       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

              ROBERTO SOLANO and MARLENE SOLANO,
                          Appellants,

                                     v.

           STATE FARM FLORIDA INSURANCE COMPANY,
                          Appellee.

                              No. 4D12-1198

                             [October 1, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen O’Connor and John B. Bowman, Judges; L.T.
Case No. 10-40785 02.

  Timothy H. Crutchfield and Adrian N. Arkin of Mintz Truppman, P.A.,
North Miami, for appellants.

   Kara Berard Rockenbach and David A. Noel of Methe & Rockenbach,
P.A., West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

PER CURIAM.

   Appellee’s motion for rehearing is denied.

FORST and KLINGENSMITH, JJ., concur.
WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.

    In its motion for rehearing, State Farm contends that our opinion
conflicts with Goldman v. State Farm Fire General Insurance Co., 660 So.
2d 300 (Fla. 4th DCA 1995). In Goldman, we held that a policy provision
requiring the insured to submit to an examination under oath (EUO) was
a condition precedent. Id. at 304. Where the insured refused to submit
to the examination prior to filing suit, the insured failed to comply with a
condition precedent and forfeited his insurance coverage. Id. at 305-06.
We distinguished Goldman in Haiman v. Federal Insurance Co., 798 So. 2d
811 (Fla. 4th DCA 2001), by concluding that while a total failure to comply
with policy provisions might amount to a breach precluding recovery, as
in Goldman, “If, however, the insured cooperates to some degree or
provides an explanation for its noncompliance, a fact question is presented
for resolution by a jury.” Haiman, 798 So. 2d at 812 (quoting Diamonds &
Denims, Inc. v. First of Georgia Ins. Co., 417 S.E.2d 440, 441-42 (Ga. Ct.
App. 1992)). This case is more like Haiman than Goldman.

    Moreover, I question the continued viability of Goldman’s analysis that
the requirement to submit to an EUO is a “condition precedent,” based
upon the supreme court’s analysis in State Farm Mutual Automobile
Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). In Curran, the court
considered whether an insured’s failure to appear for a compulsory
medical examination (“CME”), which was required in an uninsured
motorist insurance policy, constituted the breach of a condition precedent,
when the policy also provided that no action could be brought against the
insurer until the insured complied with all terms of the policy. Id. at 1072-
73. The court held that the policy provision was not a condition precedent.
Id. at 1076. The court explained:

      The terms “condition precedent” and “condition subsequent”
      are defined as follows in Florida:

          A condition precedent is one that is to be performed
          before the contract becomes effective. Conditions
          subsequent are those that pertain not to the
          attachment of the risk and the inception of the policy
          but to the contract of insurance after the risk has
          attached and during the existence thereof. A condition
          subsequent presupposes an absolute obligation under
          the policy and provides that the policy will become
          void, or its operation defeated or suspended, or the
          insurer relieved wholly or partially from liability, upon
          the happening of some event or the doing or omission
          of some act.

      31 Fla. Jur. 2d Insurance § 2686 (2013) (footnotes omitted).10

          10 The Supreme Court of Nebraska has given examples of
          conditions precedent as the obligation of the applicant to
          satisfy the requirements of insurability, be in good health
          for life and health insurance policies, pay the required
          premium, and answer all questions in the application to the


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          best of the applicant’s knowledge and belief. D & S Realty,
          Inc. v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1, 9–10
          (2010).

Id. at 1078 (footnote within original quote). As part of its reasoning, the
court concluded that the insurance company’s interpretation of the “no
action” clause would turn every obligation of the insured into a condition
precedent, which was contrary to the court’s own precedent:

      [State Farm’s argument that] the “no action” language in the
      policy applies to every term of the policy, regardless of whether
      the insured’s duties are capable of being performed prior to
      filing an action against the insurer. Consequently, adherence
      to State Farm’s argument would turn every duty, including
      the duty to assist and cooperate, considered a condition
      subsequent in [Bankers Insurance Co. v.] Macias, [475 So. 2d
      1216 (Fla. 1985)] into a condition precedent to coverage and
      suit. Macias, 475 So. 2d at 1218 (failure to cooperate is a
      condition subsequent and it is proper to place the burden of
      showing prejudice on the insurer).

Id. at 1078-79 (footnotes omitted). The court rejected this interpretation
and concluded that the clause requiring a CME was not a condition
precedent, meaning “an insured’s breach of this provision should not
result in post-occurrence forfeiture of insurance coverage without regard
to prejudice.” Id. at 1079.

   Certainly, the Curran analysis and Goldman are inconsistent. Like
CMEs conducted under uninsured motorist policies, EUOs conducted
under homeowner insurance policies are conducted after the policy has
gone into effect, in the event of a loss allegedly covered by the policy.
Furthermore, the “Suits Against Us” clause relied upon by State Farm in
this case, like the “no action” language at issue in Curran, applies to every
provision in the policy.

   Curran does not address Southern Home Insurance Co. v. Putnal, 49 So.
922 (Fla. 1909), which State Farm also contends is in conflict with our
opinion. Putnal involved a similar “no action” provision in a fire policy and
the failure of an insured to appear for an examination on the loss.
However, as is so common in these much older cases from our legal
history, the case proceeded on a complicated analysis of pleas, demurrers,
and replications, terms foreign to our modern jurisprudence. The court
appears to have construed this provision as valid and binding on the
insured, concluding that any action brought prior to compliance was

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“premature.” Id. at 932. This holding may be consistent with Curran, as
the court in Curran also noted that the policy’s “no action” action clause
would lead to a conclusion that the filing of an action prior to compliance
with all policy terms would make the action premature, usually cured by
abating the action, rather than a forfeiture of benefits. Curran, 135 So. 3d
at 1079. The opinion in Putnal never declares that the “no action”
provision makes the EUO a condition precedent.

   The Fifth District certified conflict with Goldman in State Farm Mutual
Automobile Insurance Co. v. Curran, 83 So. 3d 793 (Fla. 5th DCA 2011).
Because the supreme court answered the certified question also posed by
the appellate court, it did not specifically reach the conflict with Goldman.
Nevertheless, its reasoning and the reasoning in Goldman are inconsistent,
and it would be this court’s duty to follow the opinions of the supreme
court.

   Cases involving the interpretation of the “no action” clause arise
frequently. I would hope that in a proper case the supreme court would
provide additional guidance on this issue. If our decision is contrary to
Putnal, then State Farm may have that vehicle to obtain supreme court
review.

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