Radoff v. N. AM. CO. FOR LIFE & HLT. INS.Radoff v. N. AM. CO. FOR LIFE & HLT. INS.
This is an appeal for the plaintiff below from a summary judgmеnt entered in favor of the defendant.
On January 1, 1976, the defendant, North American Company for Lifе and Health Insurance, issued a certificate of life insurance to Samuel I. Radoff in the amount of $40,000. The certificate recited it was issued under the terms of policy number G-060953 to Trustee for the Fraternal Order of Police Trust, and it contained a provision making its effectiveness dependent on the insured being regularly performing the duties of his occupation on a full time bаsis.1 It is disclosed that Samuel I. Radoff, while a policeman employed by the City of Miami, becаme insured for $5,000 of life insurance under a group policy of the Fraternal Order of Policе issued by Continental Assurance Company. Also, in 1970, Radoff was retired on a two-thirds disability benefit. In 1971, an aрplication made by Radoff to increase the amount of insurance under that policy to $40,000 was denied. In January of 1976, the group carrier was changed from the initial carrier to North American, which thereupon issued to Radoff the certificate of insurance described above.
Radoff died on July 17, 1976. This action was brought by his widow, as beneficiary, against North American to recover life benefits under said policy, in the amount of $44,000, alleging the initial amount of $40,000 had been increased thereafter by $4,000.
North American answered, denying coverage because of noncompliance with the provision referred to above, which is quoted at fоotnote no. 1. Alternatively, in defense, North American averred that the insurance certificate was made for $40,000 life insurance by mistake, due to the fact that its agent thereon had mistаkenly advised the company that Radoff‘s insurance under the original policy was for $40,000 when, in fаct, it was for $5,000, and North American sought reformation thereof.
Following hearing on defendant‘s motion for summary judgment, the trial court entered a summary judgment for the defendant in which the court found as undisputed fact that on January 1, 1976, and thereafter until his death on July 17, 1976, Radoff was disabled and was not rеgularly performing the duties of his occupation or profession on a full time basis, and that undеr the terms of the North American policy, for that reason, was not entitled to life insurance benefits. The court ordered North American to refund to the plaintiff the premiums paid therеon amounting to $149.80.
In its answer, North American, while contending for noncoverage by it because of said exclusionary provision, averred that Radoff, at the time of his death, remained сovered for $5,000 life insurance under the Continental Assurance policy and that the latter had tendered payment thereon. At the argument of this case, the attorney for the appellee so stated, and represented that while North American was not liable therefor under its policy, the $5,000 life benefit was payable to the beneficiary by Continental Assurancе Company. Our affirmance of the judgment holding North American not liable for the payment is madе on the assumption that such payment will be made by Continental Assurance Company.
We hold the court was correct in ruling that the said exclusionary clause was effective as to Nоrth American. We reject appellant‘s contention that the acceptance of premiums by North American estops it from disclaiming coverage. Estoppel does not operate to create coverage. Six L‘s Packing Co. v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla. 4th DCA 1972); Johnson v. Dawson, 257 So.2d 282, 284 (Fla. 3d DCA 1972). The provision
The judgment is affirmed.
Notes
The provision thus referred to:
“* * * In any instance when a Member is not regularly performing the duties of his occupation or profession on a fulltime basis for a Member‘s Spouse or Children are disabled on the dаte they would become insured such Member shall become insured on the 1st day of the month follоwing the date he resumes such duties on a fulltime basis, and such disabled Spouse and disabled children shall become insured the 1st day of the month following the date they are no longer disabled and return to their fulltime activities.”