Casamassina v. U.S. Life Ins. Co.

• Decision Date: 20 June 2007
• Docket Number: No. 4D05-4008.,4D05-4008.
• Parties: Dominick CASAMASSINA, as Trustee and on behalf of the Marital Trust, and Lillian Casamassina, individually and as Personal Representative of the Estate of John Casamassina, deceased, Appellants, v. The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK and Judith Sams, Appellees.
• Court: Florida District Court of Appeals

958 So.2d 1093

Dominick CASAMASSINA, as Trustee and on behalf of the Marital Trust, and Lillian Casamassina, individually and as Personal Representative of the Estate of John Casamassina, deceased, Appellants, v. The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK and Judith Sams, Appellees.

No. 4D05-4008.

District Court of Appeal of Florida, Fourth District.

June 20, 2007.

Lawrence I. Bass of Law Office of Lawrence I. Bass, North Palm Beach, John P. Wiederhold of Wiederhold & Moses, P.A., West Palm Beach, and John L. Maloney of John L. Maloney, P.A., St. Petersburg, for appellants.

Wendy S. Leavitt and Barbara Bolton Litten of Squire, Sanders & Dempsey, L.L.P., West Palm Beach, for appellee, The United States Life Insurance Company in the City of New York.

Michael R. Holt of Rumberger, Kirk & Caldwell, Miami, for appellee, Judith Sams.

GROSS, J.

United States Life Insurance Company issued a $500,000 life insurance policy to John Casamassina on November 6, 1997. Less than two weeks later, Casamassina was diagnosed with a brain tumor; he died on December 4, 1997. After U.S. Life denied the policy claim, the trust beneficiary of the policy and the widow filed suit. The circuit court granted summary judgment in favor of the defendants, concluding that the undisputed facts demonstrated that John "knowingly and intentionally made multiple, material misrepresentations regarding his medical history and condition and that, absent these multiple, material misrepresentations, U.S. Life would not have issued the Policy or would have issued the Policy on different terms."

Finding that issues of fact remain as to the claim against U.S. Life, we reverse. We affirm the judgment in favor of another defendant, Judith Sams, who was sued for negligence, holding that she owed no legal duty to either John or appellants.

We state the facts in the light most favorable to appellants,¹ Dominick Casamassina, as Trustee of the John D. Casamassina Marital Trust and Lillian Casamassina, John's widow and the personal representative of his estate.

Until December, 1996, John was an officer of a communications company. After John became self-employed, in May or June, 1997, Lillian requested that U.S. Life send her information about a life insurance policy to replace the former employer's group life coverage that John had lost. Unrelated to this search for life insurance, in July, 1997, Lillian scheduled an appointment for John with her personal physician, Dr. Mark Rattinger. At his prior job, John underwent annual physical examinations. Lillian believed that John should continue with physicals after becoming self-employed. John did not have a personal physician, because, according to Lillian, "he was never sick with anything."

8/5/97 Visit to Dr. Poet

In August, 1997, John experienced headaches and sinus congestion. While vacationing in New Jersey, Lillian scheduled an August 5 appointment for John with Dr. Albert Poet, an ear, nose and throat specialist. Lillian noticed that John was "all congested" and "sneezing every minute." She thought that the doctor might give her husband a prescription that would relieve his symptoms for the drive home to Florida.

On Dr. Poet's medical history form, John checked off that he had nasal discharge, sinus problems, and a frequent sore throat. He also indicated that he had experienced dizziness and blurred or double vision. On a separate dizziness questionnaire, John disclosed that he first began to experience daily "attacks or episodes" of dizziness three weeks before; the attacks occurred in the morning and lasted one to two hours. During the dizziness episodes, John indicated that he experienced the following sensations when dizzy: lightheadedness, swimming sensation in the head, tendency to fall to the right and the left, balance problems when walking, headache, nausea or vomiting, and pressure in the head.

Dr. Poet suspected that John was suffering from benign positional vertigo, discussed this diagnosis with him and gave him a "Vertigo booklet." The doctor also gave John a nose spray and said "You'll be okay."

8/11/97 Appointment with Dr. Rattinger

After his return to Florida, John saw Dr. Rattinger for the physical that Lillian had previously scheduled. The doctor had never before treated John. He told the doctor that he felt congested, that he had moderate to severe headaches, and that he wondered whether his symptoms had to do with his eyes. In his record of this visit, Dr. Rattinger reported:

[John Casamassina] [i]s a very pleasant 43 year old white gentleman who for the past three to four weeks has been having moderate to severe posterior occipital headaches. Initially waking him up from sleep though they are not at the present time. He has also noticed there has been some decrease in visual acuity in his right eye for about six weeks. He initially had nausea and vomiting though this, too has improved. There is no history of head trauma or prior history of serious headaches in him or his family.

Dr. Rattinger formed an impression that the headaches were "probably stress tension" and prescribed Flexeril, a muscle relaxer. However, he also "[n]eed[ed] to rule our other etiologies," so he recommended that John undergo a "head MRI with special attention to the posterior occipital region." The doctor also ordered blood work and a chest x-ray and sent John to an eye doctor to try and eliminate another potential cause of headaches. Dr. Rattinger then wrote:

I will see John back in several weeks. In the meantime, I am trying to do my best to get him to do hot massages at night, relaxation therapy and will have him take Flexeril tablet at bedtime.

8/13/97 Appointment with Eye Doctor Costello

John's appointment with the eye doctor, S.L. Costello produced no information related to the headaches. The doctor diagnosed John with mild astigmatism in the right eye.

St. Mary's MRI

John was not enthused about going for the MRI recommended by Dr. Rattinger. He told Lillian that the test was "just doctors looking to make money. There is nothing wrong with me."

Shortly after the office visit with Dr. Rattinger, John went to St. Mary's Hospital for an MRI. However, he refused to complete the test, stating that he was claustrophobic. Back at home, Lillian called Dr. Rattinger's office to ask if the MRI should be rescheduled since John was no longer experiencing headaches. The office told Lillian that it would not be necessary to reschedule the MRI; as Dr. Rattinger later remembered

[s]ince Mr. Casamassina's symptoms had completely resolved, and since he gave a history of severe claustrophobia when he attempted to get an MRI, I did not press him to proceed with this, but merely told him to contact me should his symptoms recur.

9/19/1997 Visit to Dr. Rattinger

On September 19, 1997, John returned to Dr. Rattinger for a follow-up appointment. He told the doctor that he was feeling fine. The doctor noted in his records that John's "headaches had resolved. He is feeling well. He was unable to do the MRI because of claustrophobia. He has no complaints today." Lillian asked whether the MRI should be rescheduled; the doctor said that it was not necessary unless John's headaches returned.

9/19/1997 Meeting With Judith Sams for Life Insurance Medical Examination

On the same day as the Rattinger appointment, the Casamassinas met at their home with Judith Sams for the basic medical examination and to complete part B of his life insurance application with U.S. Life. Sams was a licensed medical assistant working for Portamedic, a company that provides medical examination services to U.S. Life and other companies in connection with life insurance applications. After receiving an examination request, Portamedic typically would contact one of its examiners, who would arrange with the insurance applicant for an appointment.

Sams had completed many health history reports for U.S. Life. Although she did not remember anything about her meeting with John, Sams testified at her deposition that it was her practice to read the health questions on an application form verbatim and to record an applicant's full and complete response to each question; if discrepancies existed between answers on the form, she would not have attempted to reconcile them.

In response to question 1(c) of the application, John responded that he saw Dr. Rattinger for headaches in August, 1997 and was prescribed Flexeril.

Question 7 on the form asked whether John had ever been treated for or had any known indication of various physical conditions. "Headache" was one of the conditions listed in question 7.a. John asked for clarification on how to answer that question, since he had already indicated in response to question 1 that he had consulted with Dr. Rattinger for headaches, and that he did not have convulsions, epilepsy or paralysis. Sams replied that in answering application questions, John "did not have to repeat conditions previously mentioned or disclosed." She explained that what U.S. Life was looking for was whether John had had a long history of headaches; since the headaches he experienced had only recently begun, he did not need to respond affirmatively to question 7.a.

After Sams's explanation, John's response to question 7 indicated that he had never "been treated for" or "had any known indication of":

a. convulsions, epilepsy, paralysis, neuritis, sciatica, nervous breakdown, headache, dizziness, fainting spells, speech defect, nervous or mental disorder[.]

* * *

d. recurrent indigestion, ulcer, colitis, diverticulitis, hernia, internal bleeding, appendicitis, disorder of stomach, liver, digestive or abdominal organs[.]

* * *

g. impairment of vision or hearing or disorder of eyes, ears, nose or throat[.]

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John's answer to question 7.a. failed to take into account the dizziness that John described for Dr. Poet on August 5. Also, in response to question 10, John responded that within the past 5 years, h...