Prudential Ins. Co. of America v. Rhodriquez, 73--241
| Decision Date | 27 November 1973 |
| Docket Number | No. 73--241,73--241 |
| Citation | 285 So.2d 689 |
| Parties | PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation, Appellant, v. Reginald RHODRIQUEZ, Appellee. |
| Court | Florida District Court of Appeals |
Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, and Clifford B. Wentworth, Miami, for appellant.
Gus Efthimiou, Jr., Miami, for appellee.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
Plaintiff-appellant seeks review of an adverse final summary judgment entered in favor of defendant-appellee in an action to cancel and rescind certain insurance policies.
On June 11, 1969, plaintiff-appellant, Prudential Insurance Company of America, issued an Income Protection Policy and a Life Insurance Policy, effective as of that date. Both policies contained the following two (2) year contestability clauses:
'H 50 316954
'Incontestable: (a) After this Policy has been in force for a period of two years during the lifetime of the Insured (excluding any period during which the Insured is disabled), it shall be incontestable as to the statements contained in the application.
'(b) No claim for loss incurred or total disability (as defined in the Policy) commencing after two years from the Effective Date of this Policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this Policy.
'D45 436738
'Incontestability.--This policy will be incontestable, except for non-payment of premium, after it has been in force during the lifetime of the insured for two years from the date of issue.'
On June 11, 1971 plaintiff insurance company filed a complaint seeking cancellation and rescission of the policies on the grounds that defendant in the policy applications had made numerous misrepresentations as to his health and medical history and had plaintiff insurer known the true facts, it would not have issued the policies. Thereafter, plaintiff-appellant moved for summary judgment. A hearing was held thereon, after which the court on October 4, 1972 entered its order denying the motion on the grounds that plaintiff had not filed its suit within the two (2) year contestability period. On January 30, 1973 the court entered final summary judgment in favor of defendant and found that plaintiff was not entitled to cancel or rescind the insurance policies because they became incontestable on June 11, 1971, the date the suit ws filed.
Appellant contends that the court below...
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