Advanced Florida Medical Group, Corp. (a/a/o Weir) v. Progressive American Insurance Co.
A PIP insurer pled as an affirmative defense that the insured 'failed to appear' for an examination under oath, but moved for and obtained summary judgment on the theory that she 'failed to submit' to the EUO after appearing but disputing videorecording. The Sixth DCA reversed, holding the insurer was bound by its pleading and that the trial court erred in granting summary judgment on an unpled affirmative defense.
Key facts
- PIP insurer Advanced Florida Medical Group obtained summary judgment against insured Weir on the theory that she failed to submit to an examination under oath (EUO), despite pleading only that she failed to appear for the EUO.
- Insured appeared at the scheduled EUO but disputed the insurer's requirement that the examination be videorecorded, and the insurer then moved for summary judgment on the unpled ground of failure to submit.
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Why it matters
Useful for PIP and first-party insurance litigators facing EUO-compliance defenses: the opinion draws a meaningful distinction between an insured who never shows up and one who appears but refuses to proceed on the… — full analysis with a trial
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