Sun Life Ins. Co. of America v. Evans, s. 75--1979

• Decision Date: 14 December 1976
• Docket Number: Nos. 75--1979,75--1980,s. 75--1979
• Citation: 340 So.2d 957
• Parties: SUN LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Robert EVANS, Appellee (two cases).
• Court: Florida District Court of Appeals

Page 957

340 So.2d 957

SUN LIFE INSURANCE COMPANY OF AMERICA, Appellant, v.Robert EVANS, Appellee(two cases).

Nos. 75--1979, 75--1980.

District Court of Appeal of Florida, Third District.

Dec. 14, 1976.

Stephens, Thornton & Schwartz and John Edward Herndon, Jr., Miami, for appellant.

Koltun & Tobias, Coral Gables, for appellee.

Before BARKDULL, C.J., and HENDRY and NATHAN, JJ.

NATHAN, Judge.

These are consolidated appeals by the defendant, Sun Life Insurance Company of America, from a final judgment on a directed verdict in favor of the plaintiff, Robert Evans, and an order awarding costs and attorneys fees in favor of the plaintiff, in an action to recover benefits claimed to be due Evans under a policy of disability insurance issued by Sun Life in 1969.The terms of the policy provide that in the event of total disability, Sun Life will pay to the insured $400.00 per month for a period of sixty (60) months.

The record reflects that Evans was and is the owner of an air conditioning duct installation business.Evans previously did all of the duct installation work himself, with one helper to hand him tools and materials.However, in 1972, Evans sustained a serious knee injury in a motorcycle accident, and when he was able to return to work, he could act only in a supervisory capacity.He could no longer bend his left knee fully to perform duct installation work which in large part involves climbing ladders and crawling in attics and small spaces.His former helper now performs all installation work, and a new helper has been hired to assist him.

Sun Life paid benefits to Evans for a number of months, and then refused to continue payments.Evans proceeded to file this suit.A jury trial was held, during which the judge determined that Evans was totally disabled, and at the close of the defendant's case, directed a verdict for plaintiff Evans and discharged the jury.The judge stated his reasons on the record:

'The insurance policy which is sued upon in this case provides that the insured is entitled to recover for a total disability if he is unable to perform the usual functions of his occupation, or words to that effect.

'The law of Florida is that if an insured cannot perform any material, important or substantial act, which he usually or ordinarily performed in the course of an occupation, then the terms of the policy are fulfilled.In this case, as you heard there was no dispute but that Mr. Evans could not perform probably the predominant portion of his usual occupation after the accident.'

Final judgment was entered on the directed verdict, awarding Evans the full total disability benefits due and owing from the date of the last payment, up to and including the trial date.Six days later, an order was entered taxing costs against Sun Life, and awarding attorneys fees to plaintiff's attorney.

One of the defendant's points on appeal is that the trial...