Cox v. American Pioneer Life Ins. Co.

626 So. 2d 243, 1993 WL 341109
CourtDistrict Court of Appeal of Florida
DecidedSeptember 10, 1993
Docket92-2115
StatusPublished
Cited by5 cases

This text of 626 So. 2d 243 (Cox v. American Pioneer Life Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. American Pioneer Life Ins. Co., 626 So. 2d 243, 1993 WL 341109 (Fla. Ct. App. 1993).

Opinion

626 So.2d 243 (1993)

Hubert Steve COX, Appellant,
v.
AMERICAN PIONEER LIFE INSURANCE COMPANY, a Foreign corporation, Appellee.

No. 92-2115.

District Court of Appeal of Florida, Fifth District.

September 10, 1993.
Rehearing Denied November 1, 1993.

*244 Charles L. Handlin, III, of Handlin & Hefferan, Orlando, for appellant.

Steven L. Brannock, Terry L. McCollough and Karol K. Williams of Holland & Knight, Tampa, for appellee.

DAUKSCH, Judge.

Appellant, Steve Cox, timely appeals a judgment notwithstanding the verdict which the trial court entered in favor of appellee, American Pioneer Life Insurance Company, following a jury trial in a breach of insurance contract case. The issue on appeal is whether the trial court erred by denying recovery under a major medical insurance policy on the ground that appellant made a material misrepresentation on his insurance application. We hold it did and reverse.

Section 627.409(1), Florida Statutes (1991) provides the following:

627.409 Representations in applications; warranties. —
(1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless:
(a) They are fraudulent;
(b) They are material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

The materiality of an insured's misrepresentation is a factual issue where there is a dispute as to the extent of the questions asked by the agent, the accuracy of the insured's answers and the insured's alleged misrepresentation. See Patterson v. Cincinnati Ins. Co., 564 So.2d 1149 (Fla. 1st DCA 1990); Preferred Risk Life Ins. Co. v. Sande, 421 So.2d 566 (Fla. 5th DCA 1982); Beneby v. Midland Nat. Life Ins. Co., 402 So.2d 1193 (Fla. 3d DCA 1981); Travelers *245 Ins. Co. v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975). The evidence in the present case showed that appellant and his wife made several misrepresentations in their insurance application. Because there was a factual dispute as to the extent of the information imparted by appellant to appellee through its agent, however, the ultimate issue is whether the misrepresentations were material.

The evidence at trial showed that appellant's wife, Diane Cox, filled out an application for group medical insurance with appellee in April of 1989 seeking coverage for the entire family through appellant's business. John Atkins was the agent who handled the transaction. Appellant testified that the first time they met, he told Atkins that his daughter, Dina, had tachycardia, a condition causing a rapid heartbeat which lasts from a few seconds to a couple of minutes. Because Atkins did not understand the condition, he called Kim Ricketts in the underwriting department. Following their conversation, he told appellant that he would attach Dina's medical records to the application.

Diane did not indicate on the insurance application that Dina had previously been denied coverage by another insurance company because appellant had not told her about the denial. Question number five on the application additionally asked whether any person to be covered had ever had or received medication or treatment for a heart attack or heart disease. Diane answered no to this question because she was under the impression that tachycardia was a condition rather than a disease. She also admitted at trial that Dina had been seen within the past five years by Dr. Nadkarni, her treating physician for the condition, but testified that she did not note the visit on the application because the agent knew that Dina's medical records were being sent with the application. Finally, she neglected to note that a female surgical procedure had been performed on Dina in 1988 because it "was a very private thing."

When Diane was asked which medical records were attached to the application, she replied that Dina's complete medical records from Dr. Nadkarni were attached. She and appellant both admitted at trial that the medical records which they provided to appellee's insurance agent did not cover Dina's last visit to Dr. Nadkarni in March of 1989 despite the fact that the application was filled out and the policy was issued in April. Diane also admitted that she had answered two or three of the questions on the insurance policy incorrectly but said that she had not done so deliberately.

Appellee agreed to provide the Cox family with medical coverage. It later denied coverage for a hospitalization claim incurred by Dina which was unrelated to her tachycardia. Although the claim was in the amount of $12,752.50, the Coxes were responsible for $1,000 of the bill under the policy. In its letter to appellant, appellee stated that it was denying coverage because appellant had failed to disclose that Dina had a "medical history prior to the application." Edith Jackson, appellee's Vice President of Claims, testified that the only reason appellee denied coverage of Dina's hospitalization claim is because the Coxes did not provide it with Dr. Nadkarni's medical records pertaining to her visit on March 7, 1989.

John Atkins, the insurance agent, testified that when he first met with appellant, appellant told him that Dina had a congenital heart condition but that she had not received treatment for the condition for a couple of years. Atkins advised appellant that further investigation would be necessary before the policy could be written. During his second meeting with appellant, Atkins told him that he would have to determine whether Dina's condition was significant enough to warrant an immediate denial of coverage. He called Ricketts from appellant's office. He told her that Dina had been born with a heart condition but that she had not received treatment for the condition in the last two years. Ricketts told Atkins that she would need Dina's medical records before she could make a coverage determination.

Atkins testified that he hand delivered appellant's application along with the attached medical records pertaining to Dina's heart condition to appellee's business office. He made a notation on the records which stated:

*246 Kim, this is additional medical history on Dina. Note, last treatment was 1987 per Mr. Cox, her father. Dina has not received medication or been under treatment for this condition the past two years. Thanks, John.

Atkins testified that the attached records covered Dina's condition from 1982 through 1987.

Kim Ricketts, appellee's life and health insurance underwriter, testified that she reviewed and approved appellant's insurance application. She testified that there was nothing on the application at the time which warranted a further review of any medical records.

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626 So. 2d 243, 1993 WL 341109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-american-pioneer-life-ins-co-fladistctapp-1993.