Southwestern Life Ins. Co. v. Gerson

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; CARROLL
• Citation: Southwestern Life Ins. Co. v. Gerson, 187 So.2d 63 (Fla. App. 1966)
• Decision Date: 03 May 1966
• Docket Number: No. 65--857,65--857
• Parties: SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Sheldon GERSON, Gary R. Gerson, Donald Gerson and Annette Gerson, as heirs-at-law and next of kin of Harry J. Gerson, and Annette Gerson, his wife, Individually, Appellees.

Page 63

187 So.2d 63

SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Sheldon GERSON, Gary R. Gerson, Donald Gerson and Annette Gerson, as heirs-at-law and next of kin of Harry J. Gerson, and Annette Gerson, his wife, Individually, Appellees.

No. 65--857.

District Court of Appeal of Florida, Third District.

May 3, 1966.

Rehearing Denied June 21, 1966.

Smathers & Thompson and G. Morton Good, Miami, for appellant.

Horton & Schwartz, Miami, for appellees.

Before CARROLL, BARKDULL and SWANN, JJ.

PER CURIAM.

This is an interlocutory appeal by the plaintiff below, Southwestern Life Insurance Company, seeking reversal of an order of the chancellor which transferred the cause to the law side of the court and granted a trial by jury of the issues raised by the pleadings.

The appellant issued a major medical insurance policy which covered Harry J. Gerson and his wife Annette Gerson. Subsequently, Mr. Gerson, individually, sued the appellant in the Civil Court of Record of Dade County to recover payments under the policy. The appellant defended the claim on the ground that Gerson had made material misrepresentations in his application for the policy. During the pendency of this suit, Mr. Gerson died. Later, Mrs. Gerson became ill and incurred expenses which allegedly would have been covered by the policy.

While the Civil Court of Record action was pending, the appellant brought this action, in chancery, against Mrs. Gerson, individually, and Sheldon Gerson, Gary R. Gerson, Donald Gerson, and Mrs. Gerson, as heirs-at-law of Mr. Gerson. This suit sought to cancel the policy as to both Mr. and Mrs. Gerson on the ground of misrepresentation in the application, and to enjoin the prosecution of the Civil Court of Record action and any future proceedings which might be brought either by the heirs of Mr. Gerson or by Mrs. Gerson to recover for her own expenses. An injunction to that effect against all the appellees was entered by the chancellor.

The appellees filed a compulsory legal counterclaim against the appellant to recover money damages in excess of $5,000.00 for the alleged breach of the policy. It was claimed that the appellees had incurred expenses, within the coverage of the policy, which the appellant refused to pay.

After the case had been set for final hearing in chancery, appellees moved to strike the notice of final hearing and to set the case instead for jury trial. The chancellor granted the motion and ordered that a jury trial be granted on the issues involved in the proceeding, and for that purpose, transferred the cause from the chancery to the law side of that court. The appellant has taken this interlocutory appeal from that order.

The appellees rely on the recent case of Hightower v. Bigoney, Fla.1963, 156 So.2d 501, as authority for the proposition that defendants who file a compulsory legal counterclaim in an equitable action do not waive their rights to a jury trial Of the issues raised by the compulsory counterclaim, if a jury trial is timely demanded. That case, however, is not authority to allow the transfer of the entire cause in every equitable action to the law side of the court for a...