Consequence of Insured's Failure to Attend at a Medical Examination

In Griffin v. Stonewall Insurance Co., 346 So. 2d 97 (Fla. 3d DCA 1977), 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. See 346 So. 2d at 98. Goldman v. State Farm General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995) 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. See 660 So. 2d at 301. The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms. Consequently, Custer filed a motion for rehearing or rehearing en banc on the grounds that: (1) the decision rested on inapplicable authority (i.e., the distinction in the earlier statute at issue in Griffin); (2) the district court shifted the burden to the plaintiff to disprove the defendant's affirmative defense; (3) the district court exercised certiorari jurisdiction despite United's failure to demonstrate any departure from the essential requirements of law.