7 Fla. L. Weekly Supp. 279a
Insurance — Health — Coverage — Preexisting conditions — Motion for summary judgment asserting insured had preexisting condition which precludes coverage under policy — Incontestability clause does not bar insurer from denying liability on ground that policy contains preexisting condition limitation which precludes coverage — Argument that denial of coverage is barred by incontestability clause because of insurer’s failure to initiate litigation to deny coverage based on preexisting condition is misplaced — Insurer is allowed to deny coverage for losses due to preexisting condition where evidence shows that loss occurred prior to expiration of two year incontestability period, and that preexisting condition was undisclosed — Waiver — There is no support for argument that because insurer failed to address issue of preexisting conditions in prior summary judgment motion, it waived right to file present motion — When the lower court’s grant of summary judgment to an insurer is reversed based on holding that applicant’s responses to questions on applications were not misstatements warranting rescission, on remand insurer is not prevented from litigating its other bases for denying coverage — Insurer entitled to summary judgment as there is no evidence of existence of any material fact
ALLEN GREEN, as Personal Representative of the Estate of HAROLD GREEN, Plaintiff, vs. LIFE & HEALTH OF AMERICA, a foreign corporation authorized to do business in the State of Florida, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 93-12189 (09). January 5, 2000. Robert Lance Andrews, Judge.
Summary final judgment affirmed at 26 Fla. L. Weekly D15a
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court pursuant to a mandate of the Florida Supreme Court and Defendant’s Motion for Summary Judgment, and the Court having considered the same, having heard argument of counsel, and being otherwise fully advised in its premises, finds and decides the following:
This is an action seeking reimbursement pursuant to an insurance policy issued by the defendant to Harold Green. Mr. Green applied for a home health care benefits policy from the defendant, Life & Health of America. In his application, Mr. Green stated that upon knowledge and belief, he did not suffer from medical conditions which would cause the policy to be denied. Upon the filing of a claim against the policy by Mr. Green, Life & Health reviewed his medical records and discovered that he suffered from chronic renal failure which was not listed in the application, at which time Life & Health rescinded the policy. Mr. Green filed suit seeking reimbursement and Life & Health answered that the policy had been properly rescinded due to material misrepresentations made in the application; as well as asserting the affirmative defense that the loss was not covered under the policy, due to a preexisting condition limitation contained therein. The defendant moved for summary judgment asserting that it had issued the insurance policy based on Mr. Green’s misrepresentations in his application with regard to his medical condition, and therefore was entitled to rescind the policy. The defendant did not present any argument with regard to the preexisting condition limitation in the motion for summary judgment. This Court entered summary final judgment in favor of the defendant, finding that rescission was proper under section 627.409, Florida Statutes which provides that recovery under an insurance policy may be denied where there has been a material misrepresentation made in an insured’s application. The Fourth District Court of Appeal affirmed the decision but certified conflict with a decision of the First District Court of Appeal [22 Fla. L. Weekly D907a]. The Supreme Court held that “an insured’s truthful answers on an insurance application according to the best of the insured’s `knowledge and belief,’ do not constitute misstatements within the meaning of sections 627.409. Florida Statutes (1993), and therefore cannot provide the grounds for the insurer’s rescission of the insurance policy [23 Fla. L. Weekly S42a].” The Florida Supreme Court quashed the decision below and remanded the cause back to this Court for further proceedings.
The defendant now moves for summary judgment, asserting that Mr. Green had a preexisting condition which would preclude coverage under the policy. The policy contains a preexisting condition limitation which states that “[l]osses due to Preexisting Conditions will be covered if they begin after the insured Person’s coverage has been in effect for 6 months if listed in the application; otherwise after two years subject to the Company’s defenses for fraud.” Since Mr. Green did not list the preexisting condition of Chronic Renal Failure in the application, the defendant argues that any losses would not be covered unless they begin after two years.
The plaintiff, Mr. Green’s personal representative opposes the motion for summary judgment, alleging that the motion is barred by the “incontestability clause” of the policy. The incontestability clause in the policy at issue provides:
TIME LIMIT ON CERTAIN DEFENSES: (a) After 2 years from the Effective Date no misstatements, except fraudulent ones, made by the applicant shall be used to void the Policy or deny a claim beginning after the end of the 2 year period. (b) No claim for loss incurred beginning after 2 years (6 months in New Mexico) from the Effective Date shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the Effective Date.
The plaintiff argues that since the defendant did not initiate litigation to deny coverage based on a preexisting illness, the incontestability clause precludes them from doing so now.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 1.510(c) Fla. R. Civ. Pro. The law is well settled in Florida that the party moving for summary judgment has the burden of showing conclusively the absence of a genuine issue of fact. Moore v. Morris, 475 So.2d 666 (Fla. 1985). All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Insurance Co. v. Stuckey, 220 So.2d 421 (Fla. 4th DCA 1969). Unless the material facts are so crystallized that nothing remains except question of law, summary judgment should not be granted. Moore, supra. If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Id. Only when the movant tenders competent evidence in support of its motion does the burden shift to the nonmoving party to show that a question of material fact exists. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).
In the instant matter, it has been conclusively shown that the policy in question limits losses due to preexisting conditions, not listed in the application, to those losses beginning after two years. The evidence shows that the condition for which benefits were sought was the same as the preexisting condition. The preexisting condition was not listed in the application. The fact that Mr. Green was unaware of the condition is irrelevant as to the preexisting condition limitation clause. See Life General Security Insurance Company v. Cook, 648 So.2d 237 (Fla. 4th DCA 1994); United of Omaha Life Insurance v. Peloquin, 660 So.2d 1069 (Fla. 4th DCA 1995). The plaintiff has not presented any evidence refuting that the condition for which payment is sought is any condition other than the preexisting condition, thereby entitling him to benefits.
The plaintiff’s argument that the defendant is barred by the incontestability clause because of their failure to initiate litigation to deny coverage based on a preexisting condition is misplaced. The incontestability clause does not bar the insurer from denying liability on the ground that there is not coverage because of an exception in the policy.” 18 Couch on Ins. §72:63 (2d rev. ed.). In North Miami General Hosp. v. Central Nat. Life Ins. Co., 419 So.2d 800 (Fla. 3d DCA), the Court held that the important date in determining whether an illness falls within the two year contestability period or within the incontestability period thereafter is the date when the loss is incurred. Furthermore, in Kaufman v. Mutual of Omaha Insurance Co., 681 So.2d 747 (Fla. 3d DCA), the Court stated that “[i]f a `loss’ occurs prior to the expiration of the two year incontestability period, the insurance company is allowed to deny coverage for that loss if it was an undisclosed or misrepresented preexisting condition.” In the case at bar, the evidence shows that the loss occurred prior to the expiration of the two year incontestability period, and it was an undisclosed preexisting condition.
The plaintiff argues in the alternative that the summary judgment motion is precluded by waiver or estoppel in that the defendant knew of the preexisting illness prior to the first summary judgment motion and did not take any affirmative legal action, the defendant has waived any claim or defense based on preexisting conditions.
This Court is mindful that successive summary judgment motions which may result in piecemeal review are not generally held to be acceptable, since defendants might well normally be held to the requirement that they present their strongest case for summary judgment when the matter is first raised. See Allstate Finance Corp., et al. v. Zimmerman, 296 F.2d 797 (5th Cir. 1961); Pan-American Life Ins. Co. v. Tunon, (Fla. 3d DCA 1965). However, although the better procedure for the defendant to have followed might have been to address all the issues in the original summary judgment motion, there is no support for the argument that because the defendant failed to address this issue of preexisting conditions in the prior summary judgment motion, it has waived the right to file the present motion. When the lower court’s grant of summary judgment to an insurer based on its holding that the applicant’s responses to questions on the applications were not misstatements warranting rescission under Florida Statutes section 627.409(1) is reversed, on remand the insurer is not prevented from litigating its other bases for denying coverage. See e.g. William Penn Life Insurance Co. of New York v. Sands, 912 F.2d 1359 (11th Cir. 1990). Nothing in Rule 1.510 Florida Rules of Civil Procedure requires a party to assert all possible grounds for summary judgment simultaneously. Therefore, it follows that the defendant in this matter may also litigate or defend its other bases for denying coverage by filing this motion for summary judgment. Additionally, it should be noted that the defendant did address this issue in the affirmative defense contained in their answer to the complaint.
Based on the above, this Court finds that there is no evidence of the existence of any material fact which would preclude summary judgment.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant, Life and Health of America’s Motion for Summary Judgment is GRANTED.
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