Defense Digest, Vol. 29, No. 3, September 2023

A Warning on Wording: Appellate Court Reverses Summary Judgment Ruling for Insurer After Finding Condition Precedent Affirmative Defense Too Narrowly Pled

By
Sean P. Greenwalt

Key Points:

  • Florida’s Sixth District Court of Appeal recently examined the pleading requirements for condition precedents as they relate to an examination under oath.
  • The court concluded that an affirmative defense that is narrowly worded may not be extended to a broader definition despite overall non-compliance with a condition precedent.
  • Pleading condition precedent failure requires specificity by a defendant, but, in certain situations, a broader description of condition precedent noncompliance may be warranted. 

In a cautionary tale, the Sixth District Court of Appeal, in Advanced Florida Medical Group, Corp. v. Progressive American Ins. Co., 364 So.3d 1131 (Fla. 6th DCA 2023), after finding the underlying affirmative defense insufficient, reversed a final summary judgment in favor of an insurer where a claimant failed to complete an examination under oath. The examination was a mandatory condition precedent to receiving personal injury protection benefits under the insurer’s policy and per § 627.736(6)(g), Fla. Stat. (2023).

In the lower court, the insurer obtained summary judgment by arguing the claimant failed to “submit” to a mandatory examination under oath. However, the insurer’s affirmative defense pled that the claimant “failed to appear for an examination under oath.” The trial court entered judgment for the insurer, finding no distinction. The plaintiff appealed. 

On appeal, the Sixth District analyzed the pleading standard for contractual condition precedents, noting that “the burden on the defendant [is] to identify the specific condition that the plaintiff failed to perform[.]” Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195, 197 (Fla. 5th DCA 2015). The court then analyzed the dictionary definitions of the words “submit” (“to yield oneself to the authority or will of another: or permit oneself to be subjected to something”) and “appear” (“to come formally before an authoritative body[.]”)

The Sixth District went on to hold that the defendant’s choice of wording failed to plead its actual defense that the plaintiff failed to “submit” to an examination because a defendant:

[H]as the burden of pleading its affirmative defense with enough specificity and particularity to alert [the Plaintiff] of what condition was violated[.]” Therefore, the insurer “was bound by its pleadings in moving for summary judgment.”

Citing Inphynet Contracting Servs. v. Soria, 77 So. 3d 776, 781 (Fla. 4th DCA 2011).

However, the irony of the situation is that given the District Court of Appeal’s dictionary references, a claimant who fails to “submit” or “yield oneself to the authority or will of another” would certainly also have failed to “appear” or “come formally before and authoritative body[.]” Had the insurer pled more broadly in this situation, they actually would have met the specificity requirement that the Sixth District had placed before them. 

This opinion is an important reminder that no defense should be left behind when drafting an answer and that all affirmative defenses should be artfully worded to encompass the specificity requirement of condition precedents. 

*Sean is an associate in our Tampa, Florida, office. He may be reached at 813.989.1814 or spgreenwalt@mdwcg.com.

 

Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.