FILEMENA PORCARO, as the personal representative of the Estate of John Anthony Porcaro, vs. Petitioner, GREAT SOUTHERN LIFE INSURANCE COMPANY, IN THE SUPREME COURT OF FLORIDA CASE NO. SC04-924 DISTRICT COURT CASE NO. 4D03-0659 Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA RESPONDENT GREAT SOUTHERN LIFE INSURANCE COMPANY S AMENDED RESPONSIVE BRIEF ON JURISDICTION Wendy S. Leavitt STEEL HECTOR & DAVIS 200 South Biscayne Boulevard, #4000 Miami, Florida 33131 Telephone 305.577.2894 Facsimile 305.577.7001 Counsel for Respondent Great Southern Life Insurance Company
TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES...ii I. STATEMENT OF THE CASE AND FACTS...1 II. SUMMARY OF THE ARGUMENT...3 III. ARGUMENT...4 A. The Fourth District s decision does not conflict with Johnson....4 B. The Fourth District s decision does not conflict with Hopper....7 IV. NO PUBLIC POLICY REASON EXISTS FOR JURISDICTION...9 V. CONCLUSION... 10 i
TABLE OF AUTHORITIES CASES Enfinger v. Order of United Commercial Travelers of America, 156 So. 2d 38 (Fla. 1st DCA 1963)... 1, 7 Great Southern Life Insurance Co., 869 So. 2d 585 (Fla. 4 th DCA 2004)... 1, 6 Hopper v. Dependable Life Insurance Co., 615 So. 2d 263 (Fla. 1st DCA 1993)... 1-4, 7-10 Johnson v. Life Insurance Co. of Georgia, 52 So. 2d 813 (Fla. 1951)...1, 3-7, 10 Leonardo v. State Farm Fire & Casualty Co., 675 So. 2d 176 (Fla. 4th DCA 1996)... 4, 6 Mutual Life Insurance Co. of New York v. Bell, 3 So. 2d 487 (Fla. 1941)... 10 Navy Mutual Aid Association v. Barrs, 732 So. 2d 345 (Fla. 1st DCA 1999)... 10 Rutig v. Lake Jem Land Co., 20 So. 2d 497 (Fla. 1945)...5 Security Life & Trust Co. v. Jones, 202 So. 2d 906 (Fla. 2d DCA 1967)... 1, 7 STATUTES Section 382.012...9 Section 382.019...9 Section 382.025(5)...9 Section 731.103...7 Section 731.103(1)... 9, 10 Section 731.103(3)... 7, 8 ii
Respondent, Great Southern Life Insurance Company ( Great Southern ), submits this Brief on Jurisdiction in response to Petitioner s Amended Brief on Jurisdiction ( Petitioner s Brief ), which urges this Court to accept jurisdiction based on purported conflicts between the Fourth District Decision to be reviewed, 869 So. 2d 585 (Fla. 4 th DCA 2004), and Johnson v. Life Ins. Co. of Georgia, 52 So. 2d 813 (Fla. 1951), Security Life & Trust Co. v. Jones, 202 So. 2d 906 (Fla. 2d DCA 1967), Enfinger v. Order of United Commercial Travelers of Am., 156 So. 2d 38 (Fla. 1 st DCA 1963), and Hopper v. Dependable Life Ins. Co., 615 So. 2d 263 (Fla. 1 st DCA 1993). No such conflict exists. I. STATEMENT OF THE CASE AND FACTS Petitioner Filemena Porcaro ( Mrs. Porcaro ) omitted several key points from her statement of the case and facts, which Great Southern addresses here. This breach of contract case arises from Great Southern s denial of Mrs. Porcaro s claim for life insurance benefits on a policy issued to her husband, who is allegedly dead. Mr. Porcaro disappeared around June 13, 1998. His car was found at the airport the next day. About two years after his disappearance, Mrs. Porcaro petitioned the probate court to have her husband declared dead. The probate court issued a death certificate setting the date of death as October 18, 2000, the date the order was entered rather than the date Mr. Porcaro disappeared. Great Southern refused to pay the $1.5 million in death benefits asserting, among 1
other things, that Mr. Porcaro was not dead and that the policy had never been properly reinstated after a lapse for non-payment because the reinstatement application contained a potential forgery of Mr. Porcaro s signature. Mrs. Porcaro filed suit and thereafter moved for summary judgment. She submitted no evidence of foul play, plane crashes, or boat accidents, nor any reports of missing planes or boats. Great Southern submitted deposition and document evidence to support its defense that Mr. Porcaro had both reason and resources to flee the jurisdiction, including an impending federal investigation that later led to guilty pleas by his close business associates for mail fraud in the operation of one of his boiler room operations, which were a source of ready cash. See Initial Brief at 3-10 (extensively citing Record). Moreover, Great Southern submitted an affidavit of a handwriting expert that the signature on the reinstatement application (a month before Mr. Porcaro s disappearance) was made by a different person than the person who signed the original application in 1991. R.317-318. Great Southern s witness testified at deposition that the underwriter who reviewed the reinstatement application did not have the original application to compare the signatures. See Initial Brief at 10 (citing R.268-271). Mrs. Porcaro, herself, refused to identify any of the signatures purporting to be her husband s. Id. (citing R.364-365). In addition, Great Southern also submitted a fax it received 2
from Mr. Porcaro s office (after his disappearance but before Great Southern was informed) urging Great Southern to complete the reinstatement. R.216. Nonetheless, the trial court entered summary judgment against Great Southern, holding that it had failed to overcome the presumption that Mr. Porcaro was dead, that the policy was incontestable because Mr. Porcaro s date of death (as set by the probate court) occurred after the two-year contestability period, and that Great Southern had waived its right to contest the reinstatement. The Fourth District reversed the grant of summary judgment for Mrs. Porcaro because it found genuine issues of material fact existed as to (1) whether Mr. Porcaro was actually dead, (2) whether, if Mr. Porcaro was dead, his death occurred within the two-year contestability period following reinstatement, and (3) whether Great Southern waived its right to contest reinstatement of the policy. II. SUMMARY OF THE ARGUMENT There is no conflict between the Fourth District decision and Johnson and its progeny because the Fourth District decision is factually distinguishable. Further, Hopper is irrelevant to the instant case because it did not address a presumptive death certificate or any evidentiary weight to be assigned thereto. Moreover, Hopper dealt with the narrow issue of the running of a statute of limitations for bringing a death claim, not proof of the alleged fact and date of death. 3
Johnson is factually distinguishable from the Fourth District decision. The Fourth District applied the general standard announced in Johnson, and as later interpreted in Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176, 178 (Fla. 4 th DCA 1996), but arrived at a different result because of the unique facts here. Unlike this Court in Johnson, the Fourth District found Great Southern had provided evidence from which a jury could conclude that Great Southern had no actual or constructive notice of fraud in the reinstatement. Johnson left open the possibility that different facts could produce a different result. Similarly, the Fourth District decision does not conflict with Hopper. In fact, with respect to the date of death on a death certificate, both Hopper and the Fourth District rejected the dates of death selected by the respective probate courts. Moreover, in Hopper, neither the issue of the evidentiary weight (if any) of a presumptive death certificate nor an incontestability clause was at issue. Thus, Hopper is not relevant to the instant case and cannot be in conflict with the Fourth District s decision here. Finally, despite Mrs. Porcaro s claim otherwise, the Fourth District decision will not foment repetitious litigation because it follows existing law. III. ARGUMENT A. The Fourth District s decision does not conflict with Johnson. In Johnson v. Life Inc. Co. of Georgia,, this Court held that: 4
when an insurer has knowledge of the existence of facts justifying a forfeiture of the policy, any unequivocal act which recognizes the continued existence of the policy or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof. While ordinarily, the insurer is not deemed to have waived its rights unless it is shown that it has acted with the full knowledge of the facts, the intention to waive such rights may be inferred from a deliberate disregard of information sufficient to excite attention and call for inquiry as to the existence of facts by reason of which a forfeiture could be declared. 52 So. 2d 813, 815 (Fla. 1951) (emphasis added). The question of waiver is usually one of fact for consideration by a trial jury on issues properly defined. Rutig v. Lake Jem Land Co., 20 So. 2d 497, 499 (Fla. 1945). In Johnson, this Court found that [t]he uncontroverted evidence shows, as a matter of law, a waiver by the defendant of the forfeiture provisions of the policy here relied on as a defense. Johnson, 52 So. 2d at 816 (emphasis added). In Johnson, the evidence showed that the same insurance agent who knew about the insured s illness also continued to collect the premiums. Id. at 814. This Court left open the possibility that cases with different facts could be decided differently: While we do not wish to say that knowledge of an illness occurring after the issuance of the policy will in all cases be constructive notice to the insurer of unsound health [and physician visits], we think that the nature of the illness here was such that the notice thereof should have excited its attention and called for an inquiry as to the probable existence of facts justifying a forfeiture of the policy. Id. at 815 (emphasis added). Mrs. Porcaro asserts that Great Southern s acts of demanding and retaining premiums, upon full knowledge of the facts giving rise to a potential forfeiture 5
constitutes waiver as a matter of law. See Petitioner s Brief at 7 (emphasis added). Of course, just because Mrs. Porcaro claims that Great Southern had full knowledge of the facts does not make it so. Indeed, the Fourth District found that Great Southern presented evidence that at the time it continued to accept the payment of premiums, it was not aware the policy may have been fraudulently reinstated. This evidence created a material issue of fact as to whether Great Southern intended to waive its ability to contest the policy; thus, summary judgment... was improper. 869 So. 2d at 587. In the instant case, the reinstatement application did not on its face appear fraudulent, the individual reviewing it did not have the original application to compare signatures, and there was nothing about Mr. Porcaro s disappearance alone to have alerted Great Southern to a possible forgery on the reinstatement. This is precisely the type of jury question contemplated by Johnson and Leonardo. We note in closing that we have considered, but deem inapposite, Johnson v. Life Ins. Co. of Georgia, 52 So. 2d 813 (Fla. 1951), and its progeny, as in those cases the insurer performed an unequivocal act which recognized the continued existence of the policy. Id. at 815. In the instant case, State Farm s actions were clearly equivocal.... Leonardo, 675 So. 2d at 179. The Fourth District decision here followed Leonardo in distinguishing (albeit implicitly) Johnson. As the Fourth District decision clearly stated, fact questions remain as to whether Great Southern was aware of the allegedly fraudulent reinstatement when it continued to collect premiums. 6
Finally, Mrs. Porcaro s citation to Security Life & Trust Co. v. Jones, 202 So. 2d 906 (Fla. 2d DCA 1967), and Enfinger v. Order of United Commercial Travelers of Am., 156 So. 2d 38 (Fla. 1 st DCA 1963), is inexplicable. In Security Life, the question of waiver was tried to a jury, which is exactly what the Fourth District decision here directs. Similarly, in Enfinger, the case was presented to the trial court on an agreed stipulation of facts. Here, as set forth above, disputed questions of material fact exist, squarely putting this case into the general rule that questions of waiver are ordinarily for the jury. Mrs. Porcaro s mere assertion that Great Southern had full knowledge does not make it so, and the Fourth District s decision in the instant case to send this question to a jury is completely consistent with this Court s holding in Johnson. B. The Fourth District s decision does not conflict with Hopper. Mrs. Porcaro also attempts to create a conflict between the Fourth District s decision and Hopper v. Dependable Life Ins. Co., 615 So. 2d 263 (Fla. 1 st DCA 1993). Of course, if Hopper were relevant to her case, Mrs. Porcaro would have cited it to the Fourth District in her brief. The fact that she did not should both bar her from raising the case now and demonstrates the weakness of her argument. Mrs. Porcaro claims that Hopper holds that Section 731.103 can be used in a general jurisdiction court. Petitioner s Brief at 8. In Hopper, the wife of a missing husband sought and obtained, pursuant to Section 731.103(3), an Order of Presumptive Death from the probate court. Hopper, 615 So. 2d at 264. Hopper 7
makes no mention of a presumptive death certificate. The Order declared the husband dead as of the day of his disappearance, which had been some years earlier. After obtaining the probate order, the wife brought a separate death claim, apparently in the general jurisdiction division, against the insurance company. Id. The question there was whether the claim on the life insurance policy was barred by the statute of limitations. Id. The trial court ruled that the statute began to run on the date of the husband s death (as set by the probate court). There was no question as to the evidentiary value in the trial court of the probate court s order. The First District overturned the trial court s ruling, rejected the earlier disappearance date of death found by the probate court, and held that the statute of limitations began to run at the end of the five year presumptive death statute, Section 731.103(3). Thus, Hopper can be read for the proposition that a trial court is not bound by a probate court s choice of a date of death. Moreover, since there was never a question of the evidentiary value of a death certificate or of a probate court order, there can be no conflict with the Fourth District s decision here. Mrs. Porcaro first claims that in Hopper a presumptive death certificate was used in a general jurisdiction division case. In Hopper, however, there was no presumptive death certificate. The only thing mentioned in Hopper was an Order of Presumptive Death from the probate court. Thus, the entire premise of the purported conflict between Hopper and the instant Fourth District decision is false. 8
Mrs. Porcaro next claims that Hopper held that the date of death placed upon the presumptive death certificate is the date for calculating a statute of limitations defense. To the contrary, Hopper in fact explicitly rejected the date of death on the probate court Order that declared Mr. Hopper dead. 1 In the instant case, the Fourth District applied the explicit rule in Section 731.103(1), that the stated evidentiary value of a presumptive death certificate only applies in proceedings under the probate code. As the Fourth District noted, the Florida legislature in 1997 (after Hopper, which was in 1993) eliminated the provision in Section 382.025(5) that provided that death certificates were prima facie evidence of the facts stated therein in all courts and cases. While other additions to the Chapter 382, Vital Statistics, have explicitly included a provision making registrations under those specific sections admissible as prima facie evidence, see, e.g., Section 382.019, there is no such provision for Section 382.012 for presumptive death certificates. Hopper is not in conflict. IV. NO PUBLIC POLICY REASON EXISTS FOR JURISDICTION Mrs. Porcaro asserts that the Fourth District decision is unsupported and that 1 Mrs. Porcaro next attempts to equate a statute of limitations period with a contestability period for an insurance policy. She fails to cite to any authority for that proposition. Indeed, the two are completely different and call into play completely different policy considerations. Statutes of limitation limit the delay in bringing a cause of action and a claimant can choose to act within the statutory period. In contrast, a contestability clause determines whether any cause of action exists at all and is entirely dependent on when the insured dies, which, presumably is not within the control of either the insurer or the beneficiary. 9
the statute mandating presumptive death certificates be afforded prima facie evidentiary value will create a multiplicity of litigation. Instead, the Fourth District s decision rests squarely on the explicit language of Section 731.103(1), which limits use of a presumptive death certificate to probate court proceedings. If there is any chance for a multiplicity of litigation, it is for the Florida legislature to change the statute, not for this Court, nor any other, to refuse to follow it. Moreover, in the context of claims for death benefits, there is a long line of cases permitting a trial court to admit evidence to contradict a death certificate s statement that the cause of death was suicide. See, e.g., Mutual Life Ins. Co. of New York v. Bell, 3 So. 2d 487, 489 (Fla. 1941) (applying presumption against suicide even though death certificate listed cause of death as suicide); Navy Mutual Aid Ass n v. Barrs, 732 So. 2d 345, 348 n.2 (Fla. 1 st DCA 1999) (despite death certificate listing suicide as cause of death, actual cause was still in dispute). V. CONCLUSION For all the reasons above, no conflict exists either with Johnson and its progeny, or with Hopper. Accordingly, this Court should decline jurisdiction. 10
Respectfully submitted STEEL HECTOR & DAVIS LLP 200 S. Biscayne Blvd., # 4000 Miami, FL 33131-2398 305.577.2894 (tel.) 305.577.7001 (fax) wleavitt@steelhector.com By: Wendy S. Leavitt Florida Bar No. 908819 Attorneys for Respondent Great Southern Life Insurance Co. CERTIFICATE OF COMPLIANCE WITH TYPE SIZE AND FONT I HEREBY CERTIFY that the foregoing brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. CERTIFICATE OF SERVICE Wendy S. Leavitt I HEREBY CERTIFY that a true and correct copy of Great Southern s Responsive Brief on Jurisdiction was sent by U.S. Mail on August, 2004, to: Kenneth E. Cohen, Esq. Attorneys for Plaintiff Holman & Cohen 2739 Hollywood Boulevard Hollywood, FL 33020 Geralyn M. Pasaro, Esq. Attorneys for Defendant Jeff D. Hackmeier & Associates, Inc. Stephens Lynn Klein 301 E. Las Olas Boulevard, #800 Ft. Lauderdale, FL 33301 Wendy S. Leavitt MIA2001 297938v2 11