Fruchter v. Aetna Life Ins. Co., 71--609

• Citation: 266 So.2d 61
• Decision Date: 29 August 1972
• Docket Number: No. 71--609,71--609
• Parties: Emanuel M. FRUCHTER, Appellant, v. AETNA LIFE INSURANCE COMPANY, Inc., Appellee.
• Court: Court of Appeal of Florida (US)

Page 61

266 So.2d 61

Emanuel M. FRUCHTER, Appellant, v. AETNA LIFE INSURANCE COMPANY, Inc., Appellee.

No. 71--609.

District Court of Appeal of Florida, Third District.

Aug. 29, 1972.

Rehearing Denied Sept. 20, 1972.

Joseph C. Brannen, Miami, for appellant.

Blackwell, Walker & Gray and James E. Tribble, Miami, for appellee.

Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.

CARROLL, Judge.

The appellant Emanuel M. Fruchter, as insured under a policy issued by the appellee providing for certain monthly payments for total disability, filed an action against the insurer alleging he became totally disabled January 1, 1966; that the insurer made the required monthly benefit payments therefor until May 1, 1969; and that on the latter date the insurer terminated payment. The insured sought recovery of the unpaid monthly disability benefit payments under the policy.

The evidence was in conflict on the issue, material to a determination of the case, of whether the total disability of the insured, as previously recognized and acted upon by the insurer, had ceased to exist so as to have entitled the insurer to terminate payments, or continued so as to require such payments. Jury verdict was rendered in favor of the defendant insurer. Judgment was entered thereon, and the plaintiff appealed.

At the trial a due and timely request was made to the court, on behalf of the plaintiff, to give a charge to the jury, the wording of which was sufficiently in conformity to the law pronounced in New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50, 54, and Mutual Life Ins. Co. of New York v. Ewing, 151 Fla. 661, 10 So.2d 316, 317--318, that the insurer had the burden of establishing by the greater weight of the evidence 'that the insured was and is able to engage in an occupation for remuneration or profit and that total disability within the insurance policy had ceased.' That requested charge of the plaintiff was refused by the court. Instead a charge given by the court placed the burden on such issue upon the plaintiff insured.

The appellant contends, and we agree, that in refusing the requested charge the trial court committed error. The challenged ruling of the court thereon was contrary to the applicable law as pronounced in the Lecks and Ewing cases. Because the evidence on the issue was in conflict, the error cannot be regarded as harmless.

In New York Life Ins. Co. v. Lecks, supra, the plaintiff held two policies issued by the defendant insurer, containing disability benefit clauses under which the company agreed to pay the insured a certain amount each month and to waive payment of premiums if the insured became wholly and permanently disabled before he became sixty years of age. The insured became wholly disabled by bodily injuries. In recognition thereof the company paid monthly disability benefit payments as provided for in the policy for approximately two years. The insurer then ceased payment and demanded resumption of payment of premiums by the insured. Thereafter the plaintiff insured, as in the present case, filed an action against the insurer to recover the omitted benefit payments. Judgment was rendered in favor of the plaintiff and the defendant insurer appealed. The judgment was affirmed, conditioned on a remittitur imposed by the Supreme Court on a portion of the attorney fees allowed by the trial court, which the court found to be excessive. In the opinion in that case, where, as above stated, the action was one filed by the insured, the Supreme Court held it was the burden of the insurer to establish the insured's recovery to an extent which would preclude his right to continue to receive the monthly disability payments under the policy, viz:

'In this case there was no question of law as to the company's liability under the policy, assuming that the total disability of the insured had not ceased; that is to say, assuming that he had not recovered from his...