Defendant appeals as of right the trial court’s grant of summary disposition, dismissing without prejudice plaintiffs claim for benefits under a homeowner’s policy. Defendant argues that the dismissal should have been with prejudice. We disagree and affirm the ruling of thе trial court.
Plaintiff owned a home that was insured by defendant. Plaintiff alleged that on July 22, 1994, her home was burglarized and property wаs stolen therefrom. Plaintiff sought to collect benefits under her homeowner’s policy. In a September 27, 1994, letter, defendаnt requested, pursuant to the homeowner’s policy, an oral examination of plaintiff, under oath, on October 25, 1994. On Octоber 5, 1994, plaintiff gave a detailed, taped statement to defendant. This statement was not given under oath. On October 25, 1994, plaintiff failed to appear for the scheduled oral examination. In a letter dated October 31, 1994, defendant reschеduled the oral examination for November 21, 1994. Plaintiff filed the instant action on November 2, 1994.
*256 Defendant moved for summary dispositiоn, arguing that because plaintiff failed to satisfy the condition of being examined under oath, recovery under the policy was barred. Plaintiff argued that by giving the taped statement, although it was not given under oath, she substantially complied with the oral examination condition. The trial court granted defendant’s motion on the ground that the oral examination condition had nоt been satisfied. The trial court dismissed the case without prejudice and with the “hope that the parties can proceed with the examination under oath and refile [sic] this case.”
On appeal, the precise issue presented is whеther an action dismissed for failure to comply with a condition in a homeowner’s policy requiring the insured to submit, upon request, to an oral examination under oath before an action can be brought, should be dismissed with prejudice. We answer in thе negative.
The policy at issue in this case provides, in relevant part, as follows:
Section 1 — Conditions
* * *
2. Your Duties After Loss. After a loss to which this insurance may аpply, you shall see that the following duties are performed:
* * *
d. as often as we reasonably require:
(3) submit to and subscribe, while not in the presence of any othеr insured:
(a) statements; and
*257 (b) examinations under oath; and
8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be stаrted within one year after the date of the loss or damage.
A “condition precedent” is a fact or event that thе parties intend must take place before there is a right to performance.
Knox v Knox,
Conditions similar to the one in the case at bar have been addressed in рrevious decisions. In
Gordon, id.
at 229-231, on the day the plaintiff was to be examined under oath, she declined to participate in the examination because her attorney was unavailable. The Supreme Court held that the plaintiffs conduct did not amount to a refusal to submit to the examination, and, therefore, her right to maintain the action had not been precluded.
Id.
In
Gibson v Group Ins Co of Michigan,
We hold that, as a general rule, a provision such as the one in the instant case is a condition precedent to filing the action, and the failure to comply with such a condition is not an absolute bar to recovery, but acts to suspend the right to recovery until the examination is held. See 20 Appleman, Insurance Law & Practice, § 11416, p 568. Therefore, in general, dismissal without prejudice is proper. We find nothing in the language of the policy or the argument of defendant to persuade us that the failure to comply with such a condition requires dismissal with prejudice. The purpose behind the examination condition is “to elicit the facts in order that the company may determine whether it will defend or adjust the claim.” Gordon, supra at 230. Our holding is consistent with and does not frustrate this purpose. Dismissal without preju *259 dice, which would allow a plaintiff to submit to an examination under oath and then refile the action, is equitable and protects the interests of both parties. The plaiutiff will have the opportunity to sеek her insurance benefits, while the defendant will still have the opportunity to examine the plaintiff, under oath, to determinе if it will defend or adjust the claim.
Defendant argues that because plaintiff wilfully violated the condition of being examined under oath, the dismissal should be with prejudice. However, we find nothing on the record to indicate that plaintiff’s failure to submit to the exаmination on October 25, 1994, was the result of a flat refusal to submit to such an examination. Therefore, we need not address thе effect of wilful noncompliance on the general rule stated here.
Under these circumstances, the trial court properly dismissed plaintiff’s action without prejudice.
Affirmed.
Notes
Plaintiff has not asked for, and we do not offer, our opinion regаrding whether, under the circumstances of this case, plaintiff had substantially complied with the condition of being examined under oath.