In litigation, this type of question can come up more than one might imagine. For example, in response to a Complaint, an insurance carrier may allege that an insured failed to attend an Examination Under Oath (“EUO”) or submit a sworn proof of loss, only to later discover that no such request had ever been made. Florida’s Third District Court of Appeal addressed this very issue in First Home Insurance Company v. Fleurimond.1
In Fleurimond, the insurance carrier asked for the insureds to submit to an EUO before suit was filed. Without the advice of counsel, the insureds went to the EUO and ended it prematurely. Once they obtained counsel, and before filing suit, they offered to reschedule the EUO; the carrier did not agree and never requested a sworn proof of loss. It was not until after the carrier refused to reschedule the EUO that the insureds filed suit and demanded appraisal.
During litigation, the insurance carrier asked the trial court to dismiss the case and deny the insureds’ request for appraisal. The carrier alleged that the insureds breached their policy by failing to submit to an examination under oath and timely submit a sworn proof of loss. The trial court denied the motion and the carrier appealed.
The appellate court agreed with the trial court and held that the lawsuit was not premature, and that appraisal was properly ordered. Regarding the sworn proof of loss, the appellate court found:
The insurer also contends that the insured failed to file a timely sworn proof of loss. That argument is without merit. The insurance policy requires the filing of a sworn proof of loss within sixty days after the insurance company requests it. The insurer never requested a sworn proof of loss prior to suit being filed.2
Thus, absent a request from the carrier and policy language to the contrary, the insureds were able to move forward with their cause of action. An insured facing a similar situation should carefully read the policy language and consult with knowledgeable legal counsel on the matter.
1 First Home Ins. Co. v. Fleurimond, 36 So. 3d 172 (Fla. 3d DCA 2010).
2 Fleurimond, 36 So.3d at 174.