Davis v. Nationwide Life Ins. Co.

450 So. 2d 549
CourtDistrict Court of Appeal of Florida
DecidedApril 26, 1984
Docket82-1358
StatusPublished
Cited by14 cases

This text of 450 So. 2d 549 (Davis v. Nationwide 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
Davis v. Nationwide Life Ins. Co., 450 So. 2d 549 (Fla. Ct. App. 1984).

Opinion

450 So.2d 549 (1984)

Mark A. DAVIS, Appellant,
v.
NATIONWIDE LIFE INSURANCE COMPANY, a Foreign Corporation, Appellee.

No. 82-1358.

District Court of Appeal of Florida, Fifth District.

April 26, 1984.
Rehearing Denied May 25, 1984.

Wooten, Honeywell, Kest & Martinez, P.A., Orlando, and McClellan, Kaster & Vostrejs, P.A., Ocala, for appellant.

W. David Rogers, Jr. of Rogers & Dowling, P.A., Orlando, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Mark Davis appeals from a final summary judgment in favor of Nationwide Life Insurance Company denying him benefits under a hospitalization policy carried by his employer, Showalter Flying Service.

Nationwide denied coverage on the basis that the policy was not effective until November 1, 1981, and Davis' accident, which resulted in the amputation of his left leg below the knee, occurred on October 12, 1981.

The crucial question in this case is when Davis became employed by Showalter since under the terms of the policy, an "eligible person" is defined as:

Any person who
* * * * * *
(2) subsequent to the effective date of this Policy, has been regularly employed by the Policyholder not less than three months. (emphasis added)

The effective date of insurance was stated to be:

The effective date of insurance for an eligible person will be the first of the policy month coinciding with or next following the date he becomes an eligible person.

*550 The insurance policy defines "policy month" as "a period of successive days commencing on the first day of each calendar month and ending on the day immediately preceding the corresponding day of the next following calendar month." The policy does not define the word "employed."

The factual circumstances of Davis' employment are as follows. On June 16, 1981, Davis filled out an application for employment. On the following day, he was interviewed by John Stafford, vice president of line operations for Showalter. While no vacancy existed at this time, a position became available shortly thereafter. On July 1, Stafford had Davis come in and sign various paperwork, e.g., an acknowledgement that he had read the company rules and regulations and that he was on a ninety-day probationary period. Stafford testified in his deposition that he hired Davis on July 1 and that Davis was to report for work on July 2. Stafford further said that as far as Showalter was concerned, Davis' ninety-day probationary period commenced on July 1, 1981, and he was an employee as of that date.

This testimony is significant because Davis argues that he was employed as of July 1, 1981, and therefore under the terms of the hospitalization policy set out above, he was covered by the policy three months later, on October 1, 1981, some eleven days before his accident. Nationwide argues that Davis was an employee as of July 2, 1981, and therefore under the terms of the policy, coverage would not become effective until November 1, 1981. In this regard, Nationwide relies on the deposition testimony of Showalter's general manager, Ralph Loos, Jr. He testified that while there was no written policy, it was his impression "that you don't have an employee until he's on the payroll being paid."[1] He thought the probationary period begins when a person reports to work.

Various documents were introduced and bore the date July 2nd, such as Davis' time card and employee history form. However, at the bottom of the Employment Application Form, it is noted that Davis was "hired 7/1/81," and "will report 7/2/81."

We believe that no disputed issues of material fact exist in this case and rather the case turns on the construction to be placed on the policy language, particularly the word "employed." This issue was one of law for the trial court and hence resolution by summary judgment was proper. See Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979); Sandron Corp. v. Utica Mutual Ins. Co., 360 So.2d 477 (Fla. 3d DCA 1978). However, we hold that the court erred in resolving this matter adversely to Davis.

When a term in an insurance policy is ambiguous, as the term "employed" is in this case, the court is required to construe it in favor of the insured and against the insurer. Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla. 1965); National Merchandise v. United Service Automobile Ass'n., 400 So.2d 526 (Fla. 1st DCA 1981). If an insurer intends to restrict coverage, it should use language clearly stating its purpose. Ward v. Nationwide Mutual Fire Ins. Co., 364 So.2d 73 (Fla. 2d DCA 1978).

According to Black's Law Dictionary, "to employ" means "to engage in one's service; to hire ... and, when used in respect to a servant or hired laborer, the term is equivalent to hiring, which implies a request and a contract for a compensation." Black's Law Dictionary (5th ed. 1979). See Tennessee Coal Iron & R. Co. v. Muscoda Local No. 123, Ala., 321 U.S. 590, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944). The word "employ" is defined in Webster's New Collegiate Dictionary (1979), as: "to use or engage the services of; to provide with a job that pays wages or a salary."

In the instant case, Davis had requested employment and was given a job, i.e., hired on July 1, 1981. At that time, he was informed of the terms and conditions of his employment and signed the necessary paperwork. At this point, Showalter *551 and Davis had a contract of employment and under this contract, Davis was subject to direction from Showalter as to when and how to perform the work for which he would be paid. Clearly, Showalter could have, as it did, request that Davis begin actual work the following day. The fact that Davis would not begin to earn wages until he actually commenced work for Showalter did not prevent him from becoming "employed" on July 1, 1981. Nationwide is, in essence, asking that the term "employed" be construed to mean when actual work is begun. However, if Nationwide, which drafted the policy, wished to so limit coverage, it need only have used more restrictive language clearly stating its desire. Ward v. Nationwide Mutual.

REVERSED and REMANDED for entry of judgment for Davis.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I agree with the trial judge that the undisputed facts in this case establish Davis was not covered by the group policy at the time of his accident, and the wording of the policy was not ambiguous. This is a tough case. Davis missed being covered by his employer's group policy by just one day. Had Davis started work on July 1, 1981, his coverage clearly would have commenced October 1, 1981, but because he started on July 2, 1981, I do not think he was covered until the next full calendar month, beginning November 1, 1981. As the fates would have it, Davis' motorcycle accident occurred on October 12, 1981. Davis lost his leg below the knee, and he necessarily incurred medical and hospital bills. He needs the insurance money, and I sympathize with the result of the majority opinion, although I cannot agree with it.

The record shows, without any real dispute, the following occurred. Davis filed an application for employment with Showalter Flying Service, Inc. on June 16, 1981.

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450 So. 2d 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-nationwide-life-ins-co-fladistctapp-1984.