida Statutes (2008), is silent regarding EUOs-it does

not authorize their use, much less denial of benefits for failure to attend one. As

summarized by the Eleventh Circuit in this case:

Geico points out [that] EUOs are consistent with many provisions in
the No-Fault Statute. Section 627.736(4) states that benefits from an
insurer are "due and payable as loss accrues, upon receipt of
reasonable proof of such loss .... " FLA. STAT.§ 627.736(4)
(emphasis added); see Amador v. United Auto. Ins. Co., 748 So. 2d
307, 308 (Fla.Dist.Ct.App.1999) (acknowledging that "reasonable
proof' could include the requirement that an insured submit to an
EUO). Subsection (4)(h) of the statute provides that benefits are not
due under the statute if there is evidence of fraud "admitted to in a
sworn statement by the insured." FLA. STAT.§ 627.736(4)(h).
Additionally, Section 627 .414(3) expressly authorizes insurers to
include any "additional provisions not inconsistent with this code and
which are ... [d]esired by the insurer and neither prohibited by law
nor in conflict with any provisions required to be included therein."
FLA. STAT.§ 627.414(3).

Nunez, 685 F.3d at 1209. But consistency with certain provisions in the statute is

not the test. Rather, as recognized by the Eleventh Circuit, "[c]onditions not

expressly addressed in a statute governing insurance coverage are subject to a two

part test: (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 ofthe ... statute.'" Id. (quoting Flores v. Allstate Ins. Co.,

819 So. 2d 740, 745 (Fla. 2002)). The parties do not contest the first part of the

Flores test, but rather focus on the second part regarding the purpose of the PIP

statute.

-9-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 13 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 10 of 25

The dissent asserts that by our adherence to what was said in Custer and

Flores, in this case, we are abrogating unambiguous provisions found in section

627.414(3), Florida Statutes (2008). The dissent notes, "[Those opinions] do not

so much as acknowledge the existence of section 627.414(3)." Dissenting op. at

23. We respectfully disagree with the dissent's assessment of any abrogation by

this opinion. We point out that while Custer and Flores do not address section

627 .414(3 ), those opinions indeed address the conspicuous absence of statutory

authority, under the PIP statute, for an insurer to enforce EUO provisions as a

condition precedent to its payment of benefits to an insured. Accordingly, we

reject the dissent's view that the EUO provi~ion employed by Geico in its PIP

policy may be applied pursuant to section 627.414(3). Instead, PIP policy

provisions should be promulgated by insurers in a manner that is consistent with

the statutory goal under section 627.736 of ensuring "swift and virtually automatic

payment" of benefits· to insureds under the PIP statute. Majority op. at 17-20.

2. Purpose of the PIP Statute: Swift and Virtually Automatic Payment

"Without a doubt, the purpose of the no-fault statutory scheme is to

'provide swift and virtually automatic payment .... ' " Ivey v. Allstate Ins. Co.,

774 So. 2d 679, 683-84 (Fla. 2000) (quoting Gov't Employees Ins. Co. v.

Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)). Elaborating, this Court has

recognized that

- 10-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 14 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 11 of 25

[t]he PIP statute is unique, in that it abolished "a traditional common-
law right by limiting the recovery available to car accident victims"
and in exchange, required PIP insurance that was recoverable without
regard to fault. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d
1067, 1077 (Fla. 2006). Although recovery is restricted under this
statutory scheme, this Court has held that the PIP statute is a
reasonable alternative to common law tort principles in that it
provides "swift and virtually automatic payment so that the injured
insured may get on with his life without undue financial interruption."
Id. (quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla.
2000)).

Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328, 332 (Fla. 2007). "This

last observation is significant because any impediment to the right of the insured to

recover in a 'swift and virtually automatic' way has the potential for interfering

with the PIP scheme's goal of being a reasonable alternative to common law tort

principles." Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla.

2010).

For this reason, Geico misses the mark in asserting that "EUOs are

consistent with the purposes of the PIP statute," which it identifies as "prevention

of fraud" and "investigation and payment of claims. " 3 The dissent asserts that "in

this case we are not presented with the issue of whether Geico applied the EUO

3. We note that if Geico had particular concerns about fraud or improper
claims by Nunez in the present case, it could have pursued court-ordered discovery
under section 627.736(6)(c), Florida Statutes (2008) (providing that such an order
"may be made only on motion for good cause" and that the "court may, in order to
protect against annoyance, embarrassment, or oppression, as justice requires, enter
an order refusing discovery or specifying conditions of discovery and may order
payments of costs and expenses of the proceeding").

- 11 -
 Case: 10-13183 Date Filed: 08/08/2013 Page: 15 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 12 of 25

provision in an unreasonable manner." Dissenting op. at 23. With all due respect

to our colleague, in this case we are obliged to address whether Geico

unreasonably exercised authority to require a condition precedent, where no such

authority existed at the time under section 627.736. The dissent rationalizes that

"[t]he EUO provision of the policy is simply designed to ensure that the 'swift and

virtually automatic' payment of benefits, is made only to those who are entitled to

those benefits under the law." Dissenting op. at 24. Ironically, it has been more

than four years since Nunez filed her claim for PIP benefits, to no avail for her.

We conclude that Geico's policy provision requiring Nunez and other insureds

who sought PIP benefits prior to January 1, 2013, to be subjected to an EUO as a

condition precedent was unreasonable and unnecessary under Florida law. See

Custer, 62 So. 3d at 1091; Flores, 819 So. 2d at 745; § 627.736, Fla. Stat. (2008).

In order to bolster its argument, Geico offers United Automobile Insurance

Co. v. Stat Technologies, Inc., 787 So. 2d 920, 922 (Fla. 3d DCA 2001), for the

proposition that "the policy to ensure swift payment must be balanced against the

policy to prevent improper claims." But that balance was stated by the district

court in that case in terms of being "obviously contemplated by the legislators in

providing insurers with a 30 day investigatory period." Id. (applying that balance

to hold that "interest on overdue PIP payments does not commence until the loss

accrues, which is 30 days after the insurance company receives notice of a fact of

- 12-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 16 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 13 of 25

covered loss"). While the district court in Stat Technologies implicitly recognized

EUOs as an appropriate investigatory tool for insurance companies, it in no way

indicated that they could properly delay or deny PIP benefits based on an insured's

failure to comply with a contractual EUO condition.

Such delay and denial based on the EU 0 condition in the present case has

certainly kept Nunez from recovering in a "swift and virtually automatic" way-

approximately four years have passed since she filed her claim, and she has still

not received PIP benefits. Accord, e.g., Marlin Diagnostics v. State Farm Mut.

Auto. Ins. Co., 897 So. 2d 469,469-71 (Fla. 3d DCA 2004) (over two years

between filing of claim and appellate court ruling that obligation to attend an EUO

does not shift to the provider merely because the insured assigned her benefits);

Garrido, 18 Fla. L. Weekly Supp. at 575-77 (over five years between date of

accident and circuit court in appellate capacity ultimately ruling in favor of the

insured where insurer denied PIP benefits for failing to cooperate at an EUO; case

illustrating a "prime example" of an insurer's abuse ofEUOs); United Auto. Ins.

Co. v. Diaz, 18 Fla. L. Weekly Supp. 348, 348-51 (Fla. 11th Cir. Ct. Feb. 3, 2011)

(approximately six years between date of accident and circuit court in appellate

capacity ultimately ruling in favor of the insured where insurance company denied

PIP benefits for failure to attend an EUO). While the exact dates are not reflected

on the face of the opinion in Arias v. Affirmative Insurance Co., 944 So. 2d 1195,

- 13-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 17 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 14 of 25

1195-97 (Fla. 4th DCA 2006), it is self-evident that months, if not years, passed

while the parties in that case litigated through the trial and appellate courts about

whether the insured was obligated to attend an EUO in order to obtain PIP benefits

under the terms of the subject insurance po Hey.

We therefore reject Geico's assertion that "EUOs do not interfere with the

PIP statute's objective of requiring swift payment of benefits." As the present case

and the above examples amply illustrate, enforcing EUO conditions clearly can

and do cause delay and denial of benefits in contravention of the purpose of the

PIP statute. See, e.g., Cruz v. State Farm Mut. Auto. Ins. Co., 648 N.W.2d 591,

598 (Mich. 2002) (holding under similar Michigan law that "a no-fault policy that

would allow the insurer to avoid its obligation to make prompt payment upon the

mere failure to comply with an EUO would run afoul of the statute and accordingly

be invalid").

"As a creature of statute rather than a matter for contemplation of the parties

in creating insurance policies, the uninsured motorist protection is not susceptible

to the attempts of the insurer to limit or negate that protection." Flores, 819 So. 2d

at 745 (emphasis deleted) (quoting Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d

1, 5 (Fla. 1972)). The same is true for PIP protection. See Flores, 819 So. 2d at

744-45 (recognizing that PIP insurance is likewise statutorily required); Vasques v.

Mercury Cas. Co, 947 So. 2d 1265, 1269 (Fla. 5th DCA 2007) (applying this

- 14-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 18 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 15 of 25

aspect of Flores in the PIP context). Accordingly, enforcement ofEUO conditions

to delay or deny benefits negates statutory PIP protection and is invalid. See

Vasques, 947 So. 2d at 1269 ("[E]xclusions that are inconsistent with the purpose

of the [PIP] statute are invalid."). This is especially true considering that

"Florida's no-fault laws are construed liberally in favor of the insured." Fla. Med.

& Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So. 3d 329, 341 (Fla. 5th

DCA2010).

3. Caselaw

This Court in Flores recognized that, because PIP is a statutorily mandated

coverage, "analogies to cases interpreting coverages that are not statutorily

mandated, such as provisions in fire, life, and property insurance policies, may not

necessarily be illuminating in guiding our analysis." 819 So. 2d at 745. As in the

Eleventh Circuit, "[m]any of the cases cited by Geico in its brief, while in general

support an insurer's right to require EUOs before payment, do not directly address

the EUO problem at issue because they do not involve statutorily required

coverage." Nunez, 685 F.3d at 1209. Specifically,

Geico points to Florida Supreme Court and intermediate appellate
court decisions that affirm the right of insurers to require an EUO in
connection with its investigation of a claim for PIP benefits. While
there is a long history of Florida courts generally affirming the right of
an insured to require EUOs prior to payment of benefits, these cases
deal with insurance contracts not based on statute. SeeS. Home Ins.
Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (1909) (affirming that
insured's refusal to comply with frre insurance policy condition that

- 15-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 19 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 16 of 25

insured submit to an examination under oath precluded recovery);
Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730, 732 (Fla.Dist.Ct.
App. 2011) (affirming summary judgment for insurer on ground that
insured failed to comply with pre-suit requirement of submitting to
EUO in property insurance contract); Gonzalez v. State Farm Fla. Ins.
Co., 65 So. 3d 608, 609 (Fla.Dist.Ct.App.2011) (same); Goldman v.
State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla.Dist.Ct.App.
1995) (affirming that "an insured's refusal to comply with a demand
for an examination under oath is a willful and material breach of[a
homeowner's] insurance contract which precludes the insured from
recovery under the policy").

Nunez, 685 F.3d at 1209-10. Much the same is true in Geico's brief in this Court,

where it relatedly asserts that "Florida courts have recognized the validity ofEUOs

in the specific context of PIP benefits." But most of those cases simply presumed

the validity ofEUO's without addressing the issue at hand. As explained by the

Eleventh Circuit,

[t]he only case that discusses the right of an insurer to require the
insured to submit to an EUO in the statutory context as a condition
precedent to coverage is Shaw v. State Farm Fire & Cas. Co., 37 So.
3d 329 (Fla.Dist.Ct.App.2010) (en bane), decided six months before
Custer. In Shaw, the issue before the court was whether an EUO
clause in an automobile insurance policy was binding on an assignee
of the right to payment of no-fault benefits, and the court held that an
assignee medical provider is not required to submit to an EUO. Id. at
335. Before reaching that conclusion, the court stated that "[i]t is
undisputed that a provision in an insurance policy that requires the
insured to submit to an EUO qualifies as a condition precedent to
recovery of policy benefits." Id. at 331. Because the decision was not
unanimous and the court thought the issue had a wide-ranging impact,
the court certified the following question to the Florida Supreme
Court: "Whether a health care provider who accepts an assignment of
no-fault insurance proceeds in payment of services provided to an
insured can be required by a provision in the policy to submit to an
examination under oath as a condition to the right of payment?" Id. at

- 16-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 20 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 17 of 25

335. That question has not yet been answered by the Florida Supreme
Court.[ 4]
The court in Shaw clearly stated that an EUO is a condition
precedent to recovery of benefits if the insurance policy requires the
insured to submit to an EUO. Id. at 331. However, the court did not
distinguish the statutory coverage at issue in that case from other
types of insurance like the Florida Supreme Court did in dicta in
Custer. Indeed, the court in Shaw cited the same cases Geico relies on
here to support the position that EUOs are valid conditions precedent
under Florida law, none of which directly apply to statutorily-imposed
coverage.

Nunez, 685 F.3d at 1210. The Eleventh Circuit thus concluded that, "[b]ased on

the dicta in Custer, it could be that the Florida Supreme Court may not follow the

appellate court's statement in Shaw." Id. The Eleventh Circuit's speculation is

correct. Based on the analysis above, we hold in alignment with Custer that EUO

conditions are invalid as contrary to the terms of section 627.736, Florida Statutes

(2008). We disapprove Shaw to the extent it holds otherwise.

B. 2012 Amendment of the PIP Statute

In an apparent response to Custer, the Legislature amended the PIP statute in

2012 to include the requirement that insureds seeking benefits under the Florida

Motor Vehicle No-Fault Law "comply with the terms of the policy, which include,

but are not limited to, submitting to an examination under oath." Ch. 12-197,

§ 10, at 2752, Laws of Fla. (now codified in§ 627.736(6)(g), Fla. Stat. (2012),

effective January 1, 2013)). Because Nunez's policy with Geico was issued in

4. Review of Shaw was not sought in this Court.

- 17-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 21 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 18 of 25

2008, her accident was in 2008, and she filed her class action complaint in 2009,

this amendment does not directly apply to the present case, and Geico does not

contend otherwise. Rather, Geico argues that "[w]here, as here, a statutory

amendment is enacted 'soon after controversies as to the interpretation of the

original act arise,' the amendment may be viewed as a 'legislative interpretation of

the original law and not as a substantive change thereof.' "(quoting Lowry v.

Parole & Probation Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985)).

But, while several of the cases cited by Geico in this context involve

subsequent amendments to statutorily created insurance laws, those amendments

generally favored the insured, not the insurer. See lvey v. Chicago Ins. Co., 410

So. 2d 494, 497 (Fla. 1982) (finding subsequent amendment to the uninsured

motorist statute to be a clarification of Legislature's intent to allow insured "to

stack the uninsured motorist coverage of policies of which she is a beneficiary

when determining whether another party is an uninsured motorist"); Vasques v.

Mercury Cas. Co., 947 So. 2d 1265, 1270 (Fla. 5th DCA 2007) (finding that the

PIP statute validated its holding that "[t]o allow insurers to deny coverage of PIP

benefits where someone other than the claimant makes a false statement for the

purpose of defeating coverage would violate the well-articulated public policy

considerations giving rise to personal injury protection benefits in this state"); but

see Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat' I Ins. Co., 882 So. 2d

- 18-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 22 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 19 of 25

1027, 1029-30 (Fla. 3d DCA 2004) (affirming dismissal of insured's complaint

that the higher "limiting charge" PIP fee schedule applied, finding that subsequent

amendment to PIP statute "shows that the purpose of the amendment was to clarify

that the [lower] [']participating fee['] schedule was the proper fee schedule under

the original statute").

Of these cases, Vasques (which this Court cited in Custer) is most on point

insofar as, like the present case, it involves the denial of a PIP claim. The district

court in that case held:

We ... exercise our narrow authority to issue a writ of
certiorari in this case because the circuit court's decision
impermissibly disregards Florida's public policy as expressed in the
PIP statute. PIP insurance is a statutorily required coverage to comply
with Florida's no-fault law and is an integral part of the no-fault
statutory scheme. The purpose of the PIP statute is to provide for
speedy payment of medical bills and compensation for lost income for
accident victims. Given its purpose, both this court and the Florida
supreme court have held the provisions of Florida's No-Fault Act
must be construed liberally in favor of the insured.
The PIP statute in effect at the time of Vasques' injury did not
expressly permit an exclusion for fraud, but there was no blanket
prohibition against the inclusion of general conditions affecting
coverage or even exclusions, so long as the limitation was consistent
with the purposes of the statute. However, restrictions on statutorily
mandated coverage must be carefully examined because exclusions
that are inconsistent with the purpose of the statute are invalid. In
light of the overarching purposes behind the statute's protection,
conditions or exclusions must be carefully scrutinized to determine,
frrst, whether the condition or exclusion unambiguously excludes or
limits coverage, and then, second, to determine whether enforcement
of a specific provision would be contrary to the purpose of the no-
fault statute. Furthermore, because PIP is a statutorily mandated
coverage, analogies to cases interpreting coverages that are not

- 19-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 23 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 20 of 25

statutorily mandated, such as provisions in fire, life, and property
insurance policies, may not necessarily be illuminating.
Manifestly, a policy provision that is interpreted to eliminate
personal injury protection benefits for an innocent third-party claimant
based on misstatements made by the policyholder to the insurer would
be inconsistent with the statutory scheme. Florida has gone to
extreme lengths to assure that personal injury protection benefits
follow every licensed vehicle and cover any injured person. It makes
no sense that this mandated coverage for an injured person could
evaporate simply because someone else designated an "insured" under
the policy-even though a stranger to the claim-lied.

Vasques, 947 So. 2d at 1269 (citations omitted). It likewise makes no sense that

mandated PIP coverage could evaporate simply because, as in the present case, the

insured failed to attend an EUO that was neither required under the then-applicable

statute nor authorized thereunder as a basis for denial of benefits.

We therefore find that the 2012 amendment at issue amounts to a substantive

change, not just a legislative clarification, of the PIP statute, especially considering

the careful examination that applies in this context and our responsibility to

construe the provisions of Florida's No-Fault Act liberally in favor of the insured.

Id. We accordingly hold that the 2012 amendment does not inform or control our

disposition of the present case. We do not otherwise comment on the applicability

or validity of the 2012 amendment.

III. CONCLUSION

In sum, we hold in alignment with Custer that EU0 conditions are invalid as

contrary to the terms of section 627.736, Florida Statutes (2008). We disapprove

-20-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 24 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 21 of 25

Shaw to the extent it holds otherwise. We also hold that the 2012 amendment at

issue substantively changed, not just legislatively clarified, section 627.736, and

that the amendment therefore does not inform or control our disposition of the

present case. We accordingly answer the certified question in the negative and

return this case to the Eleventh Circuit Court of Appeals. We also provisionally

grant Nunez's motion for appellate attorney's fees and remand that motion to the

Eleventh Circuit to determine the amount, conditioned on the party prevailing

pursuant to applicable statutes, rules, and caselaw.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
POLSTON, C.J ., dissents.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

Because I conclude that Geico was authorized by Florida law to include the

policy provision regarding examinations under oath, I dissent.

Geico's authority to include this policy provision flows directly from section

627.414, Florida Statutes (2008), concerning "[a]dditional policy contents," which

states that a "policy may contain additional provisions not inconsistent with this

code and which are ... (3) [d]esired by the insurer and neither prohibited by law

-21 -
 Case: 10-13183 Date Filed: 08/08/2013 Page: 25 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 22 of 25

nor in conflict with any provisions required to be included therein." (Emphasis

added.) Neither the majority nor the appellant have articulated any reason for

concluding that this broadly applicable statutory provision has no force with

respect to personal injury protection (PIP) policies. And neither the majority nor

the appellant have provided any explanation of why Geico's examination under

oath (EUO) policy provision goes beyond what is permitted by the statutory

prOVISIOn.

The majority's only consideration of section 627.414(3) comes in

connection with the recitation of a portion of the opinion of the Eleventh Circuit

Court of Appeals that quotes the text of the statute. Having set forth the text of

section 627 .414(3) and recognizing the requirement of "consistency" that it

embodies, the majority brushes the statute aside. According to the majority,

"consistency with certain provisions in the [PIP] statute is not the test." Majority

op. at 9. The majority thus effectively abrogates the unambiguous statutory

enactment contained in section 627.414(3). Rather than applying this statute, the

majority relies largely on what the Court has previously said in Custer Medical

Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 201 0), and Flores

v. Allstate Insurance Co., 819 So. 2d 740 (Fla. 2002). Of course, neither case

contains any holding that governs the result here. And with respect to any

comments they contain relevant to the question at issue here, both Custer and

-22-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 26 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 23 of 25

Flores suffer from the glaring deficiency that they do not so much as acknowledge

the existence of section 627.414(3), much less provide any analysis of its

application to PIP policies.

When the EU 0 provision is evaluated under the authorization contained in

section 627.414(3), no basis can be found for determining that the EUO provision

is inconsistent with the insurance code, prohibited by any provision of law, or in

conflict with any provisions required to be included in the policy by the PIP

statute. Accordingly, the EUO provision constitutes additional policy content that

falls within the scope of section 627.414(3).

The majority makes much of the potential for unreasonable application of an

EUO policy provision, but in this case we are not presented with the issue of

whether Geico applied the EUO provision in an unreasonable manner. The issue,

rather, is the purely legal question of whether the EUO provision in the PIP policy

is invalid on its face. The fact that a policy provision might be abused by an

insurer seeking to apply it unreasonably is not a proper basis for declaring the

policy provision invalid on its face.

With respect to the issue of the timely payment of benefits, there is nothing

on the face of the EUO provision that is inconsistent with the requirements of the

PIP statute regarding the time for the payment of benefits. Nothing in the EUO

provision indicates that the rights of the insurer cannot be implemented within the

-23-
 Case: 10-13183 Date Filed: 08/08/2013 Page: 27 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 24 of 25

time constraints imposed by the PIP statute. An insurer that fails to do so will face

the legal consequences of that failure. Moreover, an insured whose receipt of

benefits is delayed because of her refusal to comply with a reasonable request for

an EU 0 should not be heard to complain that the right to recover PIP benefits in a

"swift and virtually automatic" way has been thwarted. Majority op. at 8. The

right to a "swift and virtually automatic" recovery of benefits is a right properly

enjoyed by those who in fact meet the legal requirements for the receipt of benefits

and comply with the legal obligations of an insured. The EUO provision ofthe

policy is simply designed to ensure that the "swift and virtually automatic"

payment of benefits is made only to those who are entitled to those benefits under

the law.

I would rephrase the certified question as follows: "Does Florida law permit

an insurer to include in a PIP policy a provision requiring that those seeking

coverage under the policy submit to examination under oath as reasonably required

by the insurer?" And I would answer this question in the affirmative.

POLSTON, C.J., concurs.

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit- Case No. 10-13183

Juan C. Montes ofLidsky & Montes, Attorneys at Law, P.A., Hialeah, Florida,

for Appellant

-24-
\
Case: 10-13183 Date Filed: 08/08/2013 Page: 28 of 28
Case: 10-13183 Date Filed: 06/27/2013 Page: 25 of 25

Frank Z. Zacherl, Suzanne Youmans Labrit, and Jerel C. Dawson of Shutts &
Bowen LLP, Tampa, Florida,

for Appellee

Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore,
Wilkinson, Bell & Dunbar, P.A., Tallahassee, Florida,

for Amici Curiae Florida Justice Reform Institute, Florida Insurance
Council, and Personal Insurance Federation of Florida

Peter J. Valeta of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, Illinois,

for Amici Curiae Property Casualty Insurers Association of America and
Allstate Insurance Company

Marlene S. Reiss, Miami, Florida,

for Amicus Floridians for Fair Insurance, Inc.

-25-