Refusal to Testify at EUO is a Breach of a Condition Precedent

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Court of Appeal Requires Third Trial of Breach of Condition Precedent Case

Read the full article at https://www.linkedin.com/pulse/refusal-testify-examination-under-oath-breach-barry-zalma-esq-cfe and at https://zalma.com/blog and more than 3800 posts.

Generally, across the country, testifying at a properly noticed Examination Under Oath (EUO) is a condition precedent to coverage for any claim. In SAFECO Insurance Company Of Illinois v. Fleurimond Barthelemy, No. 4D20-1045, Florida Court of Appeals, Fourth District (July 14, 2021), in its second trip to the Florida Court of Appeal, the insurer appealed a verdict in favor of the insured.

ZALMA OPINION

The Florida Court of Appeal, although reaching a correct result that reversed the trial court finding in favor of the insured, should have followed the decision of the U.S. Supreme Court in Claflin, found that the refusal to testify at an EUO was a breach of a material condition precedent and entered judgment in favor of the insurer. Rather, it now requires SAFECO to go through a third trial to again prove the breach of a material condition sufficient to allow it to refuse to pay neither defense nor indemnity.

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