Hally Finell v. Florida Insurance Guaranty Association, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

HALLY FINELL,
Appellant,

v.

FLORIDA INSURANCE GUARANTY ASSOCIATION, INC.,
Appellee.

No. 4D2022-0378

[April 10, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jaimie R. Goodman, Judge; L.T. Case No.
502017CA006891.

Percy Martinez, Coral Gables, for appellant.

Hinda Klein of Conroy Simberg, Hollywood, for appellee.

LEVINE, J.

The insured appeals a final judgment in favor of the insurer, finding
that the insured breached the homeowner’s insurance policy by allegedly
failing to submit to an examination under oath. The insured appeared for
the examination but came with a videographer and court reporter. The
insurer had its own videographer and court reporter, whom the insured
objected to as being unreliable. The examination did not proceed. In
granting summary judgment, the trial court found that the insured
breached the policy by failing to submit to an examination under oath. We
find that the trial court erred in entering summary judgment because an
issue of fact remains regarding whether the insured cooperated to some
degree or provided an explanation for not proceeding with the examination
in the presence of only the insurer’s videographer and court reporter,
without the presence of the insured’s videographer and court reporter.
Thus, we reverse.
 The insured had a homeowner’s insurance policy with the insurer.1
The insured made a claim with the insurer for a loss due to water damage.
The homeowner’s insurance policy provided that in the event of a loss, the
insured was required to “[s]ubmit to examination under oath, while not in
the presence of any other ‘insured’ . . . .” The policy further provided: “At
your or our request, the examinations will be conducted separately and
not in the presence of any other persons except legal counsel.”

The insurer scheduled the insured for an examination under oath,
during which the insurer’s videographer and court reporter would be
present. Before the insured’s scheduled examination under oath, the
insured’s counsel emailed the insurer’s counsel advising that the insured
would be bringing her own videographer and court reporter to the
examination. The email stated this was “for the protection of all” because
the insurer’s counsel’s prior court reporters had made material
transcription errors in the past. The insurer objected to the insured
bringing a second videographer and court reporter. The insured appeared
at the scheduled examination with her videographer and court reporter.
The scheduled examination under oath did not proceed, and the insurer
denied the claim.

The insured filed an amended complaint against the insurer for breach
of contract and declaratory judgment due to the insurer’s failure to pay a
covered claim. The insurer filed an answer and affirmative defenses,
alleging the insured breached the policy by failing to submit to an
examination under oath. The insurer moved for summary judgment based
on this affirmative defense. The insurer alleged that the insured had
appeared for the scheduled examination under oath, but “impermissibly
conditioned compliance with the policy on the attendance” of her own
videographer and court reporter.

The insured filed a response to the motion for summary judgment,
claiming that she “sat” for the examination under oath and “complied to
some degree,” but that the acrimonious relationship between the parties’
attorneys prevented the examination from proceeding. The insured
pointed to the documented history of unprofessional conduct by the
insurer’s trial counsel. See SafePoint Ins. Co. v. Hallet, 322 So. 3d 204,
206 n.1 (Fla. 5th DCA 2021) (referring the insurer’s trial counsel to the
Florida Bar based on unprofessional behavior during an examination
under oath); Lopez v. Avatar Prop. & Cas. Ins. Co., 313 So. 3d 230, 232

1 The insurer was originally Avatar Property & Casualty Insurance Co.
During
the pendency of this appeal, Florida Insurance Guaranty Association was
substituted for Avatar as appellee.

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(Fla. 5th DCA 2021) (noting misrepresentations the insurer’s trial counsel
made to the trial court); Fla. Bar v. Allen, No. SC20-1470, 2021 WL
401950, at *1 (Fla. Feb. 4, 2021) (reprimanding the insurer’s trial counsel
for unprofessional conduct); Avatar Prop. & Cas. Ins. Co. v. Jones, 291 So.
3d 663, 668 (Fla. 2d DCA 2020) (noting unprofessional behavior by the
insurer’s trial counsel); Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So.
3d 560, 564-65 (Fla. 2d DCA 2020) (noting unprofessional behavior by the
insurer’s trial counsel).

After a hearing, the trial court granted the motion for summary
judgment. The trial court found that although the insured appeared for
the examination under oath, she did not submit to the examination and
thus willfully and materially breached the policy. Following the denial of
her motion for rehearing, the insured appealed.

A trial court’s entry of summary judgment and a trial court’s
interpretation of a contract are both reviewed de novo. Fla. Inv. Grp. 100,
LLC v. Lafont, 271 So. 3d 1, 4 (Fla. 4th DCA 2019); see also Inlet Colony,
LLC v. Martindale, 340 So. 3d 492, 494 (Fla. 4th DCA 2022).

Summary judgment is proper where “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fla. R. Civ. P. 1.510(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).

An “insured’s refusal to comply with a demand for an examination
under oath is a willful and material breach of an insurance contract which
precludes the insured from recovery under the policy.” Goldman v. State
Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995). “If,
however, the insured cooperates to some degree or provides an explanation
for its noncompliance, a fact question is presented for resolution by a jury.”
Haiman v. Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001) (citation
omitted).

In the instant case, the trial court erred in granting summary judgment
in favor of the insurer because an issue of fact remains as to whether the
insured “refus[ed] to comply” with the examination in the presence of only
the insurer’s videographer and court reporter. See Goldman, 660 So. 2d
at 303. The policy language allows either party to request that the
examination be conducted “not in the presence of any other persons except
legal counsel.” Although the insured wanted a videographer and court
reporter of her choice, the insured also objected to the exclusive presence
of the insurer’s videographer and court reporter, without the presence of
the insured’s videographer and court reporter. Before the examination,

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the insured advised the insurer that she would be bringing her own
videographer and court reporter because she viewed the insurer’s court
reporter as unreliable. The insured based her view on allegedly material
transcription errors made by past court reporters hired by the insurer’s
counsel. At no point did the insurer make clear it would proceed without
the presence of both parties’ videographers and court reporters.

Like in Haiman, the “insured cooperate[d] to some degree” in that she
was present and ready to proceed with the examination, but the insurer
refused to conduct the examination in the presence of the insured’s
videographer and court reporter. 798 So. 2d at 812. The insured also
“provide[d] an explanation for” not proceeding with the examination in the
presence of only the insurer’s videographer and court reporter, due to
concerns about the reliability of the insurer’s court reporter. See id.; see
also Himmel v. Avatar Prop. & Cas. Ins. Co., 257 So. 3d 488 (Fla. 4th DCA
2018) (finding an issue of fact existed where although the insured failed to
appear for the scheduled examination under oath, the record evidence
reflected repeated requests to reschedule the examination due to
unavailability); Lewis v. Liberty Mut. Ins. Co., 121 So. 3d 1136, 1137 (Fla.
4th DCA 2013) (finding, generally, that an issue of fact remained where
the insured requested that her examination under oath be conducted by
telephone or in her attorney’s office).

In summary, because the insurance policy allows either party to
prevent a third party’s presence, an issue of fact remains as to whether
the insured cooperated to some degree or provided an explanation for not
proceeding with the examination under oath in the presence of the
insurer’s videographer and court reporter without the insured’s
videographer and court reporter also being present. Thus, we reverse and
remand for further proceedings.

Reversed and remanded for further proceedings.

WARNER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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