PETER M. BRADY, PLAINTIFF-APPELLANT,
v.
CONTINENTAL CASUALTY COMPANY, DEFENDANT-APPELLEE
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The court held that the insured had the burden to prove disability resulted from bodily injury as defined by the policy, and the evidence did not support recovery.
Appellant sought permanent total disability benefits under an accident disability insurance policy. The jury rendered a verdict in favor of the insure…
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PER CURIAM:
In this Florida diversity action by appellant Brady against Continental Casualty Company for recovery of benefits for permanent total disability under an accident disability insurance policy the jury rendered a verdict in favor of Continental. By this appeal, appellant Brady complains that the district court committed error in refusing to grant him a directed verdict on the grounds that the definition of the word “injury” contained in the policy of insurance was ambiguous.
Being a diversity case, this court must apply Florida substantive law. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). On the basis of the decisions of Florida courts in Berg v. New York Life Insurance Company, 88 So. 2d 915 (Fla.1956), and Roberts v. Southern Farm Bureau Casualty Ins. Co., 215 So. 2d 59 (Fla.App.1968), as well as other Florida decisions,1 it seems clear that an insured seeking to recover permanent total disability benefits under an insurance policy which provides that the permanent total disability must result from bodily injury caused by an accident and resulting directly and independently of all other causes, has the burden of proving that the cause of his disability falls within these provisions. In the instant case, the evidence indicated that the insured’s disability was caused by pre-existing conditions which was merely aggravated by the accident, and on the evidence submitted appellant was not entitled to recover under the terms of the contract of insurance.
Judgment affirmed.
. See also, Benante v. Allstate Insurance Company, 477 F. 2d 553 (5th Cir. 1973) ; Prudential Insurance Company of America v. Schreffler, 376 F. 2d 397 (5th Cir. 1967); Decker v. New York Life Insurance Company, 328 F. 2d 650 (5th Cir. 1964); Ryan v. Continental Casualty Co., 47 F. 2d 472 (5th Cir. 1931), construing Florida law.
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Citator
Cited By
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Fritz v. Standard Sec. Life Ins. Co. OF NEW York, 676 F.2d 1356 (11th Cir. 1982)
Authorities Cited
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (U.S. 1938)
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Ryan v. Cont'l Cas. Co., 47 F.2d 472 (5th Cir. 1931)
- Berg v. NEW York Life Ins. Co., 88 So. 2d 915 (Fla. 1956)
- Benante v. Allstate Ins. Co., 477 F.2d 553 (5th Cir. 1973)
- The Prudential Ins. Co. OF Am. v. Schreffler, 376 F.2d 397 (5th Cir. 1967)
- Roberts v. S. Farm Bureau Cas. Ins. Co., 215 So. 2d 59 (Fla. 1st DCA 1968)
- Decker v. NEW York Life Ins. Co., 328 F.2d 650 (5th Cir. 1964)