220_C065

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CLAIMANT MUST SUBMIT TO EXAMINATION UNDER OATH AND PRODUCE RECORDS REQUESTED

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Judah Hungerman (Hungerman) was involved in a motor vehicle accident on July 26, 2006 and made a claim for Personal Injury Protection (PIP) benefits under the policy issued to his employer by Nationwide Mutual Fire Insurance Co. (Nationwide). Nationwide paid him PIP benefits until that coverage was exhausted. It then asked Hungerman to submit to examination under oath (EUO) and to obtain a release of medical records so it could investigate its potential liability under the Uninsured Motorists (UM) policy provisions. Nationwide mailed him a second request on this matter in April 2007 and indicated that the investigation was subject to its right to later deny coverage.

Hungerman filed a declaratory judgment action against Nationwide in July 2007, alleging that he was not obligated to submit to an EUO and that Nationwide had no basis on which to reserve its rights because he had not made a written claim for UM benefits. He also requested an order directing Nationwide to "cease and desist" in sending harassing and unauthorized letters and requested award of attorney's fees. This was followed by him filing a motion for summary judgment that Nationwide responded to. At the hearing, he acknowledged that the case involved interpretation of the insurance policy but argued that, because there were no disputed factual issues, judgment in his or Nationwide's favor should be rendered resolving the legal issues.

The circuit court took him up on his argument by filing two orders. One denied Hungerman's request for judgment in his favor. The other was essentially a final judgment in favor of Nationwide. The court determined that Hungerman was an insured driver under the policy and that it provided PIP and UM coverages, in addition to other coverages. It also ruled that the policy provisions obligated him to submit to an EUO and to produce records while permitting Nationwide to reserve its rights even though he had not made a separate written claim for UM coverage. Hungerman appealed.

The appellate court reviewed the circuit court's interpretation of the policy and its provisions de novo (taking a second, fresh look) and concluded that its interpretation of its language, Hungerman's obligations, and Nationwide's rights was correct in all respects. It held that the record did not support Hungerman's contention that Nationwide's conduct in asking for an EUO and medical records and reserving its rights constituted harassment and was unauthorized or unreasonable. It found that Nationwide had complied with the reasonableness provisions of the policy and had not engaged in unfair claim settlement practices and affirmed the circuit court's judgment on all issues.

District Court of Appeal of Florida, Second District. Judah Hungerman, Appellant, v. Nationwide Mutual Fire Insurance Co., Appellee. No. 2D08-2353. July 10, 2009. 11 So.3d 1012