Florida/Georgia Personal Injury & Workers Compensation

...The mother brought suit for (I) declaratory judgment; (II) reinstatement of the insurance contract; (III) breach of contract; and (IV) outrageous conduct causing severe emotional distress. The mother asserted that the insurance policy was in conflict with section 627.607, Florida Statutes (Supp.1992)....

...n any event no fraudulent misstatements. The trial court granted summary judgment for the insurer and the mother has appealed. II. The parties agree that under Florida law, this medical insurance policy must have an *749 incontestability clause. See § 627.607, Florida Statutes (Supp.1992)....

...(b) Preexisting Conditions: No claim for loss incurred or disability starting after 2 years from the issue date will be reduced or denied because a sickness or physical condition, not excluded by name or specific description before the date of loss, had existed before the effective date of coverage. § 627.607(2), Fla....

...d or disability starting after 2 years from the issue date will be reduced or denied because of a sickness or physical condition, not excluded by name or specific description before the date of loss, had existed before the effective date of coverage § 627.607(2), Fla....

...The summary judgment is reversed and the cause remanded with directions to enter a declaratory judgment as follows: (1) The insurance policy as written violates Florida law. (2) The insurance policy must be interpreted, and deemed amended, to include *753 the incontestability clause set forth in subsection 627.607(2), Florida Statutes (Supp.1992). (3) The first paragraph of the incontestability clause presently set forth in the insurance policy, which is substantially identical to subsection 627.607(1), Florida Statutes (Supp.1992), must be stricken out of the insurance policy. (4) Under the terms of the incontestability clause set forth in subsection 627.607(2), Florida Statutes (Supp....

...Reversed and remanded. NOTES [1] The 1992 version of the statute was in force at the time this policy was renewed. Insofar as pertinent here, the statutory alternatives were the same under the version of the statute in force at the time the policy was issued. See § 627.607, Fla. Stat. (1989). [2] The statute states: 627.607 Time limit on certain defenses.— (1) The contract shall include the following provision: "Time Limit on Certain Defenses: After 2 years from the issue date, only fraudulent misstatements in the application may be used to void the policy or d...

...v. Carroll, 485 So.2d 406, 409 (Fla.1986). Even a nonintentional misstatement can bar recovery if material to the risk assumed. Id. The majority of the cases relied on by the insurer were decided under that statute. The present case is controlled by section 627.607, and the body of law relating to incontestability clauses....

...e kyphosis. Obviously then, the summary judgment must be reversed as to the question of the Insurer's liability for the ulnar nerve palsy treatment since triable issues of fact exist with regard thereto. Affirmed in part, reversed in part. NOTES [1] § 627.607, Fla....

...Gold, 194 So.2d 272 (Fla. 1967); Hulse v. Blue Cross/Blue Shield of Fla., Inc., 424 So.2d 191 (Fla. 5th DCA 1983); Zautner v. Liberty Mut. Ins. Co., 382 So.2d 106 (Fla. 3d DCA 1980). Second, the incontestability clause of the subject insurance policy, as required by Section 627.607, Florida Statutes (1987), clearly precludes the defendant from raising the affirmative defense that the plaintiffs failed to fully and completely disclose the prior medical treatment and history of the plaintiff Peter DiFranco....

...Stewart's husband, Gregory Stewart, was insured under a life insurance policy issued by Midland. Stewart was the beneficiary of the policy. Gregory Stewart died on November 3, 2001. His death occurred within the two-year contestable period in the policy. See § 627.607, Fla....

...16, 1998)(order granting partial summary judgment). ERMA filed an action against Paul Revere in Miami-Dade County Circuit Court for breach of contract. ERMA argued that Paul Revere could not deny coverage under the policy’s incontestability clause, pursuant to section 627.607, Florida Statutes (2002), because the policy had been in force for over two years when it filed the disability claim....

...s defined in the policy. Both parties filed motions for summary judgment. The court granted ERMA’s motion finding that the incontestability clause precluded Paul Revere from denying coverage, and finding that the policy was ambiguous, contravening section 627.607....

...Reversed and remanded. . Paragraph 1.7 of the policy states: " ‘Sickness’ means sickness or disease that first manifests itself after the Date of Issue while Your Policy is in force.” . The policy’s incontestability clause follows the language of section 627.607, Florida Statutes (2002)....

...or physical condition not excluded by name or specific description before the date of loss had existed before the date of issue." See 1993 Policy at 17 (§ 10.2.b); 1994 Policy at 17 (§ 10.2.b). This clause is mandated by Florida law. See FLA.STAT. § 627.607....

...he had the illness. In November of 1969, the insurer issued a disability policy covering accidental bodily injury occurring during the term of the policy and sickness first manifesting itself during the term of the policy. The policy, as required by § 627.607, contained an incontestability/preexisting conditions clause that is materially identical to the one in § 10.2.b of Mr....

...It first explained under the "great weight of authority ... an incontestable clause in a disability policy does not deprive the insurer from defending on the ground that the particular disability was never within the policy coverage." Id. at 428. Then, turning to the policy language required by § 627.607, it said: This statutory clause only prohibits denials of claims based on the prior existence of claims base don the prior existence of a disease....

...See, e.g., Paul Revere Life Ins. Co. v. Haas, 644 A.2d 1098, 1103-04 (N.J.1994); Jack v. Paul Revere Life Ins. Co., 97 Wash.App. 314, 982 P.2d 1228, 1230-35 (1999). On the other hand, subsequent Florida decisions interpreting the clause required by § 627.607 arguably conflict with Forman, and have failed to even discuss that opinion....

...[3] I do not believe that I need to enter the fray about the continued viability of Forman (and Allen ) under Florida law. Both of those cases interpreted (and addressed the effect of) policies containing only the incontestability/preexisting conditions clause required by § 627.607....

...he policy language presented in those cases. *1380 C. THE LANGUAGE IN MR. McPHEE'S POLICIES Mr. McPhee's policies, as noted earlier, include an additional preexisting conditions clause not required by Florida law. And unlike the language required by § 627.607, and interpreted in Forman and Allen, this additional clause does not contain the limiting phrase "not excluded by name or specific description before the date of loss." This omission is significant, because that limiting phrase was an important factor in the Former Fifth Circuit's interpretation of the clause required by § 627.607....

...Without this limiting phrase, it is difficult, if not impossible, to incorporate the definitions of "injury" and "sickness" into the additional preexisting conditions clause. Because the additional preexisting conditions clause is materially different from the provision required by § 627.607, I cannot accept Paul Revere's argument that this additional clause is also necessarily controlled by Forman and Allen....

...ich medical advice or treatment was recommended by or received from a physician prior to the date of issue) can never be the cause of a covered "injury" or "sickness." Thus, even without the incontestability/preexisting conditions clause required by § 627.607 — which Forman and Allen hold do not provide coverage *1381 — I am faced with an ambiguity in the policies concerning coverage for a disability resulting from a preexisting condition....

...National Found. Life Ins. Co., 551 So.2d 535 (Fla. 3d DCA 1989), the Third District confronted a situation very similar to this one. The health insurance policy in DiFranco contained not only the incontestability/preexisting conditions clause required by § 627.607, but also a separate preexisting conditions clause providing coverage after two years....

...such [policy] has been in force for two years." Id. Based on this conclusion, the Third District ruled that the insurer's affirmative defenses denying coverage "should have been stricken." Id. Consistent with DiFranco, later Florida decisions involving policies with both a § 627.607 incontestability/preexisting conditions clause and a separate preexisting conditions clause have held that once a policy is in effect for two years, there is coverage for losses caused by preexisting conditions....

...nt decisions."), aff'd, 127 F.3d 1096 (3d Cir.1997). Paul Revere's contention that the additional preexisting condition clause is governed by Forman because it is merely a "variation" of the incontestability/preexisting conditions clause required by § 627.607 is not persuasive, as it ignores the need to give effect to every provision in a policy....

...use, and such an extension is unwarranted in light of DiFranco, Kaufman, and Green. [4] III. CONCLUSION My decision here is a narrow one. Although I do not question the interpretation of the incontestability/preexisting conditions clause required by § 627.607 in Forman and Allen, those decisions are not controlling....

...Under settled Florida law, this ambiguity must be resolved in favor of Mr. McPhee, and he is therefore entitled to coverage for his disability even though it resulted from his 1993 accident. A final judgment will be issued by separate order. NOTES [1] Entitled "Time limit on certain defenses," § 627.607 provides as follows: (1) The contract shall include the following provision: "Time Limit on Certain Defenses: After 2 years from the issue date, only fraudulent misstatements in the application may be used to void the policy or deny any cl...