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District Court of Appeal of Florida, Sixth District.


Case No. 6D23-482

Decided: May 26, 2023

Jeffrey J. Molinaro, of Fuerst Ittleman David & Joseph, Miami, for Appellant. Kenneth P. Hazouri, of deBeaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for Appellee.

Advanced Florida Medical Group, Corp. (“Advanced”) timely appeals the trial court's summary final judgment in favor of Progressive American Insurance Company (“Progressive”).1 Because the summary final judgment was entered on an affirmative defense not pled, we reverse.

Ms. Mindy Weir, a Progressive policyholder, received medical treatments from Advanced for injuries she sustained in an automobile accident. She assigned her personal injury protection (PIP) benefits to Advanced, who billed Progressive for the treatments. As permitted by the terms of the policy,2 Progressive scheduled an Examination under Oath (“EUO”) of Ms. Weir to determine whether it was required to pay out Ms. Weir's benefits.

Ms. Weir appeared at the scheduled EUO, but because of a disagreement concerning videorecording of the EUO, Progressive terminated the EUO before asking Ms. Weir any substantive questions. Thereafter, Progressive, taking the position that Ms. Weir had failed to comply with a condition precedent to payment of the PIP benefits, refused to pay Advanced. Advanced filed suit. Progressive's answer included a sixth affirmative defense that stated in total: “Plaintiff assignor failed to appear for an Examination Under Oath. Plaintiff's assignor failed to comply with a condition precedent under the policy voiding any right to benefits for the alleged date of loss.” (Emphasis added).

In contrast to the language it employed in its sixth affirmative defense, Progressive argued in its subsequent motion for summary judgment that Ms. Weir “failed to comply with a valid condition precedent prior to filing suit; specifically failing to submit to an EUO.” (Emphasis added). There is a perhaps subtle, yet critical, distinction between the affirmative defense language and that of the summary judgment motion. See Appear, Merriam-Webster, (last visited May 3, 2023) (defining the intransitive verb form of appear as “to come formally before an authoritative body”); Submit, Merriam-Webster, (last visited May 3, 2023) (defining the intransitive verb form of submit as “to yield oneself to the authority or will of another” or “to permit oneself to be subjected to something”).3 Advanced, properly responding to Progressive's position in its pleading, filed a cross motion for summary final judgment, asserting that Ms. Weir was in full compliance with the policy because she was present for the EUO. The motions proceeded to a hearing.

The trial court granted Progressive's motion for summary final judgment and denied Advanced's motion. Its reasoning reveals its acceptance of Progressive's failure-to-submit argument: “By Plaintiff specifically refusing to proceed with the EUO unless the Defendant acquiesced to their unilateral demand to individually record the EUO, the Claimant did not fulfill a required condition precedent to obtaining benefits under the policy.” We are compelled to reverse.

Under Florida's fact pleading standard, an affirmative defense must contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief” to be properly pled. Ranger Constr. Indus., Inc. v. Martin Co. of Daytona, Inc., 881 So. 2d 677, 680 (Fla. 5th DCA 2004) (quoting Fla. R. Civ. P. 1.110(b)). When a defendant raises the affirmative defense that the plaintiff failed to satisfy a condition precedent to activate contractual duties, “the defensive pleader has the burden of pleading and persuasion.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010); see also Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”). The purpose of this requirement is “to put the burden on the defendant to identify the specific condition that the plaintiff failed to perform—so that the plaintiff may be prepared to produce proof or cure the omission, if it can be cured.” Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195, 197 (Fla. 5th DCA 2015) (emphasis added) (quoting Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012)).

Under this well-established law, Progressive had the burden of pleading its affirmative defense with enough specificity and particularity to alert Advanced of what condition was violated and of the proof upon which it intended to rely to prove its affirmative defense. In turn, Progressive was bound by its pleadings in moving for summary judgment. See Inphynet Contracting Servs. v. Soria, 77 So. 3d 776, 781 (Fla. 4th DCA 2011) (holding trial court erred in basing its summary judgment on an unpled affirmative defense); Lobrillo v. Brokken, 837 So. 2d 1059, 1061 (Fla. 3d DCA 2002) (holding trial court erred in considering unpled affirmative defense and granting final summary judgment on that ground); Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (reversing summary judgment where trial court used an unpled affirmative defense as basis for granting summary judgment). Progressive, however, deviated from the averment in its pleading.

Progressive's sixth affirmative defense expressly identifies Ms. Weir's failure to appear as a violation of a condition precedent. This was not its argument in favor of summary judgment, which identified Ms. Weir's failure to submit as a violation of a condition precedent. The two alleged failures are not synonymous. Because Progressive improperly argued a different, unpled affirmative defense in its quest for summary final judgment and the trial court entered summary final judgment on that unpled affirmative defense, we reverse the summary final judgment and remand for further proceedings.



1.   This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.

2.   The policy provides in relevant part:Duties in Case of an Accident or Loss. As a condition precedent to obtaining Personal Injury Protection Coverage, a person must:․3) allow us to take signed and recorded statements, including sworn statements and examinations under oath, which we may conduct outside the presence of you or any other person claiming coverage, and answer all reasonable questions we may ask and provide any documents, records, or other tangible items that we request, when, where, and as often as we may reasonably require ․․Examination under Oath. An insured seeking benefits must comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath. The scope of questioning during the examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this paragraph is a condition precedent to receiving benefits.

3.   Our sister courts have used the terms “appear” and “submit” interchangeably in reference to EUOs, but the situations at hand in those cases involved a party not showing up at all to the EUO. E.g., Nunez v. Universal Prop. & Cas. Ins., Co., 325 So. 3d 267 (Fla. 3d DCA 2021) (insured failed to attend EUO); Amica Mut. Ins., Co. v. Drummond, 970 So. 2d 456 (Fla. 2d DCA 2007) (insureds refused to attend EUO). Here, Ms. Weir did show up at the EUO so we must address the distinction between the two terms.


COHEN and MIZE, JJ., concur.

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Docket No: Case No. 6D23-482

Decided: May 26, 2023

Court: District Court of Appeal of Florida, Sixth District.

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