Motor Union (Aviation) Orion Ins. Co. v. Levenson

• Decision Date: 04 June 1963
• Docket Number: 63-53 and 63-54,Nos. 63-52,s. 63-52
• Citation: 153 So.2d 852
• Parties: MOTOR UNION (AVIATION) ORION INSURANCE CO., Ltd., 'T' A/C and London and Edinburgh Ins. Co., Ltd., d/b/a insurance Companies in England, Appellant, v. Franklyn LEVENSON, Appellee. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Appellant, v. Franklyn LEVENSON, Appellee. SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant, v. Franklyn LEVENSON, Appellee.
• Court: Florida District Court of Appeals

Page 852

153 So.2d 852

MOTOR UNION (AVIATION) ORION INSURANCE CO., Ltd., 'T' A/C and London and Edinburgh Ins. Co., Ltd., d/b/a insurance Companies in England, Appellant, v. Franklyn LEVENSON, Appellee.

CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Appellant, v. Franklyn LEVENSON, Appellee.

SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant, v. Franklyn LEVENSON, Appellee.

Nos. 63-52, 63-53 and 63-54.

District Court of Appeal of Florida, Third District.

June 4, 1963.

L. J. Cushman and Carr & Warren, Miami, for appellants.

Truett & Watkins, Miami, for appellee.

Before CARROLL, HORTON and BARKDULL, JJ.

PER CURIAM.

These interlocutory appeals are from similar orders in three suits brought by appellee on separate insurance contracts. They were consolidated and heard together. What is said here applies to all. Suit was filed for declaratory decree, seeking construction of contract and judgment for amounts claimed to be payable for disability from an automobile accident. The answer charged fraud and that the injury was intentional and self-inflicted. The coverage excluded disability so induced. After having made provision for a jury trial of the issue created by that defense, the court granted a motion by the plaintiff for summary judgment thereon. That order is one of those appealed. On considering the facts as revealed by the pleadings and the numerous depositions which were before the trial judge on the hearing on plaintiff's motion for summary judgment, and according the party moved against the benefit of inferences reasonably to be drawn in its favor from the facts disclosed, we have concluded that issues were raised relating to the defense of conspiracy to defraud and intentional accident which presented jury questions, not triable by the court of proper to be determined by summary judgment. In holding the contrary the able trial judge was in error, and we therefore reverse the summary judgment. See Alepgo Corporation v. Pozin, Fla.App.1959, 114 So.2d 645, 647; Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 5 Cir.1945, 149 F.2d 359; Colby v. Klune, 2 Cir.1949, 178 F.2d 872; Subin v. Goldsmith, 2 Cir.1955, 224 F.2d 753.

The second order sought to be reviewed, which denied a requested medical examination of the plaintiff, is affirmed. Several examinations had been made earlier. Liability under the policies had been disclaimed. The examination was requested close to the date set for trial. In the situation presented, no abuse of discretion was shown.

The third order appealed was one which granted plaintiff's motion for protection and operated to prevent the defendant from taking the discovery deposition of a doctor whom plaintiff's attorneys had employed to examine the plaintiff and advise them. As disclosed by their motion plaintiff's attorneys did not intend to have the doctor testify at the trial. The plaintiff was not unavailable for similar examination by other doctors. It seems clear the only information which could be expected to be obtained from him was what he found on examining the plaintiff and the records, and his conclusions thereon. No good cause was shown by the defendants to justify deposing this expert hired to inform and advise the plaintiff's attorneys. Under the circumstances, the denial of...