Wrongful Denial of Life Insurance Claim Based on Diabetes Disclosure on Application

Sometime in May 2017 a couple from the Gainesville area contacted us about a denied life insurance claim. The husband was a beneficiary of a $15,000 life insurance policy in which his aunt was the insured. The client’s aunt passed away in early 2016. After a claim was submitted for the death benefit, the carrier denied payment of the proceeds and returned about $750.00 in prior premium payments to the client. Obviously, the client was not satisfied.

Wrongful Denial of Life Insurance Claim Based on Diabetes Disclosure on ApplicationThe carrier took the position that the client’s aunt failed to fully disclose her medical condition on the application. The aunt had a long history of diabetes and answered “yes” to the question on the application about her chronic diabetic condition. Still, the carrier said her response was not sufficient and that she did not disclose the extent of her diabetes. For instance, the carrier said that the insured did not disclose that she had peripheral neuropathy and diabetic foot ulcers, indicating that she had been actively treated for uncontrolled diabetes.

We initially responded with a detailed letter to the insurance company. We argued to the insurance company that it was wrong in denying the claim because the client’s aunt had adequately disclosed her diabetes on the application. We based our position on the factual disclosures on the application itself and Florida case law. We further argued to the carrier that it had a duty to reasonably investigate the insured’s health at the time of the application, and that it completely failed to do so.

Within about 3 – 4 weeks, the carrier responded to us and agreed to pay the full amount of the death benefit, plus interest. The client was very pleased and we did not even have to go to court to resolve the claim. Our Firm often handles cases like these where the carrier should have made payment of the death benefit but fails to do so.

If you are in the Gainesville, Ocala or Orlando area and you are in need a life insurance lawyer to resolve your denied claim, please contact our Orlando life insurance lawyer for a free consultation and full evaluation of your claim. You can reach us by phone or email.

Elements of a Life Insurance Contract in Florida

Elements of a Life Insurance Contract in FloridaLife insurance contracts are governed and regulated by the Florida Insurance Code. These contracts must have certain provisions in them as required by Florida law. The standard provisions of a life insurance policy contract will include the following:

  • Entire Contract Clause. This clause generally says that the insurance policy and the application submitted by the insured to procure the insurance constitute the entirety of the insurance policy.
  • Grace Period. This clause in the life policy gives the insured a period of at least 30 days to pay the premium due (sometimes more) from the due date. The time period given to pay the premium is called the “grace period.”
  • Incontestable Clause. In simple terms, this clause means that the insurer cannot contest the policy after it has been in force for at least two years while the insured is alive. In essence, the incontestability clause limits the time in which the insurance company can seek to void the policy (two years) based upon claims involving misrepresentation, fraud, concealment and the like. Accordingly, even if the insured committed a misrepresentation on the application, if the policy was in force for more than two years while the insured was alive there can be no contest by the insurer against the policy.
  • Secondary Notice. The requirement of secondary notice specifically applies to policy holders in Florida who are 64 years of age or older. In short, for any life insurance policy which has been in effect for at least one year covering a person who is at least 64, the carrier is required to send notice of an impending lapse of the policy at least 21 days before the effective date of lapse of the policy. In addition, the carrier must send a copy of the notice to a secondary addressee if such person has been designated in writing by name and address by the policy owner.
  • Misstatement of Age or Sex. This provision of the policy provides that if the age or sex of the applicant for life insurance is found to be misstated, the amount payable under the policy may be “adjusted” by the carrier to reflect the amount which the premium payment would have purchased according to the real age or sex of the applicant. In other words, this provision allows the policy to be corrected rather than completely voided by the carrier if there turns out to be a misstatement of the applicant’s age or sex.
  • Policy Loan. Some life insurance policies allow the insured to borrow funds against the cash value of the policy. Typically, loans paid to the insured will reduce the cash value of the policy. If there is not a sufficient amount of funds in the policy’s cash account to cover the premium costs, the policy could lapse.
  • Reinstatement. If a life insurance policy lapses due to nonpayment of premium, the law requires the insurer to permit the insured to “reinstate” within a specific period of time. However, all back premiums will have to be paid and the insured may have to go through a new underwriting process to get approval.
  • Interest Payable on Death Claims. The law requires interest to be paid by the insurer on death claims at an interest rate prescribed by law.

If you need the services of a life insurance lawyer in the Hollywood or Fort Lauderdale area, or in any other part of Broward County, please contact our Law Firm for a free and thorough consultation. Our Fort Lauderdale life insurance attorney specializes in denied life insurance claims.

Policy Lapse Claims

To keep your life insurance policy in force, you generally must pay premiums to the carrier on a regular basis. Premiums will normally be paid monthly, quarterly or according to some other level of frequency. If you fail to make a premium payment, your policy can lapse and coverage will be lost.

Policy LapseWhen a premium payment is due, Florida law provides that the insured must be afforded a grace period of at least 30 days in which to pay the premium after the due date. This grace period rule is codified under Section 627.453, Florida Statutes. If the premium payment is not paid, and the grace period has fully run its course, the policy will lapse.

An issue that often arises in lapse cases is whether or not the insured was entitled to receive notice from the carrier of the obligation to make a premium payment or of the impending cancellation of the policy. Generally, the delivery of a notice of premium due or of an impending cancellation and the manner in which the specific notice is to be furnished, if at all, are governed by the policy terms. The interpretation of policy terms can often be a point of dispute in litigation.

In Best Meridian Insurance Company v. Tuaty, 752 So.2d 733, the insurance carrier alleged that it had records of sending several notices to the insured of his nonpayment of premium on a life insurance policy. A notice of cancellation was eventually sent to the insured in December 1995. A few months later, though, the insured sent notice to the carrier to change the beneficiary of the policy and the carrier processed and confirmed the beneficiary change (even though the carrier had apparently cancelled the policy a few months earlier). When the insured died in April 1996 the carrier denied the claim saying that the policy had been canceled due to nonpayment of premium.

The beneficiary, however, argued that the carrier never provided to the insured the required notice of nonpayment of premium. The issue in the case was whether the notice was effectively delivered. The insurance policy in the Tuaty case provided that notices were deemed delivered when mailed. The Court interpreted the notice provision to mean that notice to the insured was deemed delivered when mailed, even if the insured did not actually receive the notice. In other words, the carrier only had to prove with sufficient evidence that the required notices had actually been mailed to the insured.

In Aetna Insurance Company v. Settembrino, 324 So.2d 113, however, the court ruled that the cancellation of a policy had been based upon actual receipt (not mailing). Specifically, the issue concerned the effective date on which a fire insurance policy had been cancelled by the insurer when it gave 10 days’ written notice of cancellation to its insureds. The carrier had argued that the policy was effectively cancelled 10 days from the date of mailing of the notice. The insureds argued, however, that the policy was effectively cancelled 10 days from the date of receipt of the notice, which would have lengthened the coverage protection under the policy. The court ruled in favor of the insureds. Since the policy did not specify the method of the giving of written notice, the court reasoned that the effective date of cancellation is to be determined based on the date of receipt of the notice by the insured.

If your carrier denied coverage because your policy has purportedly lapsed, please contact the law firm of Joseph J. Rosen, P.A. for a thorough assessment of your claim. We will evaluate your insurance claim at no cost to you.

Accidental Death Claims in Florida

Accidental life insurance is the kind of insurance that pays out the death benefit where the insured dies from an accident-causing injury. It sounds easy enough, but accidental death benefit claims can often be complicated. Here’s a possible scenario:

The insured dies soon after an unfortunate accident, like a vehicle crash. Later on, the insured’s relatives seek payment of the accidental benefits from the insurance carrier. But it turns out the insured had a pre-existing medical condition, such as heart disease, which the carrier says was the real cause of the insured’s death. The carrier then denies benefits because there was no “injury”. What does the law in Florida say about this?

Accidental DeathThe cases in Florida illustrate two types of accidental injury policies. The first type of accidental death policy contains a “caused solely by accident” language. This language effectively says that death benefits will be paid where the injury results directly, independently, and exclusively from other causes. When the policy only has this type of language, the law provides that that the insurance carrier will be liable to pay benefits if the accident is the moving, sole, and proximate cause of the death, even if there may have been a pre-existing disease or physical infirmity which contributed to the death.

The case of Anglin v. Nationwide Mutual Insurance Company, 306 So.2d 147, illustrates the caused solely by accident situation. In that case, a deputy sheriff got in a scuffle with a driver on the side of the road. The deputy was hit by the driver multiple times causing him eventually to fall over and die at the scene. It turned out that the deputy had coronary artery disease, and the pathologist at trial testified that the deputy had an immediate heart attack that was brought on by the external injuries. The issue in the case was whether the death was caused by accident, thus allowing benefits to be paid. The trial court ruled in favor of the beneficiary and the appeals court affirmed the ruling. The policy did not contain a sickness exclusion clause and only had the “solely by accident” language, permitting the court to rule that the factual issue of whether an accident had occurred was properly decided by the jury in favor of the claimant.

The other type of accidental injury policy is one that contains an express exclusion clause. The exclusion clause will prevent liability where the loss or death results directly or indirectly from any bodily infirmity, sickness or disease. These policies are generally less favorable to the claimant’s case.

The sickness exclusion clause type of policy is illustrated in Edwards v. Bankers Life and Casualty Company, 381 So.2d 761. In this case, the claimant sought payment of disability benefits from the carrier. The carrier denied the disability benefits because it alleged that the claimant’s present injury was a recurrence of a prior infirmity. There was an exclusion clause in the disability policy which precluded recovery for a loss resulting from any bodily infirmity, sickness or disease. Since the appeals court found that the undisputed evidence revealed that the claimant’s pre-existing infirmity was a contributing factor to his present disability, it affirmed the trial court’s ruling in favor of the carrier.

What if the use of alcohol contributes to the insured’s death? Is the claimant still entitled to recover the accidental death benefit? In Buck v. Gulf Life Insurance Co., 548 So.2d 715, the insured drowned when his car rolled off the road and overturned into a canal. At the time of the incident the insured had a high blood alcohol level. The carrier denied accidental death benefits asserting that the insured’s death did not result from accident but from his use of alcohol, which it considered to be an “infirmity” subject to the sickness exclusion in the policy. The court, however, interpreted the sickness exclusion narrowly, concluding that alcohol or drug use was not subject to the policy’s exclusion in the absence of language that clearly evidenced an intention to exclude such conduct (alcohol use) from accidental coverage.

If your life insurance benefits were denied under an accidental death policy you should seek the advice and assistance of an experienced Florida life insurance lawyer. Please call the law firm of Joseph J. Rosen, P.A., for assistance with your insurance claim.

Misrepresentation on the Application: The Knowledge and Belief Standard

An insurance carrier will often deny payment of life insurance benefits because there is an alleged misrepresentation on the life insurance application. Usually the misrepresentation relates to an undisclosed or misrepresented medical condition. So the question arises,

What is the legal standard for denying death benefits under these circumstances?

Knowledge and Belief StandardIn Florida, there are two recognized legal standards involving misrepresentation claims. The default (“statutory”) standard requires the carrier to prove that the misrepresentation on the application was material to the underwriting decision. If the misrepresentation is found to be material to the underwriting decision, then the insurance carrier can deny benefits and void the policy.

This “materiality” standard, which is very stringent and insurer-friendly, is based upon the insurance application misrepresentation statute as found under Section 627.409, Florida Statutes. According to Florida law, a misrepresentation of a medical condition on an insurance application will be material if the insurer, had it known the true facts at the time, would not have issued the policy or would have issued the policy at a different premium rate. To put it more simply, a misrepresentation on an application is material when the misstatement will affect the risk of insurance.

In practical terms, the materiality standard is strict and is generally not favorable to insurance claimants.

The other standard for deciding misrepresentation claims is the “knowledge and belief” standard. This standard is less stringent than the “materiality” standard, and is more favorable to the claimant. The knowledge and belief standard, which has been recognized under Florida case law for many years, derives from the language of the application itself. That language usually provides that the applicant has testified to the truth of his statements to the best of his knowledge and belief.

In practical terms, the knowledge and belief standard will require the insurer to prove that the claimant made an intentional misrepresentation on the application. That is a much harder task to accomplish because the insurer has to prove the existence of a knowing misrepresentation, in other words, a lie.

In Green v. Life & Health of America, 704 So.2d 1386, a case decided by the Supreme Court of Florida, the knowledge and belief standard came directly into play. In that case the applicant, Mr. Green, applied for home health insurance and answered “no” to a question on the application which asked if he had had kidney disease. When Mr. Green made a later claim on the policy the insurance company denied coverage saying that his medical records revealed chronic renal failure. But Mr. Green claimed to have had no prior knowledge of that condition, and his doctor testified that it was never actually communicated to Mr. Green that he had kidney disease. Under these facts, the Supreme Court of Florida ruled that Mr. Green did not make any misstatements on the insurance application since he had answered the questions to the best of his knowledge and belief.

But as favorable as the knowledge and belief standard may be to the claimant it has its limits under the law. Cases in Florida will generally not permit a recovery if the insured denies knowledge of a medical condition when the underlying facts contradict the asserted lack of knowledge. In Miguel v. Metropolitan Life Insurance Company, No. 06-11491 (11 th Circuit 2006), the insured went to the hospital for chest pain and shortness of breath. When she applied for life insurance benefits only a few months later, the insured stated in the application that she had never been treated for shortness of breath or chest pain. The court denied insurance benefits to the claimant on the basis that the insured’s answers on the application were clearly contradicted by the underlying facts. In other words, the court found that the insured must have known that the statements she made on the application were inaccurate.

In Casamassina v. United States Life Insurance Company, 958 So.2d 1093, the appeals court overturned the trial court’s summary judgment in favor for the insurance company. Here the insured applied for life insurance and died a few weeks later due to a brain tumor. On the application the insured disclosed that he was having “headaches” but did not get much more specific than that. The insurance company denied the life insurance benefits saying that the insured failed to disclose other associated conditions such as nausea, vomiting, decreasing visual acuity and a doctor’s order to take an MRI. In short, the court concluded that the insured’s responses on the application, although not entirely complete, were sufficient to create a jury question as to whether there was a misstatement on the application based on the knowledge and belief standard.

Please contact the Law Firm of Joseph J. Rosen, P.A. for a free consultation on your denied life insurance claim.  Our Firm assists insurance claimants in the Coral Gables, Hialeah and Miami areas.  Feel free to contact our Miami life insurance lawyer for legal help.

What is a Florida LLC?

Florida LLCThis article discusses some of the basic aspects of a Florida limited liability company, or LLC. If you’re starting a new business, one of the most attractive legal entities to use as the vehicle to manage and operate your business is the LLC. A number of benefits are available to the owner, including flexibility of management and capital structuring, limited liability protection, tax benefits, and more. Take into consideration some of the matters we discuss below about the Florida LLC.

LLC’s are essentially governed by statute and the internal documents of the entity. Typically those documents are the articles of organization and the operating agreement. The law which governs LLC’s is the new Florida Revised Limited Liability Company Act under Chapter 605, Florida Statutes (the “LLC Act”). Any LLC created after January 1, 2014 is governed by the new LLC Act and its statutory provisions.

The first thing to consider is forming your LLC. Formation is accomplished by filing “articles of organization” with the Florida Department of State, Division of Corporations. You can do the filing on your own, but it is probably better to have an attorney handle the filing because there can be important legal consequences to the filing of your entity and you will want to get it done right. The law requires the LLC to have at least one member for its formation. The act of formation can be done by the member or the LLC’s authorized representative. With respect to its management structure, the LLC is either managed by its members or a manager or managers. In general, smaller LLC’s will be directly managed by their members, or one of the members will serve as the designated manager. An LLC is presumed to be “member-managed” unless the company’s governing documents state otherwise.

A person who becomes a member of the company typically makes a “contribution” of capital to the LLC. A contribution is usually an investment of money or property into the LLC. However, a person can be a member of the company without making a contribution of money or property to the LLC.

The most important document affecting the LLC is the operating agreement. This is the document which essentially governs the affairs of the company and manages the relations between and among the members and the LLC. The law does not require you to have an operating agreement, and if you are a one-member LLC you really can do without one. But if your LLC has multiple members the need for an operating agreement becomes much more compelling. Since disputes can easily arise between members over management, contributions, distributions, profit sharing, transfers of membership interests, etc., the operating agreement will function to clarify these matters and help avoid conflict. The company itself, and the members and managers are bound by the terms of the operating agreement.

If you want to incorporate your own Florida limited liability company or “S” corporation, please feel free to contact us for assistance. We can assist with all the paperwork necessary to get your business up and running.