Universal X Rays Corp., a/a/o Miguel Larosa-Ferrer v. United Automobile Insurance Company

Summary

The Third District Court of Appeal of Florida affirmed summary judgment for United Automobile Insurance Company in a dispute over Personal Injury Protection benefits. The court held that the insured's sworn examination-under-oath admission that he misstated his address on the policy application was proper summary-judgment evidence because it could be presented in admissible form at trial. The court also rejected the argument that the examination was inadmissible under section 92.33, Florida Statutes.

Holdings

1. An out-of-court statement may be considered at summary judgment when it can be presented in admissible form at trial. The insured's examination under oath was proper summary judgment evidence because his admission could be presented through his direct testimony at trial.
2. The examination under oath was not inadmissible under section 92.33. The court assumed without deciding that the statute applied, because there was no allegation that United Automobile refused to furnish the statement upon request and it was undisputed that Universal received a copy.
3. Summary judgment for United Automobile was proper because the admissible and unrebutted examination-under-oath evidence established that the insured materially misrepresented his address on the policy application.

Questions Presented

1. Whether the insured's examination under oath was inadmissible summary judgment evidence because it was hearsay.
2. Whether the examination under oath was inadmissible under section 92.33, Florida Statutes, because a copy was not provided to the insured.
3. Whether summary judgment was proper on United Automobile's affirmative defense of material misrepresentation when the examination under oath was admissible and unrebutted.

Disposition

affirmed