The opinion of the court was delivered by: Andrea M. Simonton United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT
Presently pending before the Court is Defendant's Motion for Final Summary Judgment (DE # 107). This case is referred to the undersigned Magistrate Judge based upon the consent of the parties (DE # 13). This motion is fully briefed (DE ## 123, 132). On November 4, 2010, the undersigned heard oral argument on the motion. Based upon a careful review of the record, after considering the arguments of counsel, and for the reasons stated herein, Defendant's Motion for Final Summary Judgment is granted.
According to the Complaint, Plaintiff, Susan Socas, is a dentist who purchased five disability insurance policies from Defendant, The Northwestern Mutual Life Insurance Company (hereafter "Northwestern"). On September 6, 1995, Dr. Socas was involved in a car accident which, she alleges, rendered her totally disabled. In 2005, Dr. Socas filed a claim for benefits, which Northwestern denied that same year. Subsequently, on February 8, 2007, Dr. Socas filed this lawsuit, claiming that Northwestern had breached the relevant disability insurance contracts (DE # 1).
On March 12, 2007, Northwestern filed its Answer (DE # 3).
This motion followed.*fn1
II. The Parties' Positions
A. Northwestern's Position
Northwestern makes three primary arguments. Initially, Northwestern contends that it is entitled to summary judgment because Dr. Socas cannot establish total disability, as defined in her insurance policies, as she can and does perform some or most of the principal duties of her occupation as a general dentist (DE # 107 at 1-2, 8-15; DE # 132 at 3, 4-10). Next, Northwestern argues that it is entitled to summary judgment because 1) Dr. Socas filed her claim late, ten years after the alleged onset of disability; 2) Dr. Socas has no legally cognizable excuse for her untimeliness and 3) Northwestern has been prejudiced by the delay (DE # 107 at 2, 15-18; DE # 132 at 2, 10-12). Northwestern also submits that Dr. Socas' claim is barred by her failure to provide Northwestern with written proof of her disability within 90 days after the end of each monthly period for which benefits are claimed, or with respect to three of the five policies at issue, no later than one year after the end of each monthly period for which benefits are claimed (DE # 107 at 2, 18-19; DE # 132 at 1-2). Northwestern further claims that Dr. Socas' claim to monthly disability periods prior to November 2001 is barred by the five-year limitations period incorporated into the policies (DE # 107 at 2; 19-20).
Finally, Northwestern argues that Dr. Socas did not receive care for her disability from a licensed physician between October 1996 and August 2005, and that benefits under the policies are only available if the insured is under the care of a licensed physician during the time of her disability (DE # 107 at 3; 20-22; DE # 132 at 2-3; 12-13).
Initially, Dr. Socas contends that she is totally disabled because she can no longer perform all the principal duties of her occupation viewed at the time she was injured and because the insurance policies at issue do not unambiguously define the term "principal," and, so, should be interpreted against Northwestern (DE # 123 at 6-15). Next, Dr. Socas contends that Defendant has unclean hands, because at the time of Dr. Socas' attempt to file a claim in 1995, immediately after the accident, Northwestern's then-agent, Oscar Pina, wrongly told Dr. Socas that she had no claim under the policies (DE # 123 at 16-18). Dr. Socas further raises equitable estoppel as a bar against Northwestern's statute of limitation defense, contending that Pina misled or lulled Dr. Socas into inaction, and that Northwestern should not be allowed to benefit from the wrongdoing of its agent (DE # 123 at 18). Dr. Socas also submits that equity prefers not to enforce the breach of contractual provisions which result in extreme forfeiture (DE # 123 at 18-19). Dr. Socas finally contends that she received appropriate treatment for her condition, i.e., acupuncture treatment and massage therapy. Dr. Socas also states that she reached maximum medical improvement in October 1996, and that the Florida courts will not require the enforcement of a "care and attendance" clause if continued treatment would be useless (DE # 123 at 19-20).
III. Standard for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure authorizes entry of summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). The movant has satisfied its burden of proof if, "after adequate time for discovery," the non-movant has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is an integral part of the federal rules as a whole, which are designed to secure a just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, supra. When the motion is filed by a defendant and addresses the adequacy of plaintiff's causes of action, the defendant's "burden is not to produce evidence negating the existence of material facts; rather, the burden is to 'point out the absence of evidence supporting the nonmoving party's case.'" Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401 F. Supp. 2d 1270, 1274 (S.D. Fla. 2003) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)); see also Hickson Corp. v. N. Crossarrm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
Assuming the moving defendant has met its initial burden, the non-moving plaintiff may not rely merely on allegations or denials in its own pleading; rather, its response must support its assertion "that a fact cannot be or is genuinely disputed" by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials; or . . . by showing that the materials cited do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). A party can object to the use of the material cited on the ground that it "cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. There must be a genuine factual dispute sufficient to permit a reasonable jury to return a verdict for the non-movant; and, "[f]or factual issues to be considered genuine, they must have a real basis in the record." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993)). "For instance, mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). While the Court must view all of the evidence and any inferences arising therefrom in light most favorable to the non-movant, it is nevertheless insufficient for the non-movant "to state what the evidence at trial will demonstrate" without producing actual "evidence to refute the factual claims contained in the motion for summary judgment." Schvaneveldt v. Mastec N. Am., Inc., 306 F. Supp. 2d 1177, 1181 (S.D. Fla. 2004) (citing Hairston, 9 F.3d at 918). Nor is the Court "required to 'scour the record to determine whether there exists a genuine issue of material fact to preclude summary judgment.'" Cardinal Capital, 401 F. Supp. 2d at 1282 n.5, quoting L.S. Heath & Son, Inc. v. AT&T Info. Sys. Inc., 9 F.3d 561, 567 (7th Cir. 1993).
IV. Interpreting Insurance Contracts
The jurisdiction of this Court is based upon diversity of citizenship of the parties, and therefore this Court applies the principles of contract interpretation under Florida law. See Payne v. U.S. Fidelity and Guar. Co., 625 F. Supp. 1189 (S.D. Fla. 1985).
Florida law states that contracts are to be interpreted as a whole, and should not turn on an insulated examination of particular phrases or paragraphs. See Jones v. Warmack, 967 So. 2d 400, 402 (Fla. Dist. Ct. App. 2007); Specialized Machinery Transport, Inc. v. Westphal, 872 So. 2d 424 (Fla. Dist. Ct. App. 2004); see also General Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 30 (Fla. Dist. Ct. App. 2004) ("[A] single policy provision should not be considered in isolation, but rather, the contract shall be construed according to the entirety of its terms as set forth in the policy and as amplified by the policy application, endorsements, or riders."). Further, courts should strive to "give effect to each provision" of a contract, meaning that "the court should select" an interpretation that honors the entire contract "over an alternative interpretation that relies on negation of some of the contractual provisions." Inter-Active Servs, Inc. v. Heathrow Master Ass'n, Inc., 721 So. 2d 433, 435 (Fla. Dist. Ct. App. 1998). Conversely, a court is not at liberty to rewrite or add terms to a written agreement. See Corwin v. Cristal Mizner's Preserve Ltd. Partnership, 812 So. 2d 534 (Fla. Dist. Ct. App. 2002). In sum, "contracts should receive a construction that is reasonable, practicable, sensible, and just." 7-Eleven, Inc. v. Stin, LLC, 961 So. 2d 977, 981 (Fla. Dist. Ct. App. 2007).
It is within the province of the Court to determine, as a matter of law, whether a contract is ambiguous. See Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So. 2d 745, 749 (Fla. Dist. Ct. App. 2007). A complex contract is not necessarily an ambiguous one. See City of Delray Beach, Fla. v. Agriculture Ins. Co., 85 F.3d 1527, 1531 (11th Cir. 1996). An ambiguity exists in a contract only where "it is reasonably susceptible to more than one interpretation. However, a true ambiguity does not exist merely because a document can possibly be interpreted in more than one manner." Lambert v. Berkley S. Condominium Ass'n, Inc., 680 So. 2d 588, 590 (Fla. Dist. Ct. App. 1996). In other words, "[t]he fact that both sides ascribe different meanings to the language does not mean the language is ambiguous." Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. Dist. Ct. App. 2003).
An unambiguous insurance contract must be "construed in accordance with 'the plain language of the polic[y]," Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000), and presents no question of fact for a jury. See Bragg v. Bill Herd Chevrolet, Inc., 374 F.3d 1060 (11th Cir. 2004). Absent an ambiguity, the words in a contract must be construed according to their "plain and ordinary meaning." Abel Homes at Naranja Villas, LLC v. Hernandez, 960 So. 2d 891, 894 (Fla. Dist. Ct. App. 2007). Moreover, in the context of an insurance contract, the court is obligated to resolve any ambiguity against the insurer that drafted the contract, and in favor of the insured. Allstate Ins. Co. v. Swain, 921 So. 2d 717, 719 (Fla. Dist. Ct. App. 2006). However, the presumption against the insurer that drafted the policy is only applied where the policy is subject to "a genuine inconsistency, uncertainty, or ambiguity [that] remains after resort to the ordinary rules of construction." Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998).
V. Statement of Undisputed Material Facts
1. Northwestern issued Dr. Socas the following five disability policies: Policy No. D682255, issued June 26, 1989; Policy No. D701901, issued September 26, 1989; Policy No. D749126, issued May 8, 1990; Policy No. D776594, issued September 17, 1990 and Policy No. D821773, issued May 10, 1991 (DE # 1 at paras. 2, 7).
2. The polices define "total disability", in pertinent part, as follows, "the insured is totally disabled when he is unable to perform the principal duties of ...