Third District Court of Appeal State of Florida
Opinion filed October 8, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0777 Lower Tribunal No. 21-26593-SP-05 ________________
Universal X Rays, Corp., a/a/o Miguel Larosa-Ferrer, Appellant,
vs.
United Automobile Insurance Company, Appellee.
An Appeal from the County Court for Miami-Dade County, Miesha Darrough, Judge.
Douglas H. Stein, P.A., and Douglas H. Stein, for appellant.
Cole, Scott & Kissane, P.A., and Michael A. Rosenberg and Amanda H. Wasserman, for appellee.
Before LINDSEY, GORDO, and GOODEN, JJ.
LINDSEY, J. Appellant (Plaintiff below), Universal X Rays, Corp., as assignee of
Miguel Larosa-Ferrer (the “Insured”), appeals from a Final Summary
Judgment entered in favor of Appellee (Defendant below), United
Automobile Insurance Company in the underlying action for Personal Injury
Protection benefits. The trial court determined that there was no genuine
dispute that the Insured misrepresented his address on his Policy
Application. And, consequently, there was no coverage. Because the
unrebutted summary judgment evidence established that the Insured made
a material misrepresentation, we affirm.
I. BACKGROUND
In July 2020, the Insured was involved in a motor vehicle accident.
Universal provided medical treatment, and the Insured assigned all rights
under his United Auto Insurance Policy to Universal.
As required by the Policy, United Auto took the Insured’s Examination
Under Oath (“EUO”). See § 627.736(6)(g), Fla. Stat. (2025) (“An insured
seeking benefits . . . must comply with the terms of the policy, which include,
but are not limited to, submitting to an examination under oath.”). The EUO
was conducted via videoconference before a court reporter and notary
public. The Insured’s attorney and an interpreter were also present. During
the EUO, the Insured admitted that he moved to a new address shortly
2 before signing the Policy Application. The address on the Policy Application
was the Insured’s old address, not his current address.
About two months after the EUO, United Auto sent the Insured a letter
disclaiming coverage because he had misrepresented his primary residence
on the Policy Application. See § 627.409(1), Fla. Stat. (2025) (“[A]
misrepresentation, omission, concealment of fact, or incorrect statement
may prevent recovery under the contract or policy . . . .”). The letter further
stated that “[h]ad we been aware of the proper information regarding the . . .
garaging address, we would have either not have issued the policy or we
would have issued it at a substantially higher premium.” In December 2020,
United Auto sent the Insured a Notice of Rescission and a check returning
his insurance premium.
At the end of December 2020, Universal sent United Auto a demand
letter. United Auto responded by informing Universal that coverage had
been denied due to a material misrepresentation in the Policy Application.
In January 2021, Universal sued for breach of the Policy. United Auto raised
material misrepresentation as an affirmative defense.
In November 2022, United Auto moved for summary judgment on its
affirmative defense. In support, United Auto relied on the Insured’s EUO,
which indicated that his current address was not the address provided in the
3 Policy Application. 1 In response, Universal argued that no admissible
evidence established a material misrepresentation. Universal’s only
summary judgment evidence was a deposition transcript of United Auto’s
litigation adjuster. Nothing in this deposition disputes the Insured’s EUO.
At the hearing on its Motion for Summary Judgment, United Auto
argued it was undisputed that the Insured misrepresented his address on the
Policy Application. Universal argued that the Insured’s EUO was
inadmissible hearsay and was not provided to the Insured as required by
section 92.33, Florida Statutes (2025). The trial court determined that the
EUO was admissible summary judgment evidence and that no violation of
section 92.33 had occurred. Because Universal failed to otherwise contest
the Insured’s EUO, the trial court entered Final Summary Judgment for
United Auto.
Following the denial of its motion for rehearing, Universal timely
appealed.
II. ANALYSIS
1 United Auto also attached and relied on the Policy and Application; its underwriting supervisor’s affidavit; its litigation adjuster’s affidavit; the letter disclaiming coverage; the Notice of Rescission and returned checks; and its response to Universal’s demand letter.
4 On appeal, Universal does not point to any summary judgment
evidence disputing the Insured’s EUO. Instead, Universal argues that none
of United Auto’s summary judgment evidence was admissible. Though
Universal addresses every document United Auto submitted in support of
summary judgment, we need only address the dispositive EUO. Universal
argues that the EUO was inadmissible summary judgment evidence for two
reasons: (1) it was hearsay, and (2) a copy was never provided to the Insured
as required by section 92.33. We address these two arguments in turn.
1. Hearsay
Universal argues that the Insured’s EUO is inadmissible summary
judgment evidence because it is hearsay. That is, it is an out-of-court
statement, and it was offered to prove the truth of the matter asserted. See
§ 90.801(1)(b), Fla. Stat. (2025) (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”).
We generally review evidentiary rulings under the abuse of discretion
standard; however, to the extent a trial court’s ruling is based on the
interpretation of legal authorities, our review is de novo. See, e.g., Bank of
New York Mellon v. Garcia, 254 So. 3d 565, 567 (Fla. 3d DCA 2018).
5 In 2021, Florida adopted the federal summary judgment standard. See
Fla. R. Civ. P. 1.510(a) (“The summary judgment standard provided for in
this rule shall be construed and applied in accordance with the federal
summary judgment standard.”); In re Amends. to Fla. R. of Civ. P. 1.510, 317
So. 3d 72 (Fla. 2021). In doing so, the Florida Supreme Court “largely
adopt[ed] the text of federal rule 56 as a replacement for rule 1.510.” In re
Amends., 317 So. 3d at 74. This provides Florida litigants and judges with
“the full benefit of the large body of case law interpreting and applying federal
rule 56.” Id. at 74-75.
Summary judgment is a method “to test the sufficiency of the evidence
to determine if there is sufficient evidence at issue to justify a trial or formal
hearing on the issues raised in the pleadings.” Fuentes v. Link, 394 So. 3d
684, 686 (Fla. 3d DCA 2024) (quoting The Florida Bar v. Greene, 926 So. 2d
1195, 1200 (Fla. 2006)). Because summary judgment is a pretrial
proceeding, it is no surprise that summary judgment evidence often takes
the form of an out-of-court statement. Indeed, Rule 1.510(c)(1)(A) lists
various out-of-court materials that can be used in support of summary
judgment, including “depositions, documents, electronically stored
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Third District Court of Appeal State of Florida
Opinion filed October 8, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0777 Lower Tribunal No. 21-26593-SP-05 ________________
Universal X Rays, Corp., a/a/o Miguel Larosa-Ferrer, Appellant,
vs.
United Automobile Insurance Company, Appellee.
An Appeal from the County Court for Miami-Dade County, Miesha Darrough, Judge.
Douglas H. Stein, P.A., and Douglas H. Stein, for appellant.
Cole, Scott & Kissane, P.A., and Michael A. Rosenberg and Amanda H. Wasserman, for appellee.
Before LINDSEY, GORDO, and GOODEN, JJ.
LINDSEY, J. Appellant (Plaintiff below), Universal X Rays, Corp., as assignee of
Miguel Larosa-Ferrer (the “Insured”), appeals from a Final Summary
Judgment entered in favor of Appellee (Defendant below), United
Automobile Insurance Company in the underlying action for Personal Injury
Protection benefits. The trial court determined that there was no genuine
dispute that the Insured misrepresented his address on his Policy
Application. And, consequently, there was no coverage. Because the
unrebutted summary judgment evidence established that the Insured made
a material misrepresentation, we affirm.
I. BACKGROUND
In July 2020, the Insured was involved in a motor vehicle accident.
Universal provided medical treatment, and the Insured assigned all rights
under his United Auto Insurance Policy to Universal.
As required by the Policy, United Auto took the Insured’s Examination
Under Oath (“EUO”). See § 627.736(6)(g), Fla. Stat. (2025) (“An insured
seeking benefits . . . must comply with the terms of the policy, which include,
but are not limited to, submitting to an examination under oath.”). The EUO
was conducted via videoconference before a court reporter and notary
public. The Insured’s attorney and an interpreter were also present. During
the EUO, the Insured admitted that he moved to a new address shortly
2 before signing the Policy Application. The address on the Policy Application
was the Insured’s old address, not his current address.
About two months after the EUO, United Auto sent the Insured a letter
disclaiming coverage because he had misrepresented his primary residence
on the Policy Application. See § 627.409(1), Fla. Stat. (2025) (“[A]
misrepresentation, omission, concealment of fact, or incorrect statement
may prevent recovery under the contract or policy . . . .”). The letter further
stated that “[h]ad we been aware of the proper information regarding the . . .
garaging address, we would have either not have issued the policy or we
would have issued it at a substantially higher premium.” In December 2020,
United Auto sent the Insured a Notice of Rescission and a check returning
his insurance premium.
At the end of December 2020, Universal sent United Auto a demand
letter. United Auto responded by informing Universal that coverage had
been denied due to a material misrepresentation in the Policy Application.
In January 2021, Universal sued for breach of the Policy. United Auto raised
material misrepresentation as an affirmative defense.
In November 2022, United Auto moved for summary judgment on its
affirmative defense. In support, United Auto relied on the Insured’s EUO,
which indicated that his current address was not the address provided in the
3 Policy Application. 1 In response, Universal argued that no admissible
evidence established a material misrepresentation. Universal’s only
summary judgment evidence was a deposition transcript of United Auto’s
litigation adjuster. Nothing in this deposition disputes the Insured’s EUO.
At the hearing on its Motion for Summary Judgment, United Auto
argued it was undisputed that the Insured misrepresented his address on the
Policy Application. Universal argued that the Insured’s EUO was
inadmissible hearsay and was not provided to the Insured as required by
section 92.33, Florida Statutes (2025). The trial court determined that the
EUO was admissible summary judgment evidence and that no violation of
section 92.33 had occurred. Because Universal failed to otherwise contest
the Insured’s EUO, the trial court entered Final Summary Judgment for
United Auto.
Following the denial of its motion for rehearing, Universal timely
appealed.
II. ANALYSIS
1 United Auto also attached and relied on the Policy and Application; its underwriting supervisor’s affidavit; its litigation adjuster’s affidavit; the letter disclaiming coverage; the Notice of Rescission and returned checks; and its response to Universal’s demand letter.
4 On appeal, Universal does not point to any summary judgment
evidence disputing the Insured’s EUO. Instead, Universal argues that none
of United Auto’s summary judgment evidence was admissible. Though
Universal addresses every document United Auto submitted in support of
summary judgment, we need only address the dispositive EUO. Universal
argues that the EUO was inadmissible summary judgment evidence for two
reasons: (1) it was hearsay, and (2) a copy was never provided to the Insured
as required by section 92.33. We address these two arguments in turn.
1. Hearsay
Universal argues that the Insured’s EUO is inadmissible summary
judgment evidence because it is hearsay. That is, it is an out-of-court
statement, and it was offered to prove the truth of the matter asserted. See
§ 90.801(1)(b), Fla. Stat. (2025) (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”).
We generally review evidentiary rulings under the abuse of discretion
standard; however, to the extent a trial court’s ruling is based on the
interpretation of legal authorities, our review is de novo. See, e.g., Bank of
New York Mellon v. Garcia, 254 So. 3d 565, 567 (Fla. 3d DCA 2018).
5 In 2021, Florida adopted the federal summary judgment standard. See
Fla. R. Civ. P. 1.510(a) (“The summary judgment standard provided for in
this rule shall be construed and applied in accordance with the federal
summary judgment standard.”); In re Amends. to Fla. R. of Civ. P. 1.510, 317
So. 3d 72 (Fla. 2021). In doing so, the Florida Supreme Court “largely
adopt[ed] the text of federal rule 56 as a replacement for rule 1.510.” In re
Amends., 317 So. 3d at 74. This provides Florida litigants and judges with
“the full benefit of the large body of case law interpreting and applying federal
rule 56.” Id. at 74-75.
Summary judgment is a method “to test the sufficiency of the evidence
to determine if there is sufficient evidence at issue to justify a trial or formal
hearing on the issues raised in the pleadings.” Fuentes v. Link, 394 So. 3d
684, 686 (Fla. 3d DCA 2024) (quoting The Florida Bar v. Greene, 926 So. 2d
1195, 1200 (Fla. 2006)). Because summary judgment is a pretrial
proceeding, it is no surprise that summary judgment evidence often takes
the form of an out-of-court statement. Indeed, Rule 1.510(c)(1)(A) lists
various out-of-court materials that can be used in support of summary
judgment, including “depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
6 purposes of the motion only), admissions, interrogatory answers, or other
materials[.]”
We therefore reject Universal’s argument that the Insured’s EUO is
inadmissible summary judgment evidence simply because it was made
outside of court and offered for the truth of the matter asserted. Under
Florida’s summary judgment standard, which mirrors the federal standard,
hearsay may be used so long as it can be presented in admissible form at
trial. See Fla. R. Civ. P. 1.510(c)(2) (“A party may object that the material
cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.”). 2
As the Eleventh Circuit Court of Appeals has explained:
“[A] district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” [Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999)].
The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.
2 To be clear, this does not mean that inadmissible hearsay contained within the material supporting summary judgment is admissible. See Sentz v. Bonefish Grill, LLC, 379 So. 3d 1, 3 (Fla. 4th DCA 2023) (“Inadmissible hearsay may not be used to defeat a motion for summary judgment when the hearsay ‘will not be available in admissible form at trial.’”) (quoting McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996), aff’d sub nom., McMillian v. Monroe County, 520 U.S. 781 (1997)).
7 Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012); see
also STEVEN S. GENSLER, 2 FEDERAL RULES OF CIVIL PROCEDURE, RULES AND
COMMENTARY § 56:41 (2025) (“The relevant question is not the admissibility
of the evidence’s current form but whether it can be presented in an
admissible form at trial.”).
Here, the Insured’s admitted misrepresentation in his EUO could be
reduced to admissible form if the Insured were to testify directly at trial. It is
therefore proper summary judgment evidence. Moreover, because
Universal did not offer any evidence of its own to dispute this, the trial court
did not err in granting summary judgment based on the Insured’s EUO. See
Fla. R. Civ. P. 1.510(e)(3).
2. Section 92.33
Universal also argues the EUO was inadmissible because a copy was
not provided to the Insured in violation of section 92.33. Under the statute,
“[e]very person who shall take a written statement by any injured person with
respect to any accident or with respect to any injury to person or property
shall, at the time of taking such statement, furnish to the person making such
statement a true and complete copy thereof.” § 92.33, Fla. Stat. (2025). The
statute further explains that such a written statement is inadmissible if a copy
8 was not provided to the declarant at the time it was made or if a copy was
not provided when requested:
No written statement by an injured person shall be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof, or, if it shall be made to appear that thereafter a person having possession of such statement refused, upon request of the person who made the statement or his or her personal representatives, to furnish him or her a true and complete copy thereof.
Id. (emphasis added)
We note that the Insured’s EUO was not merely a statement taken by
United Auto. It was a sworn statement by the Insured, with counsel present,
transcribed by a court reporter and notary public. Universal has cited no
authority holding that such an EUO is a written statement under section
92.33. But assuming, arguendo, that this section applies, there are no
allegations that United Auto refused to furnish a copy of the statement to the
Insured when requested. And it is undisputed that Universal received a copy.
We therefore reject Universal’s argument that the Insured’s EUO was
inadmissible under section 92.33.
III. CONCLUSION
9 Because the Insured’s EUO was admissible summary judgment
evidence and Universal failed to present any counter evidence to dispute the
Insured’s sworn admission that he made a material misrepresentation in his
Policy Application, we affirm.
Affirmed.