          Supreme Court of Florida
                                  ____________

                                  No. SC12-157
                                  ____________

   STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
                       Petitioner,

                                         vs.

                                ROBIN CURRAN,
                                  Respondent.

                                 [March 13, 2014]

LABARGA, J.

      This case is before the Court for review of the decision of the Fifth District

Court of Appeal, sitting en banc, in State Farm Automobile Insurance Co. v.

Curran, 83 So. 3d 793 (Fla. 5th DCA 2011). In its decision the district court ruled

upon the following question, which the court certified to be of great public

importance:

      WHEN AN INSURED BREACHES A [COMPULSORY MEDICAL
      EXAMINATION] PROVISION IN AN UNINSURED MOTORIST
      CONTRACT, (IN THE ABSENCE OF CONTRACTUAL
      LANGUAGE SPECIFYING THE CONSEQUENCES OF THE
      BREACH) DOES THE INSURED FORFEIT BENEFITS UNDER
      THE CONTRACT WITHOUT REGARD TO PREJUDICE, OR
      DOES THE PREJUDICE ANALYSIS DESCRIBED IN BANKERS
      INSURANCE CO. V. MACIAS, 475 So. 2d 1216, 1218 (Fla. 1985),
       APPLY? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS
       THE BURDEN OF PLEADING AND PROVING THAT ISSUE?

Id. at 806-07. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In line with

the legal analysis we adopt, we clarify the issue presented by rephrasing the

certified question as follows:

       WHEN AN INSURED BREACHES A COMPULSORY MEDICAL
       EXAMINATION PROVISION IN AN UNINSURED MOTORIST
       CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER
       THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF
       PREJUDICE MUST BE CONSIDERED, WHO BEARS THE
       BURDEN OF PLEADING AND PROVING THAT ISSUE?

We answer the first portion of the certified question in the negative. As to the

second portion of the certified question, we hold that the insurer as the defensive

party pleading an affirmative defense has the burden of pleading and proving

prejudice. For the reasons explained below, we approve the decision of the Fifth

District.

                           BACKGROUND AND FACTS

       The facts of this case are fully set forth in the Fifth District’s opinion in

Curran. Id. at 794-800. We briefly summarize the facts here. This case arose as a

result of a June 2006 traffic accident involving Robin Curran, insured by State

Farm Automobile Insurance Company (State Farm), and the underinsured motorist

who rear-ended Curran’s car. Subsequently, Curran and the underinsured motorist

reached a settlement agreement, which was approved by State Farm. On July 19,



                                          -2-
2007, through counsel, Curran requested her $100,000 underinsured motorist

policy limits and offered to settle and release State Farm from an uninsured

motorist (UM) lawsuit if it tendered the policy limits no later than August 18,

2007. In the letter to State Farm, Curran indicated that her damages were

estimated to be $3.5 million because she suffered from reflex sympathetic

dystrophy syndrome (RSD) type 1. 1 On August 17, 2007, State Farm contacted

Curran’s counsel to schedule a compulsory medical examination (CME) with

Dr. Joseph Uricchio 2 pursuant to the terms of the policy, which provide that a

claimant has the duty to




       1. Reflex sympathetic dystrophy syndrome (RSD), also known as complex
regional pain syndrome, “is an uncommon form of chronic pain that usually affects
an arm or leg.” Mayo Clinic, Complex regional pain syndrome, Definition
(Mar. 31, 2011), http://www.mayoclinic.com/health/complex-regional-pain-
syndrome/ DS00265 (last visited Nov. 5, 2012). RSD “typically develops after an
injury, surgery, stroke or heart attack, but the pain is out of proportion to the
severity of the initial injury, if any.” Id. Type 1 RSD “occurs after an illness or
injury that [did not] directly damage the nerves in [an] affected limb.” Mayo
Clinic, Complex regional pain syndrome, Causes (Mar. 31, 2011),
http://www.mayoclinic.com/health/complex-regional-pain-
syndrome/DS00265/DSECTION=causes (last visited Nov. 5, 2012).

       2. Curran’s physician also referred her to Dr. Uricchio independently.
Curran stated in her deposition that she attempted to schedule an appointment with
Dr. Uricchio, but she was informed that he was no longer scheduling appointments
with new patients. In addition, the trial court took judicial notice that Dr. Uricchio
had over thirty years of experience as a testifying expert on behalf of insurers.
State Farm, however, claimed that Dr. Uricchio was an expert on RSD and often
lectured about RSD on behalf of plaintiffs.


                                         -3-
      be examined by physicians chosen and paid by us as often as we
      reasonably may require. A copy of the report will be sent to the
      person upon written request. The person or his or her legal
      representative if the person is dead or unable to act shall authorize us
      to obtain all medical reports and records.

Further, in a different section, the policy also provided that “[t]here is no right of

action against [State Farm] until all terms of this policy have been met.”

      After this initial letter, Curran and State Farm exchanged several contentious

letters regarding attempts by State Farm to schedule the CME. 3 Ultimately,

however, Curran refused to attend a CME despite receipt of a reservation of rights

letter from State Farm stating that her failure to “assist and cooperate” with the

insurer may result in a denial of coverage. Instead, Curran filed suit against State

Farm. State Farm answered and asserted an affirmative defense contending that

Curran was not entitled to coverage under the policy because she breached the

CME provision, which State Farm characterized as a condition precedent to

coverage under the policy. Thereafter, State Farm moved for summary judgment

on the coverage issue claiming it was entitled to decline coverage as a matter of



       3. A complete discussion of the substance of these letter exchanges is set
forth in Curran, 83 So. 3d at 795-99. Most of the letters involved Curran’s
attempts to condition her attendance at the CME on provisos that would prevent
State Farm from fully asserting its contractual rights under the policy. For
instance, Curran would only submit to a CME if it were the only CME State Farm
would request both prior to litigation and during potential litigation. Further,
Curran sought to limit State Farm’s choice of physicians to conduct the
examination.


                                          -4-
law. Curran also filed a motion for summary judgment contending that the CME

provision was not a condition precedent to coverage and that, at worst, her

complaint was filed prematurely. Curran further claimed that she did not refuse to

submit to a CME, but only asserted reasonable requests to protect her own personal

interests, which requests had been ignored by State Farm. Following the hearing

on both motions, the trial court entered its order granting summary judgment in

favor of Curran. 4

      Curran’s complaint then proceeded to a jury trial, which culminated in an

award of $4,650,589 in damages to Curran. Curran, 83 So. 3d at 800. The trial

court entered a judgment against State Farm for the $100,000 UM policy limits and

State Farm appealed the judgment to the Fifth District. 5

      On appeal, the Fifth District sitting en banc concluded that under these

undisputed facts, Curran did not act reasonably in insisting that State Farm

abandon its contractual rights as a condition to an examination and, consequently,


       4. The trial court found that State Farm’s request for a CME was “not
unreasonable,” but also found that Curran’s requested conditions were “not
unreasonable,” except for the condition that State Farm waive further
examinations. Thus, the trial court concluded that Curran did not refuse to appear
for the examination as asserted by State Farm.

      5. The Fifth District initially rendered a panel decision in favor of State
Farm, finding that Curran refused to attend a scheduled CME prior to filing suit
and that Curran’s breach prohibited recovery under the policy. The Fifth District,
however, granted Curran’s motion for rehearing en banc and withdrew the panel
opinion. Curran, 83 So. 3d at 794-95.


                                        -5-
breached the contract when she failed to attend the CME. It concluded, however,

that in order “to avoid liability under the insurance policy based on noncompliance

with the CME clause, it was essential that State Farm plead and prove a material

breach, which means a breach causing prejudice.” 6 Id. at 803.

      In concluding that State Farm must plead and prove prejudice, the Fifth

District relied on this Court’s precedent in Bankers Insurance Co. v. Macias, 475

So. 2d 1216 (Fla. 1985), and Custer Medical Center v. United Automobile

Insurance Co., 62 So. 3d 1086 (Fla. 2010), for support. 7 The district court noted



       6. The Fifth District affirmed the trial court’s decision on a different basis.
Specifically, the trial court granted summary judgment in favor of Curran finding
that she had not refused to appear for the CME as argued by State Farm. The Fifth
District, however, held that she refused to appear, but that State Farm did not prove
it was prejudiced by Curran’s failure to attend the CME. Thus, Curran’s breach of
the CME provision did not result in forfeiture of UM benefits.

       7. In Bankers Insurance Co. v. Macias, the Court held that a presumption of
prejudice arises where an insured fails to give timely notice of an accident to the
insurer. 475 So. 2d at 1217. In reaching this result, the Court noted that different
presumptions arise depending on which duty has been breached. Specifically, if
the insured breaches a notice provision, prejudice to the insurer is presumed, but
may be rebutted, whereas if a cooperation clause has been breached, the insurer
must show a material failure to cooperate which substantially prejudiced the
insurer. Id. at 1217-18. Further, the Court held that a “failure to cooperate is a
condition subsequent and it is proper to place the burden of showing prejudice on
the insurer.” Id. at 1218.
       In Custer Medical Center v. United Automobile Insurance Co., a case
primarily discussing the limitations of second-tier certiorari review, we held that an
insured’s attendance at a medical examination was not a condition precedent to the
existence of an automobile insurance policy that provided personal injury
protection benefits. 62 So. 3d at 1100. The Court reasoned that medical
examinations in the personal injury protection context, as opposed to the life

                                        -6-
that in Macias, this Court concluded that neither the failure to timely report a claim

nor the breach of the duty to cooperate gives rise to the automatic forfeiture of

insurance benefits absent prejudice to the insurer. Curran, 83 So. 3d at 802.

Applying Macias to the contractual provision here, the Fifth District concluded that

the provision was analogous to the claims notice provision discussed in Macias,

but also overlapped with the insured’s duty to cooperate in that the insurer was

given the opportunity to obtain evidence from the insured. Further, the court

observed that in its reservation of rights letter dated September 18, 2007, State

Farm treated Curran’s actions as a breach of the duty to cooperate. However, the

Fifth District concluded that a determination of whether the CME clause in the

contract was more analogous to a claims notice provision or a cooperation clause

was relevant only to the question of who has the burden on the issue of prejudice.

Curran, 83 So. 3d at 802. The court then noted that Custer resolved this issue by

finding that a “CME provision is a ‘condition subsequent,’ the nonoccurrence of

which is an affirmative defense that the insurer has the burden to plead and prove.”

See Curran, 83 So. 3d at 802-03 (citing Custer, 62 So. 3d at 1097-99).




insurance context, were not scheduled prior to the existence of an automobile
insurance policy or prior to an injury, but instead occur when the insured has
sustained an accident after a policy has been issued. Id. at 1099. Thus, the Court
also held that the insurer has the burden of proof on this issue. Id. at 1100.


                                         -7-
      Having determined that in order to defeat coverage State Farm had the

burden to plead and prove that Curran’s breach caused prejudice, the Fifth District

held that State Farm failed to meet its burden, stating:

      Even had State Farm argued prejudice, the record refutes any such
      allegation, at least to the extent that it would affect entitlement to the
      UM contract benefits. Immediately upon filing suit (seven days after
      the scheduled examination), Curran offered to submit to a medical
      examination pursuant to Florida Rule of Civil Procedure 1.360 (also
      well before the expiration of the time period under the Civil Remedies
      Notice). State Farm declined Curran’s offer, electing instead to defer
      an examination until after the court first decided “if your client’s
      failure to cooperate and failure to comply with all policy terms,
      conditions, limits, provisions and applicable Florida law affects
      coverage under the provisions which you now seek benefits.” After
      the lower court ruled, the record reflects that Curran submitted to a
      CME with Dr. Uricchio. State Farm elected not to call Dr. Uricchio
      as a trial witness. There is no indication that the validity of the CME
      was affected by the short lapse of time attributable to Curran or that
      the rule 1.360 examination was materially different from the CME
      State Farm would have performed under the contract. The effect of
      Curran’s breach was clearly inconsequential as it pertained to the
      merits of her claim for UM benefits.

Id. at 806 (footnote omitted). The Fifth District then certified a question to this

Court as one involving great public importance. 8 Curran, 83 So. 3d at 807.

      State Farm contends that Curran’s failure to attend a CME is a breach of a

condition precedent to both coverage and to suit, which constitutes a material

       8. The Fifth District also certified conflict with De Ferrari v. Government
Employees Ins. Co., 613 So. 2d 101 (Fla. 3d DCA 1993), and Goldman v. State
Farm Fire General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995). Because
we granted review based on the certified question, we do not address the certified
conflict cases.


                                         -8-
breach of the policy resulting in forfeiture of coverage irrespective of any showing

of prejudice to State Farm. State Farm also contends that if prejudice is an issue,

this Court should remand to the trial court so that State Farm has an opportunity to

prove Curran’s breach resulted in actual prejudice. Because Curran does not

contest the Fifth District’s finding that she breached the contract, the pertinent

issue on appeal is whether the breach of such a provision precludes recovery under

the policy as a matter of law without regard to whether the breach resulted in actual

prejudice to the insurer. For the following reasons, we agree with the Fifth District

and hold that the forfeiture of benefits under the policy will not automatically

result upon an insured’s breach of a CME provision unless the insurer pleads and

proves actual prejudice as an element of its affirmative defense. In addition,

because the undisputed facts demonstrate that State Farm was not prejudiced, we

conclude that it is unnecessary to remand the case for further proceedings relating

to a determination on the question of prejudice.

                                     ANALYSIS

      Pursuant to section 627.727(1), Florida Statutes (2007), insurers issuing

motor vehicle policies in Florida are mandated by statute to offer uninsured

motorist coverage unless the insured has expressly rejected the coverage. The

term “uninsured motor vehicle” includes an underinsured motor vehicle, which

occurs where the liability insurer has provided lower bodily injury liability limits



                                         -9-
than the damages sustained by the person legally entitled to recover damages.

§ 627.727(3)(b), Fla. Stat. (2007). Uninsured motorist coverage is intended to

protect persons who are legally entitled to recover damages for injuries caused by

owners or operators of uninsured or underinsured motor vehicles. Flores v.

Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002). In addition, we have stressed

that the statute is not designed “for the benefit of insurance companies or motorists

who cause damage to others.” Young v. Progressive Se. Ins. Co., 753 So. 2d 80,

83 (Fla. 2000) (citing Brown v. Progressive Mut. Ins. Co., 249 So. 2d 429, 430

(Fla. 1971)). Indeed, section 627.727 was intended to place the injured party in

the same position as he or she would have been had the tortfeasor been insured.

See Moore v. Allstate Ins. Co., 570 So. 2d 291, 293 (Fla. 1990). We are mindful

of these principles when deciding whether an insured’s failure to attend a CME

prior to filing suit results in automatic forfeiture without regard to prejudice when

such a breach is raised by an insurer as an affirmative defense.

      Prior to turning to the language of the insurance provisions at issue here, we

briefly review the role of compulsory medical examinations in the UM coverage

context. As was the case here, after an insured has been injured in an accident with

an uninsured or underinsured motorist, an insured will generally settle a claim with

the uninsured or underinsured motorist with approval from the insured’s UM

coverage carrier. See § 627.727(6)(a), Fla. Stat. (2007) (providing that if an



                                        - 10 -
injured person agrees to settle a claim with a liability insurer and its insured, and

the settlement would not fully satisfy the claim for personal injuries so as to create

an underinsured motorist claim, then written notice of the proposed settlement

must be submitted to all underinsured motorist insurers that provide coverage).

The insured then submits a claim for UM benefits to the insurer alleging legal

entitlement to additional damages because the total loss was not covered by the

underinsured motorist’s policy. Here, Curran sent a demand letter to State Farm

requesting payment of the policy limits.

      As a result of submitting the notice of a claim, the insured then typically has

a duty under the insurance policy to provide medical bills, medical records, and

any other information the insurer believes will help with processing the claim. If

the UM insurer, after review of information compiled from medical bills, medical

records, and other information that is provided to substantiate an insured’s claim,

questions the severity of the injury, it may request a medical examination to aid its

review of the insured’s claim. 9 Cf. U.S. Sec. Ins. Co. v. Cimino, 754 So. 2d 697,

701 (Fla. 2000) (noting that, in a personal injury protection benefits context, a

medical examination is a potential step in the direction of litigation because the

       9. Although two doctors diagnosed Curran with RSD and she independently
attempted to make an appointment with Dr. Uricchio prior to State Farm’s request
for a medical examination and subsequent suit, State Farm argued in its briefs that
a medical examination is essential, especially in cases where an insured is claiming
a significant loss due to complications from injuries, such as RSD, which are
subjective in nature.

                                         - 11 -
insured is claiming an entitlement to benefits and the insurer is questioning the

necessity for same). Thus, a CME is typically requested to provide the insurer

additional information used to determine whether the insured is legally entitled to

recover damages after an injury is sustained and a UM claim has been submitted.

      Given this context, we reject the approach State Farm has asked this Court to

approve. Specifically, State Farm argues that the provision at issue is a condition

precedent to coverage and to suit, the breach of which constitutes a material breach

of the policy resulting in forfeiture of coverage irrespective of any showing of

prejudice to the insurer. Curran, on the other hand, argues that the provision is a

condition subsequent requiring proof of prejudice. 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 best of the

                                        - 12 -
      Pursuant to the terms of the automobile insurance policy in this case, Curran

was required to

      be examined by physicians chosen and paid by [State Farm] as often
      as we reasonably may require. A copy of the report will be sent to the
      person upon written request. The person or his or her legal
      representative if the person is dead or unable to act shall authorize us
      to obtain all medical reports and records.

Further, a section titled “Suits Against Us” provides in pertinent part that “[t]here

is no right of action against [State Farm] until all terms of this policy have been

met.” According to State Farm, the CME provision is a condition precedent to suit

and coverage because of the “Suits Against Us” provision. We disagree. As

discussed below, we conclude that a CME provision in the UM context is a post-

loss obligation of the insured and is not a condition precedent to coverage.

      First, in Custer, we held that an insured’s attendance at a medical

examination was not a condition precedent to the existence of an automobile

insurance policy that provided personal injury protection (PIP) benefits. See 62

So. 3d at 1100. The Court reasoned that medical examinations in a PIP context are

not scheduled prior to the existence of a policy or prior to an injury, but instead are

scheduled after a policy has been issued, injuries have been sustained, and the

insured has notified the insurer of a loss. Id. at 1099. We further noted that “an


applicant’s knowledge and belief. D & S Realty, Inc. v. Markel Ins. Co., 789
N.W.2d 1, 9-10 (2010).


                                         - 13 -
unreasonable failure to attend a requested medical examination may be a condition

subsequent that divests the insured’s right to receive further PIP benefits.” Id. at

1098-99. Similarly, as discussed above, compulsory medical examinations in the

UM coverage context may be requested by insurers after a policy has been issued,

an insured has sustained an accident or loss, and an insured has submitted a claim

for UM benefits.

      Second, 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, 11 considered a condition subsequent in Macias, into a condition

precedent to coverage and suit. 12 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). Further, the term “until” suggests that any cause of action filed

before compliance with all of the terms of the policy is simply premature, which

generally results in an abatement of the action. See Bierman v. Miller, 639 So. 2d

       11. State Farm sent a reservation of rights letter to Curran stating that her
failure to “assist and cooperate” with the insurer may result in a denial of coverage.

      12. Some tasks that form the duty to assist and cooperate are not necessarily
capable of being performed prior to filing an action against the insurer. For
instance, an insured’s duty to assist an insurer in making settlements and attending
and getting witnesses to attend hearings and trials are unlikely to be capable of
performance prior to trial.

                                        - 14 -
627, 628 (Fla. 3d DCA 1994) (“The proper remedy for premature litigation is an

abatement or stay of the claim for the period necessary for its maturation under the

law.” (quoting Angrand v. Fox, 552 So. 2d 1113, 1115 (Fla. 3d DCA 1989))).

      Accordingly, a CME provision in the UM coverage context is not a

condition precedent to coverage and we find that an insured’s breach of this

provision should not result in post-occurrence forfeiture of insurance coverage

without regard to prejudice. Cf. Macias, 475 So. 2d at 1217-18 (noting that a

showing of prejudice is relevant when an insured breaches a cooperation clause,

which is a condition subsequent, or a notice provision); Tiedtke v. Fidelity & Cas.

Co. of New York, 222 So. 2d 206, 209 (Fla. 1969) (adopting the view that a

showing of prejudice is relevant when considering whether an insured’s breach of

a notice provision relieves the insurer of liability).

      Having concluded that prejudice is a necessary consideration when the

insured breaches a CME provision, we also hold that the burden of pleading and

proving that issue is on State Farm. State Farm raised this issue as an affirmative

defense. “An affirmative defense is a defense which admits the cause of action,

but avoids liability, in whole or in part, by alleging an excuse, justification, or

other matter negating or limiting liability.” St. Paul Mercury Ins. Co. v. Coucher,

837 So. 2d 483, 487 (Fla. 5th DCA 2002). “[T]he plaintiff is not bound to prove

that the affirmative defense does not exist.” Custer, 62 So. 3d at 1096. Further, in



                                          - 15 -
Macias, we held that “[a] failure to cooperate is a condition subsequent and it is

proper to place the burden of showing prejudice on the insurer.” 475 So. 2d at

1218; accord Ramos v. Nw. Mut. Ins. Co., 336 So. 2d 71 (Fla. 1976) (an insurer

may not avoid liability under its policy by merely showing the violation of a clause

requiring assistance and cooperation of the insured without a further showing of

how this violation prejudiced the insurer). Accordingly, because the insurer is the

defensive pleader, it has the burden of pleading and persuasion of each element of

the defense.

      Given the UM statute’s intended purpose of protecting persons who are

legally entitled to recover damages for injuries caused by owners or operators of

uninsured or underinsured motor vehicles, our conclusion that the insurer must

plead and prove prejudice as an element of its affirmative defense fully comports

with this purpose. See Flores, 819 So. 2d at 744 (discussing the intended purpose

of the UM coverage statute). It also places the injured party in the same position as

the injured party would have been had the tortfeasor been insured. See Moore, 570

So. 2d at 293. Further, the insurer still has two remedies for such a breach: (1) it

may seek to abate the proceedings until the insured has complied with the CME

provisions; or (2) if the insured’s breach did indeed prejudice the insurer, it may

assert a breach of the CME requirement as a complete defense to coverage under

the policy upon proof of the prejudice. We now turn to State Farm’s argument that



                                        - 16 -
this Court should remand the case to the trial court for a determination regarding

prejudice.

      We agree with the Fifth District that the undisputed facts demonstrate that

State Farm was not prejudiced by Curran’s refusal to submit to a CME prior to the

initiation of litigation. Although State Farm did not advance a specific argument

that it was prejudiced below, the record demonstrates that Curran’s refusal to

submit to a CME did not prejudice State Farm in any fashion. Shortly after filing

suit, Curran offered to submit to a medical examination pursuant to Florida Rule of

Civil Procedure 1.360. State Farm, however, elected to defer the examination until

after the trial court determined whether Curran had forfeited coverage under the

policy. After the trial court found that Curran had not unreasonably refused to

attend the examination, Curran attended a CME with Dr. Uricchio, the same expert

that State Farm requested Curran see prior to litigation. Dr. Uricchio was not

called to testify as a trial witness and there is nothing in the record that indicates

the delayed CME affected the integrity of the evaluation. Thus, the record is

devoid of evidence that would suggest that Curran’s refusal to submit to a CME

prior to suit prejudiced State Farm. Accordingly, it is unnecessary to remand the

case for determination of prejudice. See Tiedtke, 222 So. 2d at 209 (unnecessary

to remand case for determination of prejudice where record amply establishes no

prejudice to insurer).



                                         - 17 -
                                   CONCLUSION

      For the reasons set forth above, we answer the restated certified question by

holding that an insured’s breach of a CME provision in an uninsured motorist

policy of insurance does not result in forfeiture of benefits unless the insurer pleads

and proves it was prejudiced as part of its affirmative defense. Accordingly, we

approve the decision of the Fifth District in State Farm Automobile Insurance Co.

v. Curran, 83 So. 3d 793 (Fla. 5th DCA 2011).

      It is so ordered.

PARIENTE and PERRY, JJ., concur.
LEWIS, J., concurs in result, with an opinion.
QUINCE, J., concurs in result.
POLSTON, C.J., dissents with an opinion in which CANADY, J. concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

LEWIS, J., concurring in result.

      While I concur with the result reached in this case, I write separately

because I believe this issue is also governed by an additional body of law other

than that expressed by the majority. Every motor vehicle liability insurer in this

State is statutorily mandated to offer uninsured motorist coverage unless the

insured has expressly rejected the coverage. See § 627.727, Fla. Stat. (2007).

When an insured seeks to recover uninsured motorist benefits from its insurance

carrier, the insured’s uninsured motorist carrier stands in the shoes of the uninsured



                                        - 18 -
motorist, thereby placing the insurer in a position adverse to the insured. Diaz-

Hernandez v. State Farm Fire & Cas. Co., 19 So. 3d 996, 999 (Fla. 3d DCA 2009).

The Legislature intended for this statutorily mandated coverage to broadly protect

innocent persons who are injured through the negligence of an uninsured motorist,

and not to benefit insurance companies or motorists who cause damage to others.

Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000); see also Salas v.

Liberty Mut. Fire Ins. Co., 272 So. 2d 1, 5 (Fla. 1972) (noting that “the intention of

the Legislature, as mirrored by the decisions of this Court, is plain to provide for

the broad protection of the citizens of this State against uninsured motorists”).

Furthermore, we have repeatedly recognized that “as a creature of statute rather

than a matter for contemplation of the parties in creating insurance policies, the

uninsured motorist protection is not susceptible to the attempts of the insurer to

limit or negate that protection.” Salas, 272 So. 2d at 5; see also Mullis v. State

Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 237-38 (Fla. 1971) (noting that

uninsured motorist coverage is “not to be ‘whittled away’ by exclusions and

exceptions”). For these reasons, provisions in uninsured motorist policies that

provide less coverage than required by the statute are void as contrary to public

policy. Young, 753 So. 2d at 83.

      Here, Curran’s policy with State Farm contained a compulsory medical

examination provision that allowed State Farm to require Curran to “be examined



                                        - 19 -
by physicians chosen and paid by [State Farm] as often as [State Farm] reasonably

may require.” No such right exists in any third-party action. As the plain language

of the provision indicates, the CME provision does not account for or protect the

interests, requests, or concerns of the insured. Rather, this provision attempts to

vest an insurer with exclusive power to require medical examinations as long as the

insurer desires medical examinations, with nothing in the provision that limits how

many medical examinations the insurer can require or under what conditions the

insurer may require an examination. See State Farm Mut. Auto. Ins. Co. v. Curran,

83 So. 3d 793, 801 (Fla. 5th DCA 2011) (noting that the CME provision in

Curran’s policy provided that it was “not necessary that State Farm agree to any

proposed condition proffered by Curran” even if the condition was reasonable from

the standpoint of the insured).

      In effect, this provision could operate to provide State Farm with unfettered

discretion to require CMEs and empower State Farm with the contractual authority

to constrict the availability of uninsured motorist benefits by precluding any action

for such benefits when the insured fails to comply with State Farm’s demands for

CMEs. See Majority op. at 4 (noting that State Farm contended “that Curran was

not entitled to coverage under the policy because she breached the CME

provision”). However, nothing in the uninsured motorist statute authorizes an

insurer to place this type of direct and substantial burden upon the insured or to



                                        - 20 -
deny coverage on the basis that the insured failed to submit to a compulsory

medical examination. Thus, this provision is not authorized by statute, and is

directly contrary to the statutory purpose of uninsured motorist coverage. See

Diaz-Hernandez, 19 So. 3d at 999-1000 (invalidating a contractual provision as

contrary to the public policy of the UM statute in part because there was “nothing

in the UM statute” that authorized the insurer to require the insured to join the

uninsured motorist in the insured’s contractual action against the insurer for UM

coverage). Accordingly, I would invalidate the compulsory examination provision

as contained in Curran’s policy with State Farm along with the asserted result as an

illegal contractual provision more restrictive than, and not supported by, the

statutorily mandated uninsured motorist coverage. See Young, 753 So. 2d at 83

(holding that “provisions in uninsured motorist policies that provide less coverage

than required by the statute are void as contrary to public policy”); see also Salas,

272 So. 2d at 5; Mullis, 252 So. 2d at 237-38.



POLSTON, C.J., dissenting.

      I respectfully dissent because the insurance policy at issue unambiguously

includes a condition precedent that was not satisfied. The policy plainly conditions

Curran’s right to sue to recover uninsured motorist (UM) benefits from State Farm

on her pre-suit submission to a compulsory medical examination (CME).



                                        - 21 -
Specifically, it requires her to “be examined by physicians chosen and paid by

[State Farm] as often as [State Farm] reasonably may require” and provides that

“[t]here is no right of action against [State Farm] until all terms of this policy have

been met.” Curran did not attend either CME that State Farm acted in good faith to

schedule despite Curran’s attempts to “unilaterally change the contract terms under

the guise of proffered conditions” for the CME. State Farm Mut. Auto. Ins. Co. v.

Curran, 83 So. 3d 793, 801-02 (Fla. 5th DCA 2011). 13

      Under these facts, though State Farm argues for a complete forfeiture of

benefits, the contract requires dismissal of Curran’s action because she had no right

to bring it. Of course, nothing in the contract prohibits Curran from submitting to

the requested CME and refiling her suit against State Farm, if she may do so within

the applicable statute of limitations period.

      However, instead of concluding that Curran’s failure to comply with the

contract precludes her from suing State Farm until such time as she satisfies the

condition precedent, the majority allows her judgment to stand over State Farm’s

argument that it has no obligation to pay benefits that Curran had no right to sue



       13. As Judge Monaco explained in his concurring opinion below, the
“rather transparent motive” for Curran’s behavior was to put State Farm “in a
position where it could not offer up the policy limits prior to suit, unless it did so
without having a medical consultation that it had confidence in. This was about as
thinly disguised a bad faith trap as is imaginable.” Curran, 83 So. 3d at 808
(Monaco, J., concurring).


                                         - 22 -
for. To reach this result, the majority imposes an unprecedented requirement that

the insurance company plead and prove that it is prejudiced by the insured’s failure

to submit to a CME. Moreover, the majority erroneously extends its holding to all

UM policies regardless of what those policies might actually say. See majority at 2

(rephrasing the certified question to apply to all UM policies without deference to

policy language specifying the consequences for failing to submit to a CME); see

also State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569-70 (Fla.

2011) (“In interpreting an insurance contract, we are bound by the plain meaning

of the contract’s text.”).

       The linchpin of the majority’s decision is its determination that a CME

provision is a condition subsequent (akin to a cooperation clause) and not a

condition precedent. Every other conclusion—who has the burden to plead and

prove compliance with the CME provision; whether prejudice to the insurance

company must result if the insured does not submit to a CME before filing suit;

and, if prejudice is required, who has the burden to plead and prove it—flows from

this determination. Cf. Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300,

303-04 (Fla. 4th DCA 1995) (“A substantial line of cases supports the rule that an

insurer need not show prejudice when the insured breaches a condition precedent

to suit. . . . On the other hand, if the provision is a [condition subsequent such as a]

cooperation clause, the burden would be on the insurer to demonstrate substantial



                                         - 23 -
prejudice before a breach would preclude recovery under the policy.”) (footnote

omitted) (citations omitted). Respectfully, the majority is incorrect on this critical

issue.

         The error originates from the majority’s definition of a condition precedent

as a condition that must be performed before a contract becomes effective. See

majority at 12. By defining a condition precedent this way, the majority implies

that every other type of condition is a condition subsequent that the insurance

company must plead and prove to avoid liability. See id. However, this is

incorrect because Florida also recognizes “a condition precedent to performance

under an existing contract.” Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th

DCA 2006); see also Black’s Law Dictionary 334 (9th ed. 2009) (defining a

“condition precedent” as “[a]n act or event, other than a lapse of time, that must

exist or occur before a duty to perform something promised arises”). Further, this

Court has consistently recognized that the party seeking to avoid a condition

precedent to the other party’s duty to perform has the burden to plead and prove its

satisfaction. See, e.g., Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla.

1985) (“The burden should be on the party seeking an avoidance of a condition

precedent.”); see also Saris v. State Farm Mut. Auto. Ins. Co., 49 So. 3d 815, 818

(Fla. 4th DCA 2010) (recognizing that the insured’s duty to “submit to a physical




                                          - 24 -
examination” is a duty that “relate[s] to the insured’s burden to establish that he is

entitled to coverage”).

      In addition to case law, treatises recognize that there are conditions

precedent to the right to sue to recover contract benefits, not just to the contract’s

existence. See, e.g., Lee R. Russ & Thomas F. Segalla, Couch on Insurance §

196:23 (3d ed. 2012) (addressing the consequences of failing to comply with

“condition[s] precedent to recovery or to suit”). For instance, one insurance

treatise has explained that “[t]he CME requirement” at issue here “is analogous to

the requirement for an examination under oath and is deemed a condition

precedent to suit and to the recovery of benefits under the policy where the policy

so provides” through a no-action provision. 2 Automobile Liability Insurance §

26:17 (4th ed. 2013) (emphasis added). See also 8-31 Corbin on Contracts § 31.1

(2012) (explaining that a no-action provision is “[a] very common method” of

creating a condition precedent to suit for recovery of contract benefits); Robert H.

Jerry, II & Douglas R. Richmond, Understanding Insurance Law 589 (5th ed.

2012) (“The insured’s submission to an examination under oath when requested by

an insurer is a valid condition precedent to coverage.”).

      Here, by virtue of the contract’s plain language, Curran’s submission to a

CME was a condition precedent to her right to sue for UM benefits and, as a

necessary corollary, a prerequisite to State Farm’s duty to provide coverage under



                                         - 25 -
the policy by paying those benefits. See S. Home Ins. Co. v. Putnal, 49 So. 922,

932 (Fla. 1909) (recognizing that an insured’s refusal to submit to an examination

under oath required by a fire insurance policy “will preclude the insured from

recovering upon the policy, where it provides that no suit can be maintained until

after a compliance with such condition”); Shaw v. State Farm Fire & Cas. Co., 37

So. 3d 329, 331 (Fla. 5th DCA 2010) (“It is undisputed that a provision in an

insurance policy that requires the insured to submit to an [examination under oath]

qualifies as a condition precedent to recovery of policy benefits.”); Starling v.

Allstate Floridian Ins. Co., 956 So. 2d 511, 513-14 (Fla. 5th DCA 2007) (barring

recovery under a property insurance policy because the insured failed to submit a

proof-of-loss form, which was a “condition precedent to maintaining suit”); see

also 20 John A. Appleman & Jean Appleman, Insurance Law and Practice §

11416 (2013) (“A plaintiff must, in order to recover under a policy, plead and

prove the performance of all conditions precedent to recovery. . . . and, if there is a

condition precedent, the party in whose favor the condition exists is not liable to an

action until that condition has been met.”) (footnote omitted).

      Therefore, under the plain language of the policy, any time before filing this

suit, Curran could have submitted to the requested CME. However, by filing suit

without satisfying this condition (or pleading and proving facts excusing her failure

to do so), Curran discharged State Farm’s obligation to perform under the contract



                                         - 26 -
(at least with respect to this action). See Restatement (Second) of Contracts § 225

(1981) (“Performance of a duty subject to a condition cannot become due unless

the condition occurs . . . . [T]he non-occurrence of a condition discharges the duty

when the condition can no longer occur.”); see also Kinman v. State Farm Mut.

Auto. Ins. Co., 411 F. App’x 261, 261 (11th Cir. 2011) (concluding the trial court

did not err by finding the insured was “not entitled to coverage under the uninsured

motorist provision” because the “policy required him to submit to the [medical

examination] and he unreasonably refused to do so”); Orozco v. State Farm Mut.

Auto. Ins. Co., 360 F. Supp. 223, 224 & n.3 (S.D. Fla. 1972) (concluding a UM

policy’s physical examination requirement was a “condition[] precedent to the

imposition of liability upon the [insurer]” where the policy contained a no-action

clause prohibiting suit “unless, as a condition precedent thereto,” the insured fully

complied with the policy’s terms).

      Contrary to the majority’s suggestion otherwise, Curran’s duty to submit to a

CME is not the same as the duty to cooperate that we have previously held is a

condition subsequent. See majority at 15-16. First, and most importantly,

Curran’s policy says these duties are different because it addresses her duty to

“cooperate” and “assist” in “making settlements[,] securing and giving evidence[,

and] attending and getting witnesses to attend hearings and trials” separately from

her duty to submit to a CME. Further, a duty to cooperate with the insurance



                                        - 27 -
company while litigation is pending is markedly different from a CME requirement

designed to give the insurance company the opportunity to investigate a claim and,

if it is meritorious, pay benefits without resort to litigation. Finally, the majority’s

concern that recognizing the CME requirement as a condition precedent would,

because of the no-action provision, turn every other contractual duty into a

condition precedent is unfounded. See majority at 14 & n.12. If a duty is

incapable of being performed before suit is filed, its performance cannot be a

condition precedent to suit. However, here, submission to the CME clearly could

and should have occurred presuit, independent of Curran’s duty to cooperate

during litigation. See Soronson v. State Farm Fla. Ins. Co., 96 So. 3d 949, 952

(Fla. 4th DCA 2012) (using a plain language analysis to conclude that an insurance

policy’s notice and proof-of-loss requirements were conditions precedent to suit,

not cooperation clauses).

      Because the CME provision is a condition precedent, prejudice to State

Farm as a result of its breach is immaterial, and the correct result is that no action

lies against State Farm as the contract provides. See Goldman, 660 So. 2d at 303

(“[A]n insurer need not show prejudice when the insured breaches a condition

precedent to suit.”); see also Lee R. Russ & Thomas F. Segalla, Couch on

Insurance § 196:2 (3d ed. 2012) (“[B]reach of a true condition precedent bars

recovery without regard to prejudice.”) (citing Goldman, 660 So. 2d at 300); 31A



                                         - 28 -
Fla. Jur. 2d Insurance § 3233 (2013) (“Policy provisions requiring insureds to

submit to an examination under oath (EUO) are conditions precedent to a suit,

rather than cooperation clauses, and thus, a failure to comply precludes an action

on the policy by the insured regardless of a showing of prejudice by the insurer.

The refusal of the insured to submit to an EUO when required to do so is also a

material breach of the policy, which will justify the insurer’s denial of recovery.”)

(footnotes omitted).

      Several courts have prevented plaintiffs who failed to submit to the presuit

CMEs required by their insurance policies from recovering UM benefits. For

example, the Third District held that an insured who filed suit without submitting

to a medical examination that was “a condition precedent to coverage” could not

maintain her action for UM benefits regardless of whether her failure to submit to

the examination prejudiced the insurance company. De Ferrari v. Gov’t Emps. Ins.

Co., 613 So. 2d 101, 103 (Fla. 3d DCA 1993). Similarly, the Fourth District held

that an examination under oath requirement was “a condition precedent to suit”

under a homeowner’s policy and that the insured’s failure to submit to the

examination before filing suit “preclude[d] an action on the policy regardless of a

showing of prejudice by the insurer.” Goldman, 660 So. 2d at 306. Also, the

District Court for the Northern District of Florida concluded that an insured

materially breached a fire insurance policy by filing suit without submitting to a



                                        - 29 -
required examination under oath. Laine v. Allstate Ins. Co., 355 F. Supp. 2d 1303,

1304 (N.D. Fla. 2005). In granting summary judgment for the insurance company,

the federal court rejected the argument that an insured’s failure to appear for an

examination excuses the insurance company’s obligation to pay benefits only if it

prejudiced the insurance company, concluding that argument is “subject to

considerable doubt” under Florida law, which is concerned with the “materiality of

the breach, not prejudice.” Id. at 1306 (citing Goldman, 660 So. 2d 300; Stringer

v. Fireman’s Fund Ins. Co., 622 So. 2d 145 (Fla. 3d DCA 1993); De Ferrari, 613

So. 2d 101). 14

      In this case, I reject State Farm’s argument for a total forfeiture of benefits

based on the plain language of the policy. Specifically, the policy provides that

Curran has “no right of action” against State Farm “until” the CME requirement is

satisfied. Therefore, because Curran sued without first submitting to the requested

CME, I would require dismissal. Cf. Clark v. Sarasota Cnty. Pub. Hosp. Bd., 65 F.



        14. The Fifth District acknowledged conflict between the decision on
review and Goldman and De Ferrari. See Curran, 83 So. 3d at 807. However, the
majority elected not to address the issue. See majority at 8 n.8. In doing so, it
ignored decisions supporting a contrary result, one of which—De Ferrari—
expressly and directly conflicts with the decision on review. See 2 Automobile
Liability Insurance § 26:17 (4th ed. 2013) (recognizing that the Fifth District’s
decision in Curran “depart[s] from the rule” that a “CME requirement . . . is
deemed a condition precedent to suit and to the recovery of benefits under the
policy where the policy so provides [and it] does not require the insurer to show
that it was prejudiced by the breach”) (footnotes omitted).


                                        - 30 -
Supp. 2d 1308, 1310, 1312 (M.D. Fla. 1998) (recognizing that Florida’s statutory

medical malpractice presuit requirements are conditions precedent to suit and that,

under Florida law, claims filed absent compliance with these requirements must be

dismissed with or without prejudice, depending on whether the defects can be

cured before the statute of limitations runs).

      Instead of enforcing the contract’s plain language, the majority relies on this

Court’s decisions in Macias, 475 So. 2d 1216, and Custer Medical Center v. United

Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010), to hold that compliance

with any CME requirement in any UM policy is a condition subsequent and,

therefore, any insured who files suit without first submitting to a CME is precluded

from recovering benefits only where the insurance company pleads and proves

prejudice. See majority at 13-15, 18. Respectfully, neither decision compels nor

supports the majority’s holding.

      In Macias, this Court held that a provision in a PIP policy requiring the

insured to give notice of an accident was a condition precedent to a claim instead

of a condition subsequent. 475 So. 2d at 1218. We explained that, under our

precedent regarding notice provisions, “[i]f the insured breaches the notice

provision, prejudice to the insurer will be presumed, but may be rebutted by a

showing that the insurer has not been prejudiced by the lack of notice.” Id. (citing

Nat’l Gypsum Co. v. Travelers Indem. Co., 417 So. 2d 254 (Fla. 1982); Tiedtke v.



                                         - 31 -
Fid. & Cas. Co. of N.Y., 222 So. 2d 206 (Fla. 1969)). Therefore, we concluded

that “[t]he burden should be on the insured” as “the party seeking an avoidance of

a condition precedent” to establish “lack of prejudice where the insurer has been

deprived of the opportunity to investigate the facts and to examine the insured.”

Id.

      While Macias says that its holding “should apply to claims under a PIP

policy just as well as to claims under other policies,” Macias involved the breach

of a notice provision. Id. Accordingly, our district courts have expressly declined

to extend Macias to breaches of presuit examination requirements serving different

purposes than notice provisions. See De Ferrari, 613 So. 2d at 103 (“[P]rejudice is

not at issue when an insurer’s reasonable request for [a medical examination] is

refused by an insured. The Macias case in no way created a new duty to establish

prejudice, where none previously existed.”); see also Goldman, 660 So. 2d at 304,

306 (holding that an examination under oath provision was “a condition precedent

to suit and that [the insured’s] noncompliance precludes an action on the policy

regardless of a showing of prejudice by the insurer” after noting that Macias did

not decide this issue).

      However, even if Macias applied to the breach of an examination provision,

thereby making prejudice an issue, it still would not support the majority’s decision

to place the burden of pleading and proving prejudice on the insurance company.



                                       - 32 -
As the Fourth District recognized in Goldman, “if prejudice were to be considered,

the burden would fall on the insured to prove no prejudice to the insurer.” 660 So.

2d at 305 n.8 (citing Macias, 475 So. 2d 1216); see also Laine, 355 F. Supp. 2d at

1306 (recognizing that “even under the most favorable view of [Florida] law,”

Macias would place the burden on the insured “to establish lack of prejudice”).

Accordingly, Macias does not justify the majority’s decision.

      Custer also does not support the majority’s holding making the CME

requirement a condition subsequent and placing the burden on the insurance

company to plead and prove prejudice. In Custer, 62 So. 3d at 1089, an insurance

company refused to pay PIP benefits when its insured failed to appear for a

medical examination the company scheduled after the insured completed all

treatment for which PIP benefits were requested. The governing statute provided

that the insurance company is “no longer liable for subsequent personal injury

protection benefits” if “a person unreasonably refuses to submit to an

examination.” Id. at 1090 (quoting § 672.736(7)(b), Fla. Stat. (2001)). We

explained that, under the PIP statute, “[a]ttendance at a medical examination may

be a condition precedent to the payment of subsequent PIP benefits or, perhaps

more accurately, an ‘unreasonable’ failure to attend a requested medical

examination may be a condition subsequent that divests the insured’s right to

receive further subsequent PIP benefits.” Id. at 1098-99. Therefore, we noted in



                                       - 33 -
dicta that to avoid liability for subsequent PIP benefits (which were not at issue in

Custer because all treatment occurred before the examination was requested), the

insurance company must prove that the insured unreasonably refused to attend the

examination. Id. at 1100.

      Unlike the PIP statute in Custer, neither the UM statute nor Curran’s policy

requires proof that Curran unreasonably refused to submit to a CME. Likewise,

Custer’s dicta concerning the burden of proof in the PIP context does not apply

where the parties are litigating over uninsured motorist benefits. Cf. Custer, 62 So.

3d at 1099 (finding the Third District’s decision in De Ferrari “inapposite” because

it pertained to “uninsured motorist benefits, and did not address PIP coverage”).

      Accordingly, neither Macias nor Custer provides a basis for this Court to

condition enforcement of the parties’ contract on the insurance company’s ability

to prove prejudice. 15 Moreover, by moving beyond the facts of this case to adopt a

general rule applicable to all UM policies that provides no deference for what those

policies might actually say, the majority contravenes law requiring courts to



       15. Even if I agreed with the majority’s new prejudice rule, I would
disagree with its conclusion that the facts preclude a finding of prejudice to State
Farm. See majority at 17. The fact that Curran filed suit without submitting to the
CME deprived State Farm of its right to investigate and evaluate Curran’s injuries
prior to litigation and unjustifiably exposed State Farm to a bad-faith claim. This
is sufficient to prove prejudice. See Laine, 355 F. Supp. 2d at 1306 n.2
(“Depriving the insurer of th[e] opportunity [to conduct an examination under
oath] is sufficient prejudice, even if, indeed, prejudice is required.”).


                                        - 34 -
enforce the plain language of unambiguous contracts. See Orozco, 360 F. Supp. at

225 (“[T]he insurance policy is the contract between the parties and . . . the

provisions of that contract which are clear and unambiguous and which are neither

illegal by statute nor by reason of their being against public policy, should be

enforced by the courts. The courts may not rewrite for the parties insurance

contracts which are clear and unambiguous.”). Therefore, I respectfully dissent.

      Because the contract at issue specifies the consequences for Curran’s breach,

I would rephrase the certified question as follows: Where an insurance policy

requires the insured to submit to a CME prior to filing suit against the insurance

company, does an insured who inexcusably failed to submit to a CME have a right

of action for UM benefits against the insurance company? I would answer the

rephrased question in the negative and quash the Fifth District’s decision in favor

of the insured.

CANADY, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Fifth District – Case No. 5D09-1488

      (Brevard County)

Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami, Florida; and The
Turner Law Firm, LLC, Sarasota, Florida,

      for Petitioner



                                        - 35 -
Gary M. Farmer, Sr., of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L.,
Fort Lauderdale, Florida; O. John Alpizar, Palm Bay, Florida; and Marjorie
Gadarian Graham, Palm Beach Gardens, Florida,

      for Respondent

Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach,
Florida,

      for Amicus Curiae Florida Justice Association




                                     - 36 -
