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Fifth DCA Requires Showing Of Prejudice By Insurer Asserting Affirmative Defense Of Insured’s Failure To Attend CME

December 2, 2011

State Farm Mut. Auto. Ins. Co. v. Curran, 2011 WL 6003288 (Fla. 5th DCA Dec. 2, 2011).


The appellate court rejected well established Florida case law to hold an insured’s duty to attend a compulsory medical exam (“CME”), pursuant to the underinsured/uninsured motorist (“UM”) provisions of an automobile insurance policy, constitutes a “condition subsequent,” which requires the insurer to show prejudice in order to prevail on an affirmative defense of breach of contract based on the insured’s failure to attend the CME.


Curran made a claim on her UM carrier, State Farm, for policy limits. Curran and State Farm exchanged letters in which State Farm requested that she submit to a CME. Curran filed suit without submitting to the CME. State Farm asserted an affirmative defense that there was no coverage due to Curran’s breach of contract for failure to submit to the CME. The trial court entered judgment in favor of Curran holding as a matter of law that Curran did not fail to appear for the CME. State Farm appealed the judgment.

Critical Issues

The issue on appeal was whether the trial court erred in finding that Curran’s failure to attend the CME was not a breach of the insurance contract.


The Court held that Curran breached the insurance contract by failing to attend the CME as required and by filing suit before complying with the CME provision in the contract. The Court also held that the breach did not defeat coverage because the insurer was not prejudiced by the breach.


The Court relied on a Florida Supreme Court case that held an insured does not automatically forfeit insurance benefits for failing to timely report a claim or breaching the duty to cooperate unless the insurer is prejudiced by the failures. The appellate court analogized the insured’s failure to submit to the CME to a failure to cooperate with the insurance company’s investigation. The appellate court also determined that the CME provision is a condition subsequent, thus placing the burden on the insurer to prove prejudice.

Impact of Decision

The Court rejected a well-settled law that held that refusal to attend an EUO or an IME is a breach of the contract as a matter of law and no showing of prejudice is required. Based on this decision, the insurer must now also plead and later prove the insured’s breach of failure to submit to a CME caused prejudice to the insurer.

The Florida Supreme Court has granted review of this decision.