Green v. Life & Health of America

704 So. 2d 1386, 23 Fla. L. Weekly Supp. 42, 1998 Fla. LEXIS 13, 1998 WL 19235
CourtSupreme Court of Florida
DecidedJanuary 22, 1998
Docket90747
StatusPublished
Cited by52 cases

This text of 704 So. 2d 1386 (Green v. Life & Health of America) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Life & Health of America, 704 So. 2d 1386, 23 Fla. L. Weekly Supp. 42, 1998 Fla. LEXIS 13, 1998 WL 19235 (Fla. 1998).

Opinion

704 So.2d 1386 (1998)

Allen GREEN, Petitioner,
v.
LIFE & HEALTH OF AMERICA, Respondent.

No. 90747.

Supreme Court of Florida.

January 22, 1998.

*1387 Jerold Hart of Jerold Hart, P.A., Hollywood, and Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for Petitioner.

Nancy W. Gregoire and Richard T. Woulfe of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, P.A., Fort Lauderdale, and Howard D. Scher and Howard J. Bashman of Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, for Respondent.

Jeff Tomberg of Jeff Tomberg, J.D., P.A., Boynton Beach, for Amicus Curiae Academy of Florida Trial Lawyers.

Rocco N. Covino and Thomas C. Dearing of LeBoeuf, Lamb, Greene & MacRae, LLP, Jacksonville, for Amicus Curiae American Council of Life Insurance.

ANSTEAD, Justice.

We have for review the decision in Green v. Life & Health of America, 692 So.2d 220 (Fla. 4th DCA 1997). In its opinion, the district court certified conflict with the opinion in Carter v. United of Omaha Life Ins., 685 So.2d 2 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we quash the decision under review, approve the opinion in Carter, and hold that an insured's truthful answers on an insurance application *1388 according to the best of the insured's "knowledge and belief," are not misstatements within the meaning of section 627.409, Florida Statutes (1993), and cannot provide the grounds for the insurer's rescission of the insurance policy.

MATERIAL FACTS[1]

In March 1991, Harold Green (Green) applied for a home health care benefits policy from respondent, Life & Health of America (Life & Health). The application contained a section requesting responses to a series of questions regarding the applicant's health. The questions focused on the diagnosis, or possible diagnosis, of nine particular medical conditions. Specifically, the application asked: "Have you or your spouse within the past 5 years had or been told you have the following conditions." Next to each condition listed, including "kidney failure" and "chronic obstructive lung disease," Green checked the box for "no." Above the signature line, to which Green affixed his name, the application contained the following language:

The answers given by me are full, true and complete to the best of my knowledge and belief. All statements made herein are deemed representations and not warranties.

Life & Health issued the policy. One year later, Green made a claim against the policy. After the claim was filed, Life & Health reviewed Green's medical records and discovered that he suffered from chronic renal failure. As a result, Life & Health rescinded the policy and returned all of the previously paid premiums.

Subsequently, Green filed suit against Life & Health, seeking reimbursement for the cost of his hospitalization pursuant to the policy. Life & Health answered, asserting that the policy had been properly rescinded due to material misrepresentations made in the application. Green died shortly after the initiation of the lawsuit and his personal representative, Allen Green, was substituted as a party and is the petitioner in this case. Thereafter, Life & Health moved for summary judgment asserting that it had issued the insurance policy based on Green's representations in the application that he did not suffer from kidney failure or chronic obstructive lung disease.

The deposition of Green's treating physician was submitted as support for Life & Health's motion. In the deposition, the doctor testified that Green had suffered from chronic obstructive pulmonary disease, as noted in Green's 1991 medical chart. However, the doctor further testified that it was his regular practice to use layman's terms, instead of medical terms, when informing patients of their conditions, and that he probably told Green that he had a "little asthma" or a "little bronchitis." Additionally, instead of using a term like "chronic renal failure," the doctor would have told Green that he had "some sluggish kidneys." Green's son also gave evidence, by sworn affidavit, that during the many doctors' appointments which he attended with his father, at no time did any doctor state that Green had kidney failure or suggest kidney dialysis. The only diagnosis Green received from his various doctors was that he had "slow kidneys" or "small kidneys."

The trial court entered summary final judgment in favor of Life & Health, finding that rescission was proper under section 627.409, Florida Statutes (1993),[2] which provides that recovery under an insurance policy *1389 may be denied where there has been a material misrepresentation made in the insured's application. The Fourth District affirmed, in a two-to-one decision, based upon our decision in Continental Assurance Co. v. Carroll, 485 So.2d 406 (Fla.1986), "despite the undisputed evidence that Green had no knowledge of his condition and any misrepresentation was therefore unintentional." 692 So.2d at 221.[3] However, the Fourth District acknowledged a series of contrary holdings from the Eleventh Circuit Court of Appeals and certified conflict with the First District's opinion in Carter v. United of Omaha Life Ins., 685 So.2d 2 (Fla. 1st DCA 1996).

LAW AND ANALYSIS

In contrast to the Fourth District's holding here, the First District in Carter v. United of Omaha Life Insurance, 685 So.2d 2 (Fla. 1st DCA 1996), reached a different conclusion under similar facts, reasoning that the insurer should be held to the lower standard of accuracy created by the "knowledge and belief" language used in its own contract. The First District, citing several Eleventh Circuit decisions, concluded that "once the insurer sets its own standard by contract for judging misrepresentations and concealment, it cannot rely on a statute that imposes more stringent requirements on an insured." Id. at 6.

In Carroll, the parents of an infant boy applied for a life insurance policy on the child. 485 So.2d at 407. When the child was less than six weeks old, Mrs. Carroll was told by the pediatrician that the child had developed a heart murmur and needed both an EKG and x-rays. Id. Just one week later, the Carrolls filled out the child's life insurance application, representing that the infant was "to the best of [their] knowledge and belief, in good health and free from deformity or defect," that the doctor said his findings were "normal," and that the doctor did not prescribe any treatment or drugs. Id. Continental issued the life insurance policy approximately ten days later; and the Carrolls' baby boy died of congenital heart disease nine days thereafter. Id.

Continental denied the Carrolls' subsequent claim on the grounds that it never would have issued the life insurance policy had they answered the questions truthfully on the application. Id. Litigation then ensued, with the Carrolls prevailing in the trial court and on appeal. Id. On review, we addressed the narrow and discrete issue, certified in the form of a question of great public importance, of whether Justice Ervin's special concurrence in National Standard Life Insurance Co. v. Permenter, 204 So.2d 206 (Fla.1967), modified our strict rule enunciated in Life Insurance Co. of Virginia v. Shifflet,

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Bluebook (online)
704 So. 2d 1386, 23 Fla. L. Weekly Supp. 42, 1998 Fla. LEXIS 13, 1998 WL 19235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-life-health-of-america-fla-1998.