Minnesota Mut. Life Ins. Co. v. Candelore, 81-493

• Decision Date: 26 May 1982
• Docket Number: No. 81-493,81-493
• Parties: MINNESOTA MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Appellant, v. Susan K. CANDELORE, Appellee.
• Court: Florida District Court of Appeals

Page 1149

416 So.2d 1149

MINNESOTA MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Appellant, v. Susan K. CANDELORE, Appellee.

No. 81-493.

District Court of Appeal of Florida Fifth District.

May 26, 1982.

Rehearing Denied July 27, 1982.

Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant.

Herbert H. Hall, Jr. and Ronald J. Langa of Maher, Overchuck, Langa & Cate, P. A., Orlando, for appellee.

COWART, Judge.

This is an action on a life insurance policy in which the defendant insurance company asserted the defense of a material misrepresentation in the application for the policy. The jury found against the insurance company, which appeals the denial of its motions for directed verdict made during the trial and its subsequent motion for a judgment non obstante veredicto.

The substantial uncontradicted evidence clearly established that the insured consulted two physicians during the month immediately preceding his application for insurance, yet in the application he denied having consulted any physician during the preceding three years. Appellee argues that whether the misrepresentation was material ¹ is a question of fact for the jury which was resolved in appellee's favor. However, the evidence is also uncontradicted that, had the question been truthfully answered, as a matter of the insurance company's standard business practice and guidelines, ² the application would not have been summarily approved by a group administration unit, but would have been passed on to a group underwriting department. The underwriting department would have investigated the doctor's reports, which would have revealed that the applicant had suffered a quick on-set of sclerodactylia and that, while that condition may or may not have lead to scleroderma, a life-threatening disease, the insurance company would not at that time have approved the application and issued the policy. Under these circumstances, courts have generally found that the misrepresentation was material as a matter of law. ³ Appellant's motions for a disposition of the question of the misrepresentation and its materiality by the trial court as a matter of law should have been granted under the facts of this case. Accordingly, the final judgment is

REVERSED and the cause remanded for entry of judgment in favor of appellant.

SHARP, W. J., concurring and concurring specially, with opinion.

DAUKSCH, C. J., dissenting with opinion.

SHARP, Judge, concurring and concurring specially.

I concur with the majority opinion in this case because the key factor in determining the "materiality" of Candelore's misrepresentation was whether the insurance company would have found the true facts relevant or material in deciding whether or not to insure, or at what price. Garwood v. Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974), cert. denied, 321 So.2d 553 (Fla.1975). In this case the evidence was uncontradicted that the insurance company would have made inquiry about the office visits and it would have learned about Candelore's quick on-set of sclerodactylia. Having learned that, the medical director for the insuror testified without any contradiction or rebuttal, that at best, he would have advised delaying the issuance of the policy for two or three years, in order to be certain the condition did not progress to the rare but life threatening disease to which Mr. Candelore unfortunately succumbed. There was no evidence offered to show the company would have then insured Candelore once the company knew of the diagnosis of sclerodactylia and that is why his misrepresentation was material as a matter of law.

DAUKSCH, Chief Judge, dissenting:

I respectfully dissent. In my view the evidence before the jury in this case was such that we cannot say, as a matter of law, the appellee was not entitled to a judgment on the verdict. The jury had evidence from which it could have concluded, and apparently did conclude that the alleged misrepresentation was not material. I agree with the holding in the Beneby v. Midland National Life Insurance Company, 402 So.2d 1193 (Fla. 3d DCA 1981) case which says "the general rule is that factual issues pertaining to misrepresentations on an application for insurance are properly within the province of the trier of fact." None of the cases cited in the majority opinion hold otherwise.

The verdict of the jury and the judgment of the trial judge come to this court presumed correct. We cannot properly disturb the lower court judgment unless there is a total lack of evidence to support the verdict and judgment. Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla.1977); Commercial Credit Corp. v. Varn, 108 So.2d 638 (Fla. 1st DCA 1959). The jury and the trial judge are in a much better position to evaluate the evidence than we are.

The evidence must be viewed in a light most favorable to the verdict. This means most favorable to the appellee. All reasonable inferences will be drawn from the evidence in favor of the party who has convinced the jury. Underwriters Nat'l Assurance Co. v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976); Graves v. Wiggins, 257 So.2d 268 (Fla. 3d DCA 1972); Krasny v. Richter, 211 So.2d 612 (Fla. 3d DCA 1968). This is especially true where that convincing party was the plaintiff who had to prove her case by a preponderance of the evidence.

The evidence showed that Joseph Candelore was a man of thirty-five years, happily married, a father of two children and expecting a third. He owned and operated a heating and air conditioning business and worked long hours performing manual labor pursuing his livelihood. In June of 1978 he noticed that his hands and feet had become puffy and that he was losing a bit of his grip. He consulted a doctor who suspected "impending collagen vascular disease," a very serious and possibly life-threatening condition. The doctor ordered tests done to seek evidence of a collagen vascular disease. The test results were "normal," the doctor did not make a diagnosis and referred Joseph to a rheumatologist who determined Joseph had sclerodactylia, a thickening of the skin on the fingers. It is not a disease, but a symptom. It can...