330 So. 2d 119 | Fla. Dist. Ct. App. | 1975
Lead Opinion
Appellant herein, plaintiff below, seeks reversal of a final summary judgment in favor of defendant-appellee. After consideration of the pleadings, the affidavit of plaintiff, the depositions of two physicians taken on behalf of each of the parties, and the motions for summary judgment filed by both parties, the trial court granted appellee’s motion, holding that appellant is not entitled to recover any further benefits under his insurance policy due to the fact that his disability did not result solely from accidental bodily injury occurring subsequent to the effective date of the policy.
We have carefully examined the record on appeal and the briefs submitted by the parties. Upon our consideration thereof, we conclude that the record does not reflect any genuine issues of material fact which stand in the way of judgment as a matter of law, and the entry of summary judgment in appellee’s behalf was proper. The trial court had before it the depositions of two physicians, who had previously treated appellant, concerning the nature and cause of appellant’s present disability. The testimony of each physician corroborated the other to the effect that
Affirmed.
Rehearing
ON PETITION FOR REHEARING
On February 25, 1975, our opinion was filed in this cause. Thereafter, petition for rehearing was filed by appellant calling attention to § R 8(b) of the insurance policy which provides as follows:
“(b) No claim for benefit provided by this policy as a result of disability commencing after two (2) years from the policy date hereof shall be reduced or denied on the ground that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability which had existed prior to the effective date of this policy.”
Appellant contends in the petition for rehearing that appellee does not have the right to contest the claim for additional benefits under the policy on the basis that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability had existed prior to the effective date of the policy.
The petition for rehearing assumes a new ground or position from that taken in the original argument and briefs upon which this cause was submitted and is, therefore, in violation of Rule 3.14, F.R. App.P. Further, we are unable to determine that this contention was made in the trial court. In spite of the violation of the aforesaid rule, however, in the interest of justice, we temporarily remand this cause to the trial court for its consideration of appellant’s contention and its determination of whether or not its final summary judgment should or should not be modified.
Upon the trial judge’s entry of a supplemental order in this cause, it is directed that the Clerk of the Circuit Court, First Judicial Circuit of Florida, forward a certified copy of same to this court. The parties hereto will be allowed 10 days from the filing in the circuit court of the trial judge’s supplemental order within which to each file a supplemental brief. Thereafter, this court will make such further ruling on the petition for rehearing as it may deem appropriate.
