Opinion
No. 71-1141.
April 25, 1972. Rehearing Denied May 24, 1972.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Stephens, Magill, Thornton Sevier, Miami, for appellant.
Vernis Bowling, for Coconut Grove, for appellee.
Before BARKDULL, C.J., CHARLES CARROLL, J., and HARDING, MAJOR B., Associate Judge.
The appellant, defendant in the trial court, appeals from an adverse summary final judgment. The original action was instituted on an insurance contract which provided disability coverage. Said contract, in part, contained the following provision as to recurring disabilities:
"Recurrent Disabilities
A period of total disability commencing while this insurance is in force, which follows a previous period of such total disability, will be deemed a continuation of the previous total disability, unless the subsequent period of total disability is due to an entirely different cause, or unless the insured shall engage in any gainful occupation for which he is reasonably fitted and perform all the important duties thereof for a continuous period of 6 months or more between the periods of total disability."
The insured suffered a disability in 1967, described as "diffuse, interstitial pulmonary fibrosis". Thereafter, he suffered a subsequent disability, described as "arteriosclerotic heart disease with angina". It was apparent from the admissions and depositions before the trial court that both the insured and the insurance company considered these as disabilities from "entirely different causes", and there was no dispute as to this material fact. However, it was disputed between the medical experts as to whether or not the insured had recovered from the first disability under the terms of the policy prior to incurring the subsequent different disability.
"* * * unless the insured shall engage in any gainful occupation for which he is reasonably fitted and perform all the important duties thereof for a continuous period of 6 months or more between the periods of total disability."
Therefore, it appearing there was a material issue of fact as to whether or not the insured had recovered from the initial disability in order to commence a disability period for payment purposes as to the second disability, the trial judge erred in entering a summary final judgment [Holl v. Talcott, Fla. 1966, 191 So.2d 40; Knight v. American Heritage Life Insurance Company, Fla.App. 1970, 237 So.2d 224; Parkhurst v. Noble, Fla.App. 1970, 238 So.2d 691; Brown v. Warren Wooten Ford, Inc., Fla. App. 1971, 245 So.2d 268], and the matter is returned to the trial court with directions to accord the parties a trial on the issues as made by the pleadings.
Reversed and remanded, with directions.