Florida/Georgia Personal Injury & Workers Compensation

same point to this court. By statute, F.S. Section 627.0414, F.S.A., the group life insurer is required

...could include the requirement that an insured submit to an EUO). Subsection (4)(h) of the statute provides that benefits are not due under the statute if there is evidence of fraud “admitted to in a sworn statement by the insured.” FLA. STAT. § 627.736(4)(h). Additionally, Section 627.414(3) expressly authorizes insurers to include any “additional provisions not inconsistent with this code and which are . . . [d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein.” FLA. STAT. § 627.414(3). 8  Geico argues that EUOs are permitted as condition precedents to coverage under the PIP statute because they meet the Flores test....

...that an insured submit to an EUO). Subsection (4)(h) of the statute provides that benefits are not due under the statute if there is evidence of fraud “admitted to in a sworn statement by the insured.” FLA. STAT. § 627.736(4)(h). Additionally, Section 627.414(3) expressly authorizes insurers to include any “additional provisions not inconsistent with this code and which are ... [d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein.” FLA. STAT. § 627.414(3)....

...The parties do not contest the first part of the Flores test, but rather focus on the second part regarding the purpose of the PIP statute. The dissent asserts that by our adherence to what was said in Custer and Flores , in this case, we are abrogating unambiguous provisions found in section 627.414(3), Florida Statutes (2008). The dissent notes, “[Those opinions] do not so much as acknowledge the existence of section 627.414(3).” Dissenting op. at 399. We respectfully disagree with the dissent’s assessment of any abrogation by this opinion. We point out that while Custer and Flores do not address section 627.414(3), those opinions indeed address the conspicuous absence of statutory authority, under the PIP statute, for an insurer to enforce EUO provisions as a condition precedent to its payment of benefits to an insured. Accordingly, we reject the dissent’s view that the EUO provision employed by Geico in its PIP policy may be applied pursuant to section 627.414(3)....

...o include any "additional provisions not inconsistent with this code and which are ... [d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein." FLA. STAT.§ 627.414(3). Nunez, 685 F.3d at 1209....

...2013 Page: 13 of 28 Case: 10-13183 Date Filed: 06/27/2013 Page: 10 of 25 The dissent asserts that by our adherence to what was said in Custer and Flores, in this case, we are abrogating unambiguous provisions found in section 627.414(3), Florida Statutes (2008). The dissent notes, "[Those opinions] do not so much as acknowledge the existence of section 627.414(3)." Dissenting op....

...authority, under the PIP statute, for an insurer to enforce EUO provisions as a condition precedent to its payment of benefits to an insured. Accordingly, we reject the dissent's view that the EUO provi~ion employed by Geico in its PIP policy may be applied pursuant to section 627.414(3)....

...CANADY, J., dissenting. Because I conclude that Geico was authorized by Florida law to include the policy provision regarding examinations under oath, I dissent. Geico's authority to include this policy provision flows directly from section 627.414, Florida Statutes (2008), concerning "[a]dditional policy contents," which states that a "policy may contain additional provisions not inconsistent with this code and which are ......

...policies. And neither the majority nor the appellant have provided any explanation of why Geico's examination under oath (EUO) policy provision goes beyond what is permitted by the statutory prOVISIOn. The majority's only consideration of section 627.414(3) comes in connection with the recitation of a portion of the opinion of the Eleventh Circuit Court of Appeals that quotes the text of the statute....

...embodies, the majority brushes the statute aside. According to the majority, "consistency with certain provisions in the [PIP] statute is not the test." Majority op. at 9. The majority thus effectively abrogates the unambiguous statutory enactment contained in section 627.414(3)....

... Case: 10-13183 Date Filed: 08/08/2013 Page: 26 of 28 Case: 10-13183 Date Filed: 06/27/2013 Page: 23 of 25 Flores suffer from the glaring deficiency that they do not so much as acknowledge the existence of section 627.414(3), much less provide any analysis of its application to PIP policies. When the EU 0 provision is evaluated under the authorization contained in section 627.414(3), no basis can be found for determining that the EUO provision is inconsistent with the insurance code, prohibited by any provision of law, or in conflict with any provisions required to be included in the policy by the PIP statute. Accordingly, the EUO provision constitutes additional policy content that falls within the scope of section 627.414(3). The majority makes much of the potential for unreasonable application of an EUO policy provision, but in this case we are not presented with the issue of whether Geico applied the EUO provision in an unreasonable manner....

...could include the requirement that an insured submit to an EUO). Subsection (4)(h) of the statute provides that benefits are not due under the statute if there is evidence of fraud “admitted to in a sworn statement by the insured.” FLA. STAT. § 627.736(4)(h). Additionally, Section 627.414(3) expressly authorizes insurers to include any “additional provisions not inconsistent with this code and which are . . . [d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein.” FLA. STAT. § 627.414(3). 8  Case: 10-13183 Date Filed: 04/03/2012 Page: 9 of 13 Geico argues that EUOs are permitted as conditions precedent to coverage under the PIP statute because they meet the Flores test....