Underwriters Nat. Assur. Co. v. Harrison, 75--1312

• Decision Date: 21 September 1976
• Docket Number: No. 75--1312,75--1312
• Citation: 338 So.2d 58
• Parties: UNDERWRITERS NATIONAL ASSURANCE COMPANY, a Foreign Corporation, Appellant, v. Earle A. HARRISON, Appellee.
• Court: Florida District Court of Appeals

Page 58

338 So.2d 58

UNDERWRITERS NATIONAL ASSURANCE COMPANY, a Foreign Corporation, Appellant, v. Earle A. HARRISON, Appellee.

No. 75--1312.

District Court of Appeal of Florida, Third District.

Sept. 21, 1976.

Rehearing Denied Nov. 1, 1976.

Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant.

Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee.

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

PER CURIAM.

Appellant, defendant below, appeals a final judgment entered by the trial court pursuant to a jury verdict for appellee, plaintiff below.

Appellee filed a complaint against appellant seeking to recover benefits under a disability insurance policy and for attorney's fees. Appellant denied that any benefits were due under the policy because it had been rescinded and because the contract was void by reason of certain material misrepresentations made by appellee in his application for the policy.

Subsequently, the case went to trial and, after appellant's motions for a directed verdict were denied, the jury returned a verdict for appellee. Pursuant to this verdict, a final judgment, dated June 19, 1975, was entered in favor of appellee. From the judgment, appellant appeals.

Appellant contends that there was no competent substantial evidence adduced from which the court could have concluded that the misrepresentations made by appellee were not material to the risk accepted by appellant or that appellant did not rely substantially upon appellee's representations in the application in executing the policy of insurance.

Appellee contends that the trial court acted with propriety by entering a final judgment upon the jury verdict and by denying appellant's motions for a directed verdict and new trial because the questions of fact were properly submitted to the jury and no error was committed by denying appellant's motions.

Appellant's basic argument on appeal is that material misrepresentations were made by appellee in the application for the insurance policy and that, had it known of appellee's prior medical history, it would not have issued the policy. Among other authorities, appellant cites Section 627.409, Florida Statutes (1975), in support of its position.

The general rule in Florida is that the answers given or the representations made by an insured on an application for insurance, when disputed, present questions of fact to be resolved by a jury. See, e.g., Hyman v. Life Insurance Company of North America, 481 F.2d 444 (5th Cir. 1973) (decided upon Florida law); Traveler's Insurance Company v. Zimmerman, 309 So.2d 569 (Fla.3d DCA 1975); and Lamm v. Prudential Insurance Company of America, 179 So.2d 238 (Fla.3d DCA 1965). This general rule is applicable to the instant appeal and the factual issues pertaining to appellee's...