This case comes before the Court on the following:
1. Motion for Final Summary Judgment by Plaintiff Theresa Henns (Doc. No. 26, filed June 4, 2011);
2. Response in Opposition to Plaintiff's Motion for Summary Judgment by Defendant Mony Life Insurance Company of America (Doc. No. 29, filed July 5, 2011);
3. The Affidavit of Marcus Burdick in Opposition to Plaintiff Theresa Henns's Motion for Summary Judgment (Doc. No. 30, filed July 5, 2001); and
4. Reply in Support of Motion for Summary Judgment by Plaintiff Theresa Henns (Doc. No. 36, filed July 20, 2011.)
This action concerns the claim of Theresa Henns ("Henns") that she is entitled to benefits under a contract of life insurance (Policy Number 2B80027358 (the "Policy")), issued by Mony Life Insurance Company of America ("Mony") to Henns's deceased spouse, Robert Harvey ("Harvey"). (Doc. No. 2, filed Feb. 9, 2011.) In her single-count Complaint, Henns alleged that she is the primary beneficiary under the Policy, which has a face amount of $650,000.00. (Id. ¶¶ 1, 3-4.) Henns alleged that, upon Harvey's death in a car accident on March 3, 2010, Mony was obligated to pay her the full amount of the Policy, but Mony denied her claim on May 4, 2010, and thereafter has refused to pay her benefits under the Policy. (Id. ¶¶ 5-8.) Henns further alleged that Mony's refusal to pay her benefits under the Policy is a breach of contract that has caused her damage. (Id. ¶¶ 9.) Finally, Henns alleged that she has "performed all conditions precedent" to entitle her "to recover under the Policy." (Id. ¶ 7.) Henns demands that Mony pay her the full Policy benefits, prejudgment interest, and her costs and attorney fees. (Id. at 2.)
On March 14, 2011, Mony filed its Answer, Affirmative Defenses, and Counterclaim for rescission. (Doc. No. 16.) Mony admitted the authenticity of a Statement of Insurance Coverage that Henns filed with her Complaint, but denied the bulk of Henns's remaining allegations. (Id. at 1-2.) Among its affirmative defenses, Mony alleged that Henn's claim fails because: (1) "[t]here is a failure of consideration" (First Affirmative Defense); and (2) the Policy is rescinded, lapsed for non-payment, and is "null and void" pursuant to Section 627.409 Florida Statutes (Second and Fourth Affirmative Defenses). (Id. at 3.) In support of its Counterclaim for rescission, Mony alleged that: (1) the Policy lapsed on July 24, 2008, because a premium was not paid; (2) in seeking reinstatement of the Policy, Harvey "fraudulently" made "false statements, misrepresentations, omissions, [and] concealed facts" in three applications for reinstatement (the "Reinstatement Applications"); and (3) Mony reinstated the Policy on December 1, 2008, in reliance on the "truthfulness and completeness of the answers provided" by Harvey in the Reinstatement Applications (Id. at 4-6 ¶¶ 9, 17-20, 23-26.) Finally, Mony alleged that it tendered to Henns "all premiums paid for the reinstatement of the Policy." (Id. at 7 ¶ 27.) Because the Policy was properly rescinded (according to Mony), it had no obligation to pay Henns benefits under the Policy. Mony requests that the Court enter judgment in its favor that the Policy is rescinded pursuant to Section 627.409 Florida Statutes, declare the Policy "null, void and of no effect as of the date of its lapse," and require Henns to pay Mony its costs, expenses and attorney fees. (Id. at 7.)
In her Answer to Mony's Counterclaim, Henns admitted that a premium payment "was not electronically debited from" her account in July 2008 due to an error, but she denied that the Policy "lapsed" or was properly cancelled. (Doc. No. 18 ¶ 9, filed March 29, 2011.) Henns admitted that she contacted Mony after being advised by a Mony agent that the Policy "was cancelled," and Mony requested that Harvey submit a reinstatement application. (Id. ¶¶ 10-11.) Henns denied that Harvey fraudulently made false statements, omissions, or concealed facts concerning his health in any application to Mony. (Id. ¶¶ 12-17, 23-26.) Finally, Henns denied that Mony tendered premiums paid to her; rather, Henns alleged that Mony unsuccessfully sought her release of claims in exchange for a check in the amount of $837.72. (Id. ¶ 27.) Among her affirmative defenses, Henns alleged estoppel, waiver, unclean hands (Affirmative Defenses Two, Three, Four, and Nine), and failure to comply with conditions precedent (Affirmative Defense Eight). (Id. at 4-6.)
On June 4, 2011, Henns filed a Motion for Summary Judgment, arguing that judgment should be entered in her favor on her Complaint for breach of contract, and against Mony on its affirmative defenses and Counterclaim for rescission. (Doc. No. 26.) According to Henns, this matter is appropriate for summary judgment for the following three reasons.
(1) First, her breach of contract claim is established as a matter of law because Mony has paid her no benefits under the Policy even though the conditions triggering Mony's duty to pay Henns occurred when Harvey died and Henns submitted proof of his death. (Id. at 7-8.)
(2) Second, it is undisputed that the Policy is supported by consideration in that [Harvey and Henns] paid money to Mony for the Policy; thus, Mony cannot prevail on its first affirmative defense as a matter of law. (Id. at 8.)
(3) Finally, as a matter of law, Mony cannot prevail on its Counterclaim and remaining affirmative defenses because Mony's failure to comply with the Policy requirement of attaching Reinstatement Applications to the Policy bars Mony from relying on purported fraudulent statements in such applications. (Id. at 8-11.)
On July 5, 2011, Mony filed its Response in Opposition to Henns's Motion for Summary Judgment ("Response"). (Doc. No. 29.) In its Response, Mony did not challenge Henns's first and second arguments. Mony disputes only the third argument. Specifically, Mony argues that its defenses and Counterclaim are properly based on statements made by Harvey in the Reinstatement Applications because neither the terms of the Policy nor Florida law required Mony to attach the Reinstatement Applications to the Policy. (Id. at 3.) Henns filed her Reply in support of her Motion on July 20, 2011. (Doc. No. 36.) Discovery is not yet complete; nonetheless, Mony does not argue that Henns's dispositive motion is premature, and neither party suggests that the Court should delay its resolution of Henns's Motion for Summary Judgment.*fn1 See Fed. R. Civ. P. 56(d).
A. Jurisdiction and Choice of Law
This Court is authorized under 28 U.S.C. § 1332 to exercise jurisdiction because the parties are diverse and the amount in controversy exceeds $75,000.00. Further, because the Policy was issued to a Florida resident, and the events giving rise to this action occurred in Florida, the law of Florida controls the resolution of this action.
Courts "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). An issue of fact is "material" under the applicable substantive law if it might affect the outcome of the case. Hickson Corp., 357 F.3d at 1259. An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. at 1260. The court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.
The party moving for summary judgment has the burden of proving that: (1) there is no genuine issue as to any material fact, and (2) it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255. The court may not weigh conflicting evidence or weigh the credibility of the parties. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). If a reasonable fact finder could draw more than one inference from the facts and that inference creates an issue of material fact, the court must not grant summary judgment. Id. On the other hand, summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. In addition, when a claimant fails to produce "anything more than a repetition of his conclusory allegations," summary judgment for the movant is "not only proper but required." Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).
1. Florida's Insurance Code
Insurance policies are contracts subject to common law contract principles in Florida. Bankers & Shippers Ins. Co. v. Phoenix Assurance Co., 210 So. 2d 715, 719 (Fla. 1968). Insurance also is regulated and, by statute, Florida requires that insurers include certain provisions in insurance policies offered to Florida residents. § 627.452(1), Fla. Stat. (2010) ("No policy of life insurance . . . shall be delivered or issued for delivery in this state unless it contains in substance each of the provisions as required by §§627.453-627.462 inclusive and §§627.475 and 627.476 . . . ."); see also, § 627.412(1), Fla. Stat. (2010); Green v. Life & Health of Am., 704 So. 2d 1386, 1391-92 (Fla. 1998).
Among the provisions required in all life insurance contracts is that "settlement shall be made upon receipt of due proof of death and surrender of the policy" when "a policy becomes a claim by death of the insured." § 627.461, Fla. Stat. (2010). Payment of specified interest on amounts owed under a life insurance contract are mandated as well. § 627.4615, Fla. Stat. (2010). And, life insurance policies must include a provision giving insureds "a grace period of not less than 30 days within which payment of any premium after first due may be made." § 627.453, Fla. Stat. (2010).
Florida also requires insurers to include terms in life insurance policies that the policy shall be incontestable under certain circumstances. Specifically, Florida Statutes, Section 627.455, provides as follows:
Every insurance contract shall provide that the policy shall be incontestable after it has been in force during the life-time of the insured for a period of 2 years from its date of issue expect for nonpayment of premiums and except, at the option of the insurer, as to provisions relative to benefits in event of disability and as to provisions which grant additional insurance specifically against death by accident or accidental means. § 627.455, Fla. Stat. (2010).
Applications for life insurance are regulated as well, with Florida requiring that every insurance contract include the following provision:
[T]hat the policy, or the policy and the application therefor if a copy of such application is endorsed upon or attached to the policy when issued, shall constitute the entire contract between the parties, and that all statements contained in the application shall, in the absence of fraud, be deemed representations and not warranties. § 627.454, Fla. Stat. (2010). If an insurer fails to attach an insured's application to the policy when issued, the insurer is thereafter prohibited from admitting the application in evidence in an action contesting the policy. § 627.408(1), Fla. Stat. (2010). The pertinent provisions read as follows:
(1) An application for the issuance of any life or health insurance policy or annuity contract is not admissible in evidence in an action relative to the policy or contract unless a true copy of the application was attached to or ...