JAMES D. WHITTEMORE, United States District Judge.
In 1991, Betty Kendall purchased a Long Term Care Policy (the "Policy") from AMEX.
(Dkt. 2, Ex. A at 6; Dkt. 11-1 at 7).
In April 2011, Mrs. Kendall was admitted to Belvedere Commons of Sun City Center ("Belvedere"), licensed by the State of Florida as an assisted living facility. (Id. ¶¶ 10, 17). Mrs. Kendall's son, who holds her power of attorney, made a claim for benefits under the Policy. (Id. ¶¶ 3, 11). Defendant denied that claim, concluding that Belvedere did not meet the definition of a "nursing home" under the Policy. (Id. ¶ 13). Plaintiff brings this breach of contract action arising out of Defendant's denial
"Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law." Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir.2011). All material facts alleged in the non-moving party's pleadings are accepted as true, and those facts are viewed in the light most favorable to the non-moving party. Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir.2014).
Defendant moves for judgment on the pleadings based on its contention that Belvedere does not meet the definition of a "nursing home" under the Policy because it is not "licensed by the appropriate licensing agency to engage primarily in providing nursing care and related services." Plaintiff argues that the term "nursing care" in the Policy's definition of nursing home is not defined and therefore is ambiguous and that the Policy does not require the facility to be licensed as a nursing home.
"The court must enforce the insurance policy as written if the terms are unambiguous...." Safeway Insurance Co. v. Herrera, 912 So.2d 1140, 1143 (Ala. 2005).
"A term is ambiguous only if, applying the ordinary meaning, one would conclude that the provision containing the term is reasonably susceptible to two or more constructions." Herrera, 912 So.2d at 1144 (internal quotes omitted). "To the extent the language of an insurance policy provision is ambiguous, all ambiguities must be resolved against the insurance company." Id. at 1143.
It is undisputed that Belvedere is licensed "by the appropriate licensing agency" as a standard assisted living facility, not as a nursing home. Although the Policy does not define "nursing care or related services," as used in the Policy's definition of a nursing home, it is not ambiguous. According to the plain meaning of the Policy's definition of nursing home, the facility must be licensed to primarily provide nursing care. And in addition to the license requirement, the Policy lists certain services that, at a minimum, the facility must provide. Other courts that have reviewed identical policy language agree that the definition is not ambiguous. See Milburn v. Life Inv'rs Ins. Co. of Am., 511 F.3d 1285, 1288 (10th Cir.2008); Gillogly v. Gen. Elec. Capital Assur. Co., 430 F.3d 1284, 1293 (10th Cir.2005); Geary v. Life Inv'rs Ins. Co. of Am., 508 F.Supp.2d 518, 523 (N.D.Tex.2007); Gregg ex rel. Gregg v. IDS Life Ins. Co. of New York, 178 Misc.2d 895, 899, 681 N.Y.S.2d 451, 454 (1998), aff'd, 261 A.D.2d 799, 692 N.Y.S.2d 182 (1999).
Fla. Stat. § 429.02(5).
That an assisted living facility holding a standard license "may also employ or contract with a person licensed under part I of chapter 464 to administer medications and perform other tasks as specified in s. 429.255," Fla. Stat. § 429.07(3)(a), does not satisfy the Policy's first requirement that the facility be licensed to engage primarily in providing nursing care. And the legislature expressly recognizes "that assisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities," further distinguishing a nursing facility/home from an assisted living facility.
Accordingly, Defendant Genworth Life Insurance Company's Motion for Judgment on the Pleadings (Dkt. 11) is