Davey v. New York Life Ins. Co.

Full title: GORDON R. DAVEY, PERSONAL REPRESENTATIVE OF THE ESTATE OF BETTY RAE DAVEY…

Court: District Court of Appeal of Florida, Fourth District

Date published: Aug 26, 1988

528 So. 2d 1228 (Fla. Dist. Ct. App. 1988)

Opinion

No. 4-86-2124.

July 13, 1988. Rehearing Denied August 26, 1988.

Appeal from the Circuit Court, Broward County, John T. Luzzo, J.

John T. Carlon, Jr., Fort Lauderdale, for appellant.

Richard M. Leslie and Baron J. Drexel of Shutts Bowen, Miami, for appellee.

TOBIN, DAVID L., Associate Judge.

Gordon R. Davey, as personal representative of the estate of his wife, Betty R. Davey, appeals a final summary judgment in favor of appellee, New York Life Insurance Company. Appellant was substituted for his wife as plaintiff below, after Mrs. Davey's death. The complaint sought recovery of medical expenses of $21,896.12. Appellant contended that appellee was obligated to pay the expenses pursuant to Mrs. Davey's group major medical expense insurance policy. Appellee responded by contending, inter alia, that there was no coverage under the group policy for the medical expenses incurred due to an exclusion in the policy for preexisting conditions.

The deposition testimony of Dr. Clifford B. Miles and an affidavit of Dr. Jon Fichtelman revealed that Mrs. Davey received medical care, within six months of the time when she became an insured under the group policy, for the same medical condition for which she incurred the expenses sought, and which condition ultimately claimed her life. The insurance policy specifically excluded coverage for any preexisting condition for which medical care had been provided within six months of the date of coverage.

Appellant submitted no evidence which genuinely disputed the facts as established by appellee, and therefore the trial court's judgment in favor of appellee was correct. See Wells v. Wilkerson, 391 So.2d 266, 267 (Fla. 4th DCA 1980). We note that although the trial court apparently did not base its decision on the preexisting condition exclusion, the court's ultimate determination was correct, and should therefore be affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA), rev. denied, 392 So.2d 1381 (Fla. 1980).

GLICKSTEIN and GUNTHER, JJ., concur.