251 So. 2d 348 | Fla. Dist. Ct. App. | 1971
The decedent Bertrand contracted to, and did, procure life insurance for the benefit of, and to secure his lease with, the appellant Industrial Park. The issues in the case are whether he withheld or concealed material information relating to health in his application for insurance with appellee Loyal American, and/or whether Loyal American is chargeable, by waiver or estoppel, with knowledge of such matters. Loyal American denied coverage, Bertrand having died within the contesti-bility period, and this suit followed resulting in a summary judgment in favor of Loyal American.
In entering the summary judgment, the trial judge correctly found that the decedent made material misrepresentations in his final application for insurance. These misrepresentations concerned nondisclosure of a diabetic condition, which had been diagnosed approximately a month before the final application for insurance, and nondisclosure of the doctor’s consultations resulting in that diagnosis. Bertrand failed to disclose these matters notwithstanding that the application form asked for the information. The trial judge further found these misrepresentations sufficient as a matter of law to bar appellant’s recovery
It was, of course, the burden of Loyal American to establish a record sufficient to exclude all inferences contrary to its assertion of reliance.
Now, Joe’s Creek also appeals from a summary judgment entered in favor of the appellee Auld, who was the insurance agent who procured the disputed policy. Auld was sued jointly with Loyal American for negligently failing to procure a valid life insurance policy. We agree with the trial judge that, as to defendant Auld, no material issues remain, and we consequently affirm the summary judgment as to him.
Affirmed in part, reversed in part.
. See, e. g., Williams v. Lake City (Fla.1953), 62 So.2d 732; Champion Map Corp. v. Chamco, Inc. (Fla.App.1970), 235 So.2d 50; and Ramagli Realty Co. v. Speier (Fla.App.1959), 110 So.2d 71.
. See § 627.01071(1). Cf., World Insurance Company v. Posey (Fla.App.1969), 227 So.2d 67.
.See, e. g., Columbian Nat. Life Ins. Co. v. Lanigan (1944), 154 Fla. 760, 19 So.2d 67; Security Life and Trust Co. v. Jones (Fla.App.1967), 202 So.2d 906; and Feeht v. Makowski (Fla.App.1965), 172 So.2d 468.