SHARON LOVELACE BLACKBURN, Chief District Judge.
The case is currently before the court on Defendant Union Bankers Insurance Company's Motion for Summary Judgment. (Doc. 13.)
Summary judgment is appropriate "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). The moving party bears the initial burden of showing no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("[I]t is never enough simply to state that the non-moving party cannot meet its burden at trial.").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Therefore, "courts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)). Therefore, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
On October 17, 1983, Executive Fund Life Insurance Company ("Executive Fund") issued Winkles an Automobile and Hospital Policy (the "Policy"). (Doc. 13-1 at 4; doc. 13-3 at 53-55; see also doc. 13-4 at 2.)
(Id.)
On December 30, 1985, Winkles was in a car accident in Florida, and as a result of the accident, her left breast implant burst.
In 1994, after a visit from a Penn Life Insurance Company ("Penn Life") agent
Penn Life continued paying benefits to Winkles for approximately ten years. (Doc. 13-3 at 74-75.) During that time, Winkles filed multiple reports regarding her disability, including information about her physical abilities and daily activities, (see, e.g., doc. 16-1 at 4, 14, 16, 18, 20, 22, 24, 26, 28, 30), and Penn Life followed up with her on a periodic basis, (doc. 13-3 at 75). Winkles routinely reported that she engaged in bird watching, played Nintendo, played word games, sat in a swing outside, and watched television. (See, e.g., doc. 16-1 at 4, 18, 22, 24, 26.) In addition, Penn Life was aware that Winkles regularly attended church, occasionally participated in activities away from home such as shopping, and owned twenty cows together with her husband. (Doc. 16-1 at 63, 69.) In February 1996, Penn Life informed Winkles that she qualified for waiver of premiums under the Policy, and her premiums were waived beginning March 16, 1996. (Id. at 5.)
In 2003, Winkles was convicted of arson and sentenced to twenty years in prison. (Doc. 13-3 at 97-98.) She began her prison term in April of 2003 at Julia Tutwiler Women's Prison ("Tutwiler") in Wetumpka, Alabama. (Id. at 98-100.) Winkles was briefly moved from Tutweiler to a Louisiana prison before being transferred to a work release facility in Birmingham, Alabama, where she remained until 2008. (Id. at 103-05, 109.) In order to be admitted into the work release program, Winkles was required to complete an Assessment for Pre-Employment Screening, where she indicated that she had the following skills: "machine operator[,] king bearer, making car parts[,] spark plugs[,] printed circuit boards[, and] soldering. (Doc. 13-3 at 122-26; doc. 13-6 at 2.)
Ultimately, Winkles worked as a van driver, driving other inmates to and from their jobs in a fifteen-passenger van. (Doc. 13-3 at 110-11.) In accordance with this responsibility, she signed forms indicating that she was capable of performing the duties required to be a van driver, including following designated routes, filling the van with gas, cleaning the van after trips, and securing the van upon return to the work release facility. (Doc. 13-9 at 2; doc. 13-10 at 2; doc. 13-3 at 158-59.) Despite signing these agreements, Winkles maintains that she did not affirmatively sign up for the work release program and that she was forced to drive the van. (Doc. 13-3 at 106, 107, 131.)
While part of the work release program, Winkles was periodically permitted to leave the facility for four to seventy-two hours at a time to visit with her family. (Doc. 13-3 at 132-37, 145.) During these leaves, she ate at restaurants with her brother, sat in the park, went to K-Mart, and traveled home to Addison, Alabama. (Id. at 140-43, 196; doc. 13-12 at 2; doc. 13-13 at 2.) In June of 2005, while still incarcerated at the work release facility, Winkles submitted a standard "Activities of Daily Living Questionnaire" to Penn Life stating that "my leg gives []way occasionally" when driving and that "I don't travel except for necessary trips." (Doc. 16-1 at 54.)
On September 21, 2005, Penn Life notified Winkles that her benefits under the Policy were being terminated because she "no longer satisf[ied] the . . . policy definition of disability." (Doc. 13-14 at 2 (emphasis in original).) The company's letter stated that the Department of Corrections had informed it that she had been performing duties as a full-time van driver and that "[s]ince you are actually engaged in performing these services, you can not [sic] be considered unable to perform them . . . ." (Doc. 13-14 at 3.) Winkles testified that after the termination of her benefits, she paid premiums on the Policy until 2007, but that she paid no premiums once she got out of prison. (Doc. 13-13 at 203.) On November 15, 2006, Penn Life sent a letter to Winkles stating that her policy had lapsed due to the non-payment of premiums. (Doc. 13-15 at 2.)
Winkles filed her Complaint in Alabama state court,
As a preliminary matter, the court must determine which state's law governs this case. See St. Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 895 (11th Cir. 2009) ("A federal court sitting in diversity, as in this case, must apply the choice of law principles of the state in which it sits."). Alabama follows the rule of lex loci contractus. Cherokee Ins. Co., Inc. v. Sanches, 975 So.2d 287, 292 (Ala. 2007). Under this rule, if the contract itself does not specify which jurisdiction's law is to apply, the court applies the "law of the state where the contract was formed." Id. (quoting Cherry, Bekaert & Holland v. Brown, 582 So.2d 502, 506 (Ala. 1991)); St. Paul Fire & Marine Ins. Co., 572 F.3d at 895 ("Alabama follows the principle of lex loci contractus, applying the law of the state where the contract was formed."). Jerry Winkles's insurance policy provided to the court states that it was "Dated at Ocoee, FLA," (doc. 13-4 at 2), and Winkles's testimony indicates that the Policy was executed while she was living in Florida and working at Walt Disney World, (doc. 13-3 at 51-52). Further, Union Bankers asserts that Florida law applies in this case, (doc. 13-1 at 13, n. 4), and Winkles has not contested that assertion. Accordingly, the court agrees that Florida law governs this case.
In its Motion for Summary Judgment, Union Bankers makes four principal arguments, alleging that Winkles does not satisfy, nor has she ever satisfied, the requirements of the Policy's Confinement Clause. It argues that (1) Winkles was not "necessarily confined within doors" under the terms of the Policy, (2) because she worked as a van driver, she was not unable to perform "any and every duty pertaining to any business or occupation," (3) she was never "continuously" disabled due to her 1985 car accident, and (4) her alleged disability did not manifest itself within thirty days of the accident as required by the Policy. (Doc. 13 at 2.)
In her Response, Winkles argues that genuine issues of material fact exist as to whether she was and continues to be "necessarily confined within doors" and whether she was and continues to be "prevent[ed] . . . from performing any and every duty pertaining to any business or occupation." (Doc. 16 at 16, 22.)
Finally, in its Reply, Union Bankers counters that the requirements under the Policy that the disability must be both continuous and occur within thirty days of a car accident are preconditions to coverage and therefore cannot, under Florida law, be waived by an insurer. (Doc. 18 at 6-7.) It outlines the distinction between coverage provisions and forfeiture provisions, noting that the former "cannot be waived by an insurer and can be raised at any time." (Id. at 5.) This argument is persuasive and supported by law. Therefore, the court agrees with Union Bankers: because Florida law makes clear that waiver cannot be applied to expand the scope of the insurance coverage provision in this case, Winkles cannot recover under the Policy. Accordingly, the court chooses only to address the dispositive issue of waiver below and does not address Union Bankers' additional arguments at this time.
Though waiver initially seems a persuasive argument based on the facts of Winkles's case,
The difference between provisions of coverage and provisions of forfeiture is fairly simple in most cases. Lloyds Underwriters at London v. Keystone Equipment Finance Corporation, 25 So.3d 89, 92 (Fla. 4th DCA 2009), a case that Union Bankers relies upon extensively, provides a helpful explanation of which provisions constitute "coverage" provisions and which constitute "forfeiture" provisions. At a general level, provisions "where [the insurer] expressly and specifically declined to assume such a risk" are coverage provisions and cannot be waived by the insurer. Lloyds Underwriters at London, 25 So. 3d at 92 (quoting Peters v. Great Am. Ins. Co., N.Y., 177 F.2d 773, 779 (4th Cir. 1949)). More specifically, coverage provisions "are inclusionary or exclusionary, . . . outline the scope of coverage, or . . . delineate the dollar amount of liability." Id. at 92-93 (quoting Creveling v. Gov't Emp. Ins. Co., 828 A.2d 229, 244-45 (Md. 2003)). Conversely, forfeiture provisions "are invoked to avoid liability for existing coverage" and "often include provisions such as filing a timely notice of claim and submitting proofs of loss." Id. (quoting Creveling v. Gov't Emp. Ins. Co., 828 A.2d 229, 244-45 (Md. 2003)).
Union Bankers conveys the distinction well in its Reply when it differentiates between a forfeiture provision and a coverage provision, noting that
(Doc. 18 at 6 (emphasis in original).) Thus, for example, in Lloyds Underwriters at London, the court held that
Lloyds Underwriters at London, 25 So. 3d at 93. Similarly, in State Liquor Stores No. 1 v. United States Fire Insurance Co., 243 So.2d 228 (Fla. 1st DCA 1971), the court held that a robbery insurance policy provision which provided coverage for a business's property when there was a robbery "outside the premises while being conveyed by a messenger," could not be expanded by waiver. State Liquor Stores No. 1, 243 So. 2d at 230-35. The court noted that "[i]t must be recognized that there is substantial difference in law between . . . representations concerning the scope and extent of coverage to be afforded by an insurance policy . . . [, and] representations waiving forfeiture provisions of a policy . . . ." Id. at 233. Accordingly, the court held that an insurance agent's knowledge of how the company completed its business prior to the issuance of the policy
In Winkles's case, the specific provision at issue states that benefits will be paid under the policy if "`Such Injury' . . . shall within thirty days after the date of the accident continuously disable and prevent the Insured from performing any and every duty pertaining to any business or occupation . . . so long as such total disability and such . . . confinement continues . . . ." (Doc. 13-4 at 2.) As discussed earlier, Winkles argues that because Penn Life was aware of the material facts and chose to pay her despite the language in its Policy, it has waived the right to assert certain arguments. (Doc. 16 at 28-31.) However, Union Bankers argues that the Policy requirements, specifically the requirements of disability within thirty days and continuous disability thereafter, are conditions which must be met for the coverage to exist and are therefore coverage provisions that cannot be waived. (Doc. 18 at 6-7.)
Union Bankers is correct. As in the Florida cases discussed above, here the thirty-day and continuous disability requirements are coverage provisions "outlin[ing] the scope of coverage" under the Policy and cannot be waived. Lloyds Underwriters at London, 25 So. 3d at 92 (quoting Creveling v. Gov't Emp. Ins. Co., 828 A.2d 229, 244-45 (Md. 2003)). Because the Policy language requires that Winkles become totally disabled within thirty days after an accident (a relatively short time period), and remain continuously disabled, it is clear that the type of injury Winkles claims to have incurred—a long term and slowly manifesting disability—was not within the risk assumed by the insurance company when the Policy was issued. See id. at 92. Moreover, the limitation of coverage to confining disabilities occurring within thirty days of a covered accident and continuing thereafter was presumably in place to purposefully exclude the very type of injury that Winkles is claiming: namely, one where the actual cause would be difficult to prove. By including a thirty-day continuous disability requirement, an insurance company limits its coverage to confining disabilities which it can be fairly certain have directly resulted from the covered accident. Thus, because the Confinement Clause requirements are plainly coverage provisions, and because Winkles was not continuously disabled by her accident as required under the language of the Clause, she is not covered under the Policy.
Moreover, in addition to defining the scope of coverage, it is clear that the Confinement Clause does not in any way operate as a forfeiture provision. For example, it is not a method by which Union Bankers could "avoid liability for existing coverage" based on a technicality. Lloyds Underwriters at London, 25 So. 3d at 93. Further, it does not depend on any action that Winkles as the insured was required to take; she did not "fail to behave in a particular manner and comply with its provisions concerning [her alleged disability]." Id. On the contrary, Winkles simply does not meet the requirements laid out very plainly in the language of the Confinement Clause, and thus, her alleged total disability does not fall within the scope of coverage. To interpret the requirements otherwise would expand the coverage under the Policy to include circumstances beyond the listed requirements, and Florida law clearly prohibits such an expansion. See Lloyds Underwriters at London, 25 So. 3d at 92. As one court very aptly put it, "[i]t would be unjust to . . . the insurance carrier if the law were that when the insurance carrier once undertakes to provide medical or other care for an [insured] it has lost all right to afterwards defend against what it believes to be an unjust or illegal claim." Larson v. Wycoff Co., 624 P.2d 1151, 1155 (Utah 1981) (quoting Harding v. Indus. Comm'n of Utah, 28 P.2d 182, 184 (Utah 1934)).
Winkles has not contested Union Bankers' assertion that she was not continuously disabled within thirty days of the 1985 accident. (See doc. 16 at 3, 28.) Instead, she has only argued that Union Bankers waived its right to raise these issues by paying benefits under the Policy for approximately ten years, despite having knowledge of Winkles's circumstances throughout the course of her coverage. (Id. at 29.) For the reasons discussed above, this argument fails under the relevant law. Accordingly, issues of whether Winkles was "necessarily confined within doors" and "prevented from performing any and every duty pertaining to any business or occupation" need not be decided, and Union Bankers is entitled to judgment as a matter of law.
For the foregoing reasons, the court finds that Defendant Union Bankers Insurance Company's Motion for Summary Judgment, (doc. 13), is due to be granted with respect to Winkles's breach of contract claim. An order granting Union Bankers' Motion will be entered contemporaneously with this Opinion.
