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

Decision Date14 December 1976
Docket NumberNos. 75--1979,75--1980,s. 75--1979
Citation340 So.2d 957
PartiesSUN LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Robert EVANS, Appellee (two cases).
CourtFlorida District Court of Appeals

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...

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24 cases
  • Hepp v. Paul Revere Life Ins. Co.
    • United States
    • U.S. District Court — Middle District of Florida
    • 31 Julio 2015
    ...from the terms of the policy and the evidence adduced at trial."), aff'd, 86 F.3d 1168 (table). See also Sun Life Ins. Co. of America v. Evans, 340 So.2d 957, 959 (Fla.Dist.Ct.App.1976).Defendants argue that (1) Plaintiff devoted "about twice as much time to his non-invasive cardiology prac......
  • Ames v. Provident Life and Acc. Ins. Co., 93-14010-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • 26 Agosto 1994
    ...cases do not mandate a finding that Dr. Ames was totally disabled as a matter of law. As the court in Sun Life Ins. Co. of America v. Evans, 340 So.2d 957, 959 (Fla. 3rd DCA 1976), In Equitable Life Assurance Society of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934), the Florida......
  • Wal-Mart Stores, Inc. v. McDonald
    • United States
    • Florida District Court of Appeals
    • 11 Junio 1996
    ...a matter of law, no proper view of the evidence could possibly sustain a verdict for the non-moving party. Sun Life Ins. Co. of America v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976). The law in Florida is settled that if a lessor (such as Merrill Crossings) surrenders possession and control of......
  • Groff v. Paul Revere Life Ins. Co.
    • United States
    • U.S. District Court — Southern District of Florida
    • 4 Agosto 1993
    ...of the occupation, the capabilities of the insured and the circumstances of the particular case. Sun Life Insurance Company of America v. Evans, 340 So.2d 957, 959 (Fla.Dist.App.1976) (citing Equitable Life Assurance Society of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (Fla.1934))......
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