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De Leon v. Great American Assurance Co., 2011 WL 4824135 (Fla. 3d DCA October 12, 2011).
Florida’s Third District Court of Appeal reversed the trial court’s denial of the insured’s motion for attorney fees, holding the insured is entitled to an award of fees under section 627.428, Florida Statutes (2008) because the insurer wrongfully caused it’s insured to resort to litigation. In a strongly worded opinion, the Third District took issue with the “unwarranted” and “intrusive” questions asked of the insured during his examination under oath (“EUO”) in connection with his claim under his auto policy for the loss of tires stolen from his truck. Because of the “improper” questioning, the Third District agreed with the insured that litigation was necessary, and not premature – even though the EUO was not yet completed at the time suit was filed – and that the insured was therefore entitled to attorney fees.
Great American’s insured, Jose De Leon, was the owner of a 2000 Freightliner, an eighteen-wheeler commercial truck. The truck was stolen from the premises of an interstate trucking company where the truck was parked. The police recovered the truck the following day in damaged condition and missing nine large, valuable tires. The original tires had been replaced with inferior tires. The insured filed a claim with his auto insurer, Great American, for the loss of the tires valued at approximately $8000.
Great American’s counsel conducted an EUO of Mr. De Leon related to his theft claim. At his initial EUO, Mr. De Leon refused to answer certain questions related to a previous criminal conviction and his personal life. Mr. De Leon advised counsel at the EUO that “we’re not going to get anywhere so I’m leaving and we’ll see you in court.”
After the insured file suit, the trial court abated the action and ordered completion of the EUO. The same attorney for Great American conducted the second EUO which lasted over seven hours.
Great American eventually settled with the insured for the full amount claimed. The insured moved for an award of attorney’s fees under section 627.428, Florida Statutes (2008), which was denied by the trial court.
The insured appealed the denial of fees to the Third District Court of Appeal. Great American argued that the trial court’s ruling should be affirmed because the suit was unnecessary and premature and that the insured’s refusal to complete the EUO and provide requested documents prevented Great American from exercising its contractual right to fully investigate the claim.
The Third District stated Great American “decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it.” The court quoted extensively from the EUO transcript, noting that counsel insisted on probing into the details of a prior, “totally unrelated” criminal conviction, and the person with whom the insured was living. The court stated the insured was completely justified in declining to answer most of the questions posed at the EUO as the questions “had nothing to do with the merits of the claim.” Based on the transcript of the EUO, the Third District found it was “obvious” that the insured would not be paid unless he sued the company.
The Third District’s opinion could be re-titled “How Not to Conduct a EUO.” In fact, the transcript of the EUO is quoted as a “never-to-be-emulated” model of its kind. The concurring opinion further chastises the insurer’s counsel for “over-lawyering” in taking a seven-hour sworn statement of a single individual in an $8000 tire loss claim.