Florida Supreme Court Holds Insurer Must Plead and Prove Prejudice From Insured’s Failure to Attend CME

In a recent decision in State Farm Mutual Automobile Ins. Co. v. Curran, 2014 Fla. App. LEXIS 3506 (Fla. March 14, 2014) the Florida Supreme Court addressed an auto policy issued by State Farm with a condition requiring an Insured making a UM benefits claim to submit to a compulsory medical examination (CME). A claimant refused to submit to the examination as requested, and then proceeded to sue State Farm when benefits were not paid. State Farm raised the violation of the policy condition as a defense. State Farm also cited a provision of the insurance policy stating there is no right of action against State Farm until all terms of the policy have been met. The Insured then offered to submit to the examination after suit was filed and argued that State Farm could not deny coverage based on the violation because it had not shown it was prejudiced by the violation.

In a 5-2 decision, the Florida Supreme Court held an insured does not forfeit benefits under the policy by breaching the CME provision absent a showing of prejudice. The Court concluded that attending a CME provision is a post-loss obligation of the insured and not a condition precedent to coverage. Therefore, a failure to comply with the CME provision will not bar a claim without a showing of prejudice. Further, the Court placed the burden of pleading and proving prejudice on the insurer because the violation of a post-loss obligation is an affirmative defense.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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