Berry v. Fidelity & Casualty Co.

HORTON, Judge. The appellant sought recovery for bodily injuries sustained in an accident which resulted in disability and for which she alleged the appellee had insured her. The pertinent portions of the policy provided for payment in the event of total and permanent disability continuing for a period of twelve consecutive months.1 The parties stipulated to certain essential facts.2 Upon this stipulation the court ren [340] dered a summary judgment in favor of the appellee and this appeal followed. The trial judge concluded as a matter of law that in view of that portion of the stipulation quoted in footnote 2, the appellant conceded that her injury was not total and permanent, but instead that she was temporarily and totally disabled for at least twelve consecutive months. We conclude that the learned trial judge was correct and the summary judgment should be affirmed upon the authority of Cassens v. Metropolitan Life Ins. Co., 114 Fla. 659, 154 So. 522. Affirmed. Footnotes [1] “When as the result of such injury the Insured is totally and permanently disabled and prevented from engaging in each and every occupation or employment for compensation or profit and such total and permanent disability has continued for a period of at least twelve conseeu-tive months, the Company will pay fifty percent of the Principal. * * * ” [2] “4. That as a result of injury sustained in said accident, plaintiff was temporarily and totally disabled for at least twelve consecutive months thereafter; however, said total disability was not, during said twelve month period, of such nature as to indicate or suggest that it was or would be permanent.”