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Merly Nunezv.Geico General Insurance Company

CourtUnited States Court of Appeals for the Eleventh Circuit
Docket No.10-13183
DecidedAugust 8, 2013
Reporter685 F.3d 1205
JudgesUnited States Court of Appeals for the Eleventh Circuit
Tags
CivilInsurance LawContract InterpretationStatutory InterpretationCertified QuestionReversalRemandDissent
Case Summary

Merly Nunez’s Florida automobile policy required her to submit to an examination under oath before receiving personal-injury-protection benefits. After GEICO denied her claim because she did not attend an examination, Nunez filed a putative class action. The federal district court dismissed the complaint, and the Eleventh Circuit certified to the Florida Supreme Court whether Florida’s 2008 no-fault statute permitted an EUO as a condition of recovery. The Florida Supreme Court answered no. It held that the statute’s mandatory PIP coverage did not recognize an EUO condition and that enforcing one to delay or deny benefits conflicted with the statute’s purpose of prompt payment. The court also held that a 2012 amendment expressly authorizing compliance with policy terms was a substantive change, not a clarification, and therefore did not control a 2008 policy and accident. It disapproved contrary Florida precedent to the extent necessary. The Eleventh Circuit then reversed the dismissal and the denial of reconsideration and remanded for further proceedings. The Florida Supreme Court provisionally granted Nunez’s request for appellate attorney’s fees, subject to prevailing under applicable law. Chief Justice Polston dissented, joined by Justice Canady, who argued that the statute authorized insurers to include a reasonable EUO provision.

Opinion

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