Lorber v. Aetna Life Ins. Co., No. 67-4

CourtCourt of Appeal of Florida (US)
Citation207 So.2d 305
Docket NumberNo. 67-4
Decision Date13 February 1968
PartiesNathan LORBER, Appellant, v. AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, Appellee.

Page 305

207 So.2d 305
Nathan LORBER, Appellant,
AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, Appellee.
No. 67-4.
District Court of Appeal of Florida, Third District.
Feb. 13, 1968.
Rehearing Denied March 12, 1968.

Page 306

Simons, Simons & Simons, Miami, for appellant.

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



This appeal is by the plaintiff from a final judgment in an action for a declaratory judgment. The controversy concerned plaintiff-appellant's claim under a disability insurance contract with defendant-appellee, in which appellee denied coverage. The effect of the judgment was a finding that appellant was not covered because he was not 'unable to perform every duty of his occupation' as required by the contract. The judgment was entered at the close of plaintiff-appellant's evidence in a non-jury trial. A motion to dismiss at this stage in a non-jury trial is provided by Rule 1.420(b), 30 F.S.A. 1 We reverse upon a holding that the

Page 307

trial judge failed to apply the proper legal test as to the degree of proof required.

The appellant, Nathan Lorber, was in the 'floor covering business' from 1947 to the date, in 1957, of an accident next mentioned. In September 1957, he suffered a broken knee in an automobile accident. A surgical operation was necessary during which a pin was placed in his knee. After a period of convalescence, he continued in the same business for some six years.

In 1960, appellant applied for and received the disability policy which is now involved. There is no question of any failure to disclose the injury on the application or failure to follow any procedural steps required by the policy.

Appellant sold his business in 1962 and remained for six months as an advisor. In January of 1965, appellant accepted employment with a company which built and sold cabinets. In June of 1965, he gave up this employment, and in September he filed his claim under the policy. The evidence about appellant's claimed disability will be summarized in our discussion of appellant's first point.

This point urges that the trial judge erroneously excluded appellant's proffered evidence covering appellant's ability to perform the duties of his occupation. The evidence proffered consisted of treating physician's answers to hypothetical questions. 2 The questions were based upon the appellant's testimony as to the physical requirements of his work.

There is authority for the rule that physicians should not be able to state an opinion as to whether there was a total disability under a policy because this is the basic question before the trier of fact. But see contra Mutual Ben. Health & Acc. Ass'n v. Bunting, 133 Fla. 646, 183 So. 321 (1938). However, a medical specialist can answer a hypothetical question in accordance with any reasonable theory as long as the question is based upon evidence before the court. Millar v. Tropical Gables Corp., Fla.App.1958,99 So.2d 589; City of Miami Beach v. Belle Isle Apartment Corp., Fla.App.1965, 177 So.2d 884; Atlantic Coast Line Railroad Company v. Braz, Fla.App.1966, 182 So.2d 491. The physicians were not asked whether Mr. Lorber was disabled under the terms of the policy, but rather,

Page 308

whether he could perform certain physical acts which had previously been set forth in Mr. Lorber's description of his occupational duties. The expert physicians should have been allowed to answer the hypotheticals.

The substance of the excluded testimony is that the appellant was unable to perform any occupation or activity requiring frequent bending or squatting because of arthritic change in the knee joint. The doctors further testified that the appellant ought not to return to the type of work that he was doing at the cabinet company.

The basic question presented by this appeal is raised by appellant's second point; that is, whether the trial judge clearly misconceived the weight of the evidence or applied an incorrect legal test in determining that the evidence offered by the plaintiff was insufficient to support a judgment for the plaintiff, appellant.

In John I. Moss, Inc. v. Cobbs Company, Fla.App.1967, 198 So.2d 872, we again set forth the proper test applicable to a motion to dismiss upon the evidence at the close of plaintiff's case in a nonjury trial. Without restating the rule, it is sufficient to say that if the trial judge sitting without a jury concludes that upon the facts and the applicable law the plaintiff has shown no right to relief, then his order dismissing the plaintiff's...

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18 cases
  • Ames v. Provident Life and Acc. Ins. Co., 93-14010-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 26 Agosto 1994
    ...At trial, the jury found that Dr. Ames was not totally disabled. In moving for JNOV, Dr. Ames cites Lorber v. Aetna Life Ins. Co., 207 So.2d 305, 309 (Fla. 3rd DCA), cert. denied, 212 So.2d 876 (Fla.1968) and Grauer v. Occidental Life Ins. Co., 363 So.2d 583 (Fla. 1st DCA 1978) for the prop......
  • Brown v. Continental Cas. Co., 46531
    • United States
    • United States State Supreme Court of Kansas
    • 10 Junio 1972
    ...policy. . . .' (P. 596, 366 P.2d p. 830.) A frequently cited affirmation of the rule is found in Lorber v. Aetna Life Insurance Company, 207 So.2d 305 (Fla.App.), where the policy under consideration provided for disability payments where the insured was 'unable to perform every duty pertai......
  • Mack v. Unum Life Ins. Co. of America, 06-80308-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 16 Enero 2007
    ...is enforceable. Mutual Benefit Health & Accident Ass'n v. Bunting, 133 Fla. 646, 183 So. 321, 327 (1938); Lorber v. Aetna Life Ins. Co., 207 So.2d 305, 308-09 (Fla. 3d DCA 1968). Florida courts give such "care and attendance" clauses a liberal interpretation. Id. It is, nonetheless, a plain......
  • Fritz v. Standard Sec. Life Ins. Co. of New York, 80-5859
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 24 Mayo 1982
    ...Supreme Court refused to enforce the literal language of a "care and attendance" clause. Further, in Lorber v. Aetna Life Ins. Co., 207 So.2d 305 (Fla.App.), cert. denied, 212 So.2d 876 (Fla.1968), the court interpreted the clause in an exceedingly broad fashion in order to permit the polic......
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