Scott Drummond (Drummond) was the driver of a car insured by AMICA Mutual Insurance Company (AMICA) that was involved in an accident on June 11, 2004. David Auslander (Auslander) was a passenger in that vehicle and also had an AMICA policy. Drummond sought medical payments benefits under his policy and Ausland sought medical payments benefits under both policies. AMICA decided to investigate the accident and injuries to both men and arranged through their attorney to examine them and obtain sworn statements at the attorney's office on July 23, 2004. When the men did not complete the sworn statements as required, AMICA exercised its right to require them to submit to Examinations Under Oath (EUOs) to give testimony regarding the accident.

EUOs were subsequently scheduled for August 3, 2004, August 26, 2004and October 5, 2004. In each case, Drummond and Auslander's attorney informed AMICA that his clients would not appear for a variety of reasons. On November 5, 2004, AMICA requested a declaratory judgment concerning whether the failure of the two men to submit to EUOs relieved it of its obligation to pay medical payments benefits. The trial court entered a partial declaratory judgment stating that AMICA was not obligated to pay benefits for any treatments after October 5, 2004, the last date the two men failed to appear for their EUOs. The court also entered a final judgment finding that AMICA was obligated to pay medical payments benefits for treatment given prior to October 5, 2004. On its direct appeal of the final judgment, AMICA argued that the trial court erred in establishing the October 5, 2004 date, that Drummond and Auslander materially breached the insurance policy by failing to appear for the October EUOs and that it was within its rights to refuse to make payments for treatments after August 26, 2004.

The appellate court determined that the insurance policy in question had an express provision that AMICA had no duty to provide coverage if the EUO requirement was not complied with. As a result, Drummond and Auslander's failure to submit to them was a material breach of a condition precedent to AMICA's duty to provide coverage and it was within its rights to refuse to pay benefits for treatments that occurred after August 26, 2004. It determined that the trial court was in error in determining that AMICA had a duty to pay medical payments benefits as established in the final judgment but that it was not in error in determining that AMICA had no duty to pay benefits as established in the partial declaratory judgment. This was because the insurance policy did not have any provisions for times certain for AMICA to investigate the claims or pay the benefits. In addition, AMICA did not refuse to pay the benefits but only suspended them until Drummond and Auslander submitted to the EUOs. The appellate court reversed the trial court's final judgment, affirmed its partial declaratory judgment and remanded the case back to the trial court with directions to enter final judgment in favor of AMICA.

District Court of Appeal of Florida, Second District. AMICA Mutual Insurance Company, Appellant/Cross-Appellee, v. Scott Drummond and David Auslander, Appellees/Cross-Appellants. No. 2D06-5692. Dec. 7, 2007. 970 So.2d 456.