               Case: 10-13183        Date Filed: 04/03/2012      Page: 1 of 13

                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         APRIL 3, 2012
                                        No. 10-13183
                                                                          JOHN LEY
                                                                           CLERK

                          D. C. Docket No. 1:09-cv-23624-JLK

MERLY NUNEZ,
a.k.a. Nunez Merly,

                                                           Plaintiff-Appellant,

                                            versus

GEICO GENERAL INSURANCE COMPANY,

                                                           Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Southern District of Florida


                                       (April 3, 2012)


Before DUBINA, Chief Judge, FAY and KLEINFELD,* Circuit Judges.



       *
        Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
             Case: 10-13183     Date Filed: 04/03/2012   Page: 2 of 13

DUBINA, Chief Judge:

      Merly Nuñez, a class representative, appeals the district court’s dismissal of

her complaint for failure to state a claim and its order denying her motion for

reconsideration. Nuñez argues that examinations under oath (“EUOs”) are

impermissible conditions precedent to personal injury protection (“PIP”) coverage

under Florida law and the Florida No-Fault automobile insurance statute based on

the Florida Supreme Court’s decision in Custer Med. Ctr. v. United Auto. Ins. Co.,

62 So. 3d 1086, 1089 n.1, 1091 (Fla. 2010) (per curiam). Geico Insurance

Company insists that any statements regarding EUOs by the Florida Supreme

Court in Custer were merely dicta and not controlling. As a result of varying

interpretations of Custer in the lower Florida state courts, we conclude that Florida

law is unclear in the context of statutorily mandated insurance and the Florida No-

Fault Statute and certify this question to the Florida Supreme Court.

                                         I.

      Nuñez is the named plaintiff and class representative in this class action

brought pursuant to Florida Rule of Civil Procedure 1.220. Nuñez was in a car

accident on September 17, 2008, and suffered injuries. She has an insurance

policy with Geico that provides for PIP benefits. When she requested payment of

her medical bills pursuant to the terms of her insurance policy, Geico denied her


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coverage. She alleges that she was denied coverage because she failed to attend

an EUO. Geico asserts that an EUO is a prerequisite to receiving benefits under

its policy.

       Nuñez filed a class action lawsuit asserting four counts against Geico. The

action was filed in state court on October 26, 2009, and removed to the United

States District Court for the Southern District of Florida on December 4, 2009,

under CAFA, 28 U.S.C. § 1332(d). On January 7, 2010, Geico filed a motion to

dismiss Nuñez’s complaint on all four counts under Federal Rule of Civil

Procedure 12(b)(6). The district court granted Geico’s motion to dismiss with

prejudice on April 13, 2010.

       Nuñez filed a timely motion for reconsideration on May 11, 2010, which the

district court denied. Nuñez appeals the dismissal of count two only, which asked

the district court to determine whether Florida’s PIP Statute, FLA. STAT. §

627.736, permits EUOs as a prerequisite to receiving PIP benefits. The district

court found that there was no language in the PIP statute prohibiting an insurer

from requiring an EUO.

       On September 8, 2011, Geico sent a letter to the Eleventh Circuit Clerk of

Court, pursuant to Federal Rule of Appellate Procedure 28(j), to advise this court

of supplemental authority. Geico asserts that two recent opinions from the


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Appellate Division of the Eleventh Judicial Circuit Court in and for Miami-Dade

County, Florida, impact Geico’s position in this appeal: State Farm Fire & Cas.

Co. v. Suncare Physical Therapy, Inc., No. 08-648 AP (Fla. Cir. Ct., July 13,

2011), and United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. Cir.

Ct., Feb. 3, 2011). Both cases discuss Custer and come to different conclusions on

whether EUOs are permissible conditions precedent to the payment of PIP benefits

under automobile insurance policies. Geico filed a motion to certify the question

of Custer’s precedential value and effect to the Florida Supreme Court, and we

carried that motion with this case.

                                                II.

      “Where there is doubt in the interpretation of state law, a federal court may

certify the question to the state supreme court to avoid making unnecessary Erie1

guesses and to offer the state court the opportunity to interpret or change existing

law.” Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 632 F.3d 1195, 1197

(11th Cir. 2011) (quoting Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267, 1274 (11th

Cir. 2005) (per curiam)). Two unpublished Florida state court decisions decided

after the appeal in this case call into question the effect of the Florida Supreme

Court’s statements on EUOs in Custer.


      1
          Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

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A. Custer Med. Ctr. v. United Auto. Ins. Co.

      In Custer, the medical center provided treatment to a patient whose injuries

were covered under the PIP benefits of an automobile insurance policy. Custer,

62 So. 3d at 1089. After the treatment was complete and bills were submitted,

United Automobile Insurance Company scheduled two independent medical

examinations (“IMEs”) for the patient. Id. The patient did not appear for either

IME, and United denied the patient’s PIP benefits. Id. The Custer lawsuit had

nothing to do with EUOs but the court references an EUO in dictum in one

footnote:

      The concept of a verbal examination under oath is not relevant
      due to the posture of this case and positions of the parties. The
      only argument in this case at the trial court, circuit court, and district
      court of appeal was based upon medical exams and the failure to
      attend medical exams. A purported verbal exam under oath
      without counsel in the PIP context is invalid and more restrictive
      than permitted by the statutorily mandated coverage and the terms
      and limitations permitted under the statutory provisions. The
      prohibition of policy exclusions, limitations, and non-statutory
      conditions on coverage controlled by statute is clear.
      ...
      PIP insurance is markedly different from homeowner's/tenants
      insurance, property insurance, life insurance, and fire insurance,
      which are not subject to statutory parameters and are simply a matter
      of contract not subject to statutory requirements.

Id. at 1089, n.1 (citing Flores v. Allstate Ins. Co., 819 So. 2d 740, 745 (Fla. 2002))

(emphasis added). Since the reference to EUOs is in a footnote and the court itself


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states that EUOs are not relevant to the appeal in Custer, this footnote is obiter

dictum and not binding on any court.

      An EUO is mentioned again in the procedural history and analysis sections

of the Custer decision when the court explains why United petitioned the Third

District Court of Appeals for certiorari. Custer, 62 So. 3d at 1091. The Florida

Supreme Court recognized that the circuit court appellate division quashed the

circuit court’s decision solely on the authority of two cases that were not

reconcilable: Griffin v. Stonewall Ins. Co., 346 So. 2d 97 (Fla. Dist. Ct. App.

1977), and Goldman v. State Farm Gen. Ins. Co., 660 So. 2d 300 (Fla. Dist. Ct.

App. 1995). The Florida Supreme Court clarified the cases:

      In Griffin, the Third District considered the 1975 version of the PIP
      statute, which did not include the “unreasonable refusal ” provision,
      and held that an insured's failure to comply with the condition
      precedent of attendance at a medical examination constituted grounds
      to enter judgment for the insurer. Goldman involved a homeowner's
      insurance policy and the insured's failure to attend an examination
      under oath pursuant to the contractual terms of the policy, which has
      no application in the statutorily required coverage context. The
      Florida No–Fault statute is mandatory and does not recognize
      such a condition. It is therefore invalid and contrary to the
      statutory terms.


Id. (citations omitted) (emphasis added). The Florida Supreme Court was merely

outlining the complex procedural history of the case when it mentioned EUOs in

this context. However, in the footnote the court distinguished statutory PIP

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coverage—at issue in this case—from other types of insurance like homeowners,

fire, life, and property insurance that are based purely on contract. That comment,

along with the court’s suggestion that the no-fault statute is mandatory and does

not recognize an EUO as a condition precedent, puts the law in this area in

question.

      Although the Florida Supreme Court’s statements on EUOs in Custer are

dicta, at least one Florida court finds the decision persuasive. See United Auto.

Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a, at *5 (Fla. Cir. Ct., Feb. 3, 2011)

(relying on Custer and holding that an EUO cannot be a condition precedent to

payment of medical bills under a PIP insurance policy), but cf. State Farm Fire &

Cas. Co. v. Suncare Physical Therapy, Inc., No. 08-648 AP, at *5 (Fla. Cir. Ct.,

July 13, 2011) (finding that the EUO statements in Custer were dicta and could

not be relied upon as precedent and thus holding that EUOs are permissible

conditions precedent to the payment of PIP benefits under automobile insurance

policies in the State of Florida). To date, Diaz is the only Florida case that clearly

holds that an EUO cannot be a condition precedent to PIP recovery.

B. Florida’s No-Fault Statute

      Under Florida’s No-Fault Statute, an insured is not expressly required to

attend an EUO as a condition precedent to bringing suit against an insurer to

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recover PIP benefits. See FLA. STAT. § 627.736. Likewise, there is no language in

the PIP statute prohibiting an insurer from requiring an EUO. Conditions not

expressly addressed in a statute governing insurance coverage are subject to a two

part test: (1) “whether the condition or exclusion unambiguously excludes or

limits coverage[;]” and (2) “whether enforcement of a specific provision would be

contrary to the purpose of the . . . statute.” Flores v. Allstate Ins. Co., 819 So. 2d

740, 745 (Fla. 2002).

      As Geico points out, EUOs are consistent with many provisions in the No-

Fault Statute. Section 627.736(4) states that benefits from an insurer are “due and

payable as loss accrues, upon receipt of reasonable proof of such loss . . . .” FLA.

STAT. § 627.736(4) (emphasis added); see Amador v. United Auto Ins. Co., 748

So. 2d 307, 308 (Fla. Dist. Ct. App. 1999) (acknowledging that “reasonable proof”

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).

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      Geico argues that EUOs are permitted as conditions precedent to coverage

under the PIP statute because they meet the Flores test. Yet in Flores, the Florida

Supreme Court noted that in determining whether a condition not expressed in the

statute is valid, “analogies to cases interpreting coverages that are not statutorily

mandated, such as provisions in fire, life, and property insurance policies, may not

necessarily be illuminating in guiding our analysis [because both PIP and

uninsured motorist are statutorily mandated coverages].” Flores, 819 So. 2d at

745. Many of the cases cited by Geico in its brief, while in general support an

insurer’s right to require EUOs before payment, do not directly address the EUO

problem at issue because they do not involve statutorily required coverage.

C. Florida Case Law

      Although we believe the Florida Supreme Court’s statements regarding

EUOs in Custer are dicta and not binding, Florida law is far from clear. Geico

points to Florida Supreme Court and intermediate appellate court decisions that

affirm the right of insurers to require an EUO in connection with its investigation

of a claim for PIP benefits. While there is a long history of Florida courts

generally affirming the right of an insured to require EUOs prior to payment of

benefits, these cases deal with insurance contracts not based on statute. See S.

Home Ins. Co. v. Putnal, 49 So. 922, 932 (Fla. 1909) (affirming that insured’s

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refusal to comply with fire insurance policy condition that insured submit to an

examination under oath precluded recovery); Edwards v. State Farm Fla. Ins. Co.,

64 So. 3d 730, 732 (Fla. Dist. Ct. App. 2011) (affirming summary judgment for

insurer on ground that insured failed to comply with pre-suit requirement of

submitting to EUO in property insurance contract); Gonzalez v. State Farm Fla.

Ins. Co., 65 So. 3d 608, 609 (Fla. Dist. Ct. App. 2011) (same); Goldman v. State

Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. Dist. Ct. App. 1995) (affirming

that “an insured’s refusal to comply with a demand for an examination under oath

is a willful and material breach of [a homeowner’s] insurance contract which

precludes the insured from recovery under the policy”).

      Because the court in Custer suggested that an EUO is not a condition

precedent to PIP coverage and distinguished EUO cases under PIP with statutorily

mandated coverage from other types of coverage that are not statutorily mandated,

the decision suggests that an EUO is not a condition precedent to PIP coverage.

Absent a clear decision from the Florida Supreme Court on this issue, “we are

bound to follow decisions of the state’s intermediate appellate courts unless there

is some persuasive indication that the highest court of the state would decide the

issue differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002). The

Florida Supreme Court has specifically approved this rule by holding that “[t]he

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decisions of the district courts of appeal represent the law of Florida unless and

until they are overruled by [the Florida Supreme Court].” Id. (quoting Pardo v.

State, 596 So. 2d 665, 666 (Fla. 1992)).

      The Florida appellate courts have not decisively ruled on this issue. The

only case that discusses the right of an insurer to require the insured to submit to

an EUO in the statutory context as a condition precedent to coverage is Shaw v.

State Farm Fire & Cas. Co., 37 So. 3d 329 (Fla. Dist. Ct. App. 2010) (en banc),

decided six months before Custer. In Shaw, the issue before the court was

whether an EUO clause in an automobile insurance policy was binding on an

assignee of the right to payment of no-fault benefits, and the court held that an

assignee medical provider is not required to submit to an EUO. Id. at 335. Before

reaching that conclusion, the court stated that “[i]t is undisputed that a provision in

an insurance policy that requires the insured to submit to an EUO qualifies as a

condition precedent to recovery of policy benefits.” Id. at 331. Because the

decision was not unanimous and the court thought the issue had a wide-ranging

impact, the court certified the following question to the Florida Supreme Court:

“Whether a health care provider who accepts an assignment of no-fault insurance

proceeds in payment of services provided to an insured can be required by a

provision in the policy to submit to an examination under oath as a condition to

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the right of payment?” Id. at 335. That question has not yet been answered by the

Florida Supreme Court.

      The court in Shaw clearly stated that an EUO is a condition precedent to

recovery of benefits if the insurance policy requires the insured to submit to an

EUO. Id. at 331. However, the court did not distinguish the statutory coverage at

issue in that case from other types of insurance like the Florida Supreme Court did

in dicta in Custer. Indeed, the court in Shaw cited the same cases Geico relies on

here to support the position that EUOs are valid conditions precedent under

Florida law, none of which directly apply to statutorily-imposed coverage. Based

on the dicta in Custer, it could be that the Florida Supreme Court may not follow

the appellate court’s statement in Shaw. The interpretation of the Florida No-Fault

Statute is a question of state law that has not been specifically addressed by the

Florida Supreme Court or the intermediate state appellate courts.

                                         III.

      For the foregoing reasons, we delay final judgment in this case until the

Florida Supreme Court has had an opportunity to consider whether an insurer can

require an insured to submit to an EUO as a condition precedent to recovery of PIP

benefits under the Florida No-Fault Statute. Rather than attempting an Erie

“guess” as to how the Florida Supreme Court would rule on this issue, we certify

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the following question to the Florida Supreme Court, pursuant to Fla. Const. art.

V, § 3(b)(6). See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1143 (11th

Cir. 2010):

              Whether, under FLA. STAT. § 627.736, an insurer can require an

              insured to attend an EUO as a condition precedent to recovery of PIP

              benefits?

      The answer to this question will assist this court in determining whether

Nuñez was required to submit to an EUO prior to filing suit against Geico. To

facilitate the resolution of this question, we direct the Clerk to transmit the entire

record of this case, together with copies of the parties’ briefs, to the Florida

Supreme Court. Of course, the Florida Supreme Court is in no way limited by our

question and may consider the case as it sees fit.

QUESTION CERTIFIED.




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