Florida Insurance Guaranty Association v. Whistler’s Park, Inc.
This case involves a claim made by a commercial insured under a Southern Family
insurance policy. The Florida Supreme Court has accepted jurisdiction on this appeal from the
Fifth District Court of Appeal. The Fifth District Court of Appeal reversed the trial court’s order
holding that because the insured did not submit to an Examination Under Oath (“EUO”), they
waived their rights under the insurance contract focusing on the fact that there was no prejudice
to FIGA. The District Court of Appeal’s decision was based on their recent opinion in State
Farm v. Curran. [This was a PIP case.] Curran reversed long standing Florida case precedent
that held that an EUO was a condition precedent for coverage. The Supreme Court heard oral
argument in the Curran case on October 2, 2012. FIGA’s appellate counsel, Conroy Simberg
believes that once the Supreme Court issues an opinion in Curran, they will issue an opinion in
this case that conforms to their opinion in Curran. The Court may also have decided to take
FIGA’s case for two distinct reasons. First, it concerns a homeowner/property damage case, not
a PIP case. [Most of the recent Florida cases concerning EUOs have been PIP cases where
insurers have used the failure to attend the EUO to deny coverage.] Second, it concerns the
rights of a guaranty association that was clearly prejudiced by the insured’s failure to attend an
EUO after the loss.