Metropolitan Life Insurance Company v. Liebowitz

Filing 103

OPINION AND ORDER denying 78 Defendant's Motion for Summary Judgment; granting in part and denying in part 80 Plaintiff's Motion for Summary Judgment; and denying 95 Defendant's Motion for Judgment Under Rule 54(b). See Opinion and Order for details. Signed by Judge John E. Steele on 1/11/2022. (AFC)

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 1 of 34 PageID 4781

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
METROPOLITAN LIFE INSURANCE
COMPANY,
Plaintiff,
v.

Case No:

2:20-cv-276-JES-MRM

FRED A. LIEBOWITZ,
Defendant.

OPINION AND ORDER
This case comes before the Court on the parties’ cross motions
for summary judgment (Docs. ## 78, 80) filed on July 21, 2021.
Each party filed Responses in opposition (Docs. ## 89, 90), and
Replies. (Docs. ## 91, 93.)

As discussed below, the motions

concern only issues relating to whether coverage exists under a
certain insurance policy.

For the reasons set forth, defendant’s

motion for summary judgment is DENIED and plaintiff’s motion for
summary judgment is GRANTED IN PART AND DENIED IN PART.
I.
The record establishes the following undisputed facts. 1

“Both parties contend that the facts are essentially
undisputed.” (Doc. #97, p. 11.) The Court, therefore, generally
cites to the “Statement of Undisputed Issues of Fact” portion of
the Joint Pretrial Statement (Doc. #97, pp. 6-11), supplemented as
needed by compiled statements of the parties (Docs. #78, 80) and
exhibits in the record. MetLife’s embedded motion to strike (Doc.
1

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 2 of 34 PageID 4782

A.

DOH Complaints and Investigations

Dr. Fred A. Liebowitz (plaintiff or Dr. Liebowitz) is a pain
management physician in the Fort Myers, Florida area. (Doc. #97,
¶ 9(1)).

At all relevant times, his primary source of income was
(Id. ¶

treating patients for pain and prescribing narcotics.
9(3).)

By a letter dated May 10, 2010, Dr. Liebowitz was notified
that the Florida Department of Health (DOH) was conducting an
investigation of a complaint filed against him.

(Id. ¶ 9(10).)

Ultimately, in 2010 and 2011 the DOH filed and served Dr. Liebowitz
with

three

separate

Administrative

Complaints

(the

“DOH

Complaints”) in connection with medical care he had provided. (Id.
¶ 9(11).)

The DOH Complaints alleged that on many occasions Dr.

Liebowitz

improperly

prescribed

pain

killers

to

patients,

including one incident where a patient subsequently died from drug
overdose.

(Doc. #80, ¶ 11.)

The DOH Complaints requested that

the Board of Medicine impose penalties on Dr. Liebowitz, including
revocation or suspension of his medical license, restrictions on
his medical practice, fines, reprimands, probation, corrective
action, and remedial education.

(Id. ¶ 12.)

When Dr. Liebowitz

#90, p. 1, fn.1.) is denied, and the Court declines MetLife’s
request to deem the motion “largely unopposed.” (Doc. #93, p. 2.)

2

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 3 of 34 PageID 4783

was served with the DOH Complaints he signed a form disputing the
facts and requesting a formal hearing.

(Doc. #78, ¶ 7.)

Dr. Liebowitz notified his malpractice insurance carrier of
the DOH Complaints and was represented by William Whitney (Mr.
Whitney),

an

attorney

provided

by

this

throughout the DOH administrative process.

insurance

carrier,

(Doc. #97, ¶ 12.)

Mr.

Whitney kept Dr. Liebowitz apprised of significant developments in
the DOH proceedings.

(Doc. #80, ¶¶ 14-16; Doc. #97, ¶ 13.) Dr.

Liebowitz was an active participant with counsel and stayed current
on matters related to the DOH Complaints because the proceedings
were important to his medical practice and reputation.

(Doc. #80,

¶¶ 15-16, 20.)
In July 2014, the DOH provided Dr. Liebowitz with a proposed
settlement offer which Dr. Liebowitz and Mr. Whitney discussed in
detail.

(Id. ¶¶ 21-22.)

Around September 2014, Dr. Liebowitz

hired a second attorney (Allan Grossman) with his own funds to
provide a second review of his case and to evaluate the settlement
offer. (Id. ¶¶ 25-28.) The proposed settlement agreement included
permanent

restrictions

that

would

indefinitely

prevent

Dr.

Liebowitz from practicing his specialty of pain management and
prescribing narcotics. (Id. ¶ 23.)
by Dr. Liebowitz.

3

The DOH offer was not accepted

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B.

Insurance Application and Policy Issuance

On or about January 30, 2015, Dr. Liebowitz completed an
application for a disability insurance policy with Metropolitan
Life Insurance Company (defendant or MetLife) (the “Application”).
(Doc. #97, ¶ 9(1).)

Dr. Liebowitz answered certain questions in

the Application “to the best of [his] knowledge and belief,”
including the following two questions and answers pertinent to the
current litigation:
Question 5(i): Are you aware of any fact that
could change your occupational status or
financial stability? If YES, please give
details below.
Answer: No [box checked].
***
Question 17: Have you EVER had a professional
license suspended, revoked, or is such license
under review or have you ever been disbarred?
If YES, give details below.
Answer: No [box checked].
(Id. ¶ 9(5).)

Dr. Liebowitz admits he did not disclose the pending

DOH Complaints and investigations in the Application.
p. 2.)

MetLife made no investigation to determine the accuracy of

the statements, but relied solely on the answers.
9(8).)

(Doc. #89,

(Doc. #97, ¶

MetLife subsequently approved Dr. Liebowitz for coverage

based on the answers in his Application.

(Doc. #80, ¶ 4.)

MetLife processed Dr. Liebowitz’s Application and issued a
disability policy (the Policy) between April 16, 2015 and May 3,

4

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2015. (Doc. #97, ¶ 9(4).) On May 3, 2015, the Policy was delivered
to Dr. Liebowitz, who signed an Amendment to the Application which
affirmed that “there [were] no facts or circumstances which would
require a change in the answers in the application.”

(Id. ¶ 9(7).)

The Policy had an effective date of March 6, 2015.

(Id. ¶ 9(4).)

C.

Resolution of the DOH Complaints

In 2018, the DOH amended the DOH Complaints, reducing the
scope of the allegations.

(Doc. #80, ¶ 32.)

On September 11,

2018, Dr. Liebowitz entered into a settlement agreement with the
DOH.

(Doc. #97, ¶ 9(15).)

A Final Order approving the settlement

was entered by the Board of Medicine on December 18, 2018.

(Id.)

Among other things, the Final Order issued a Reprimand against Dr.
Liebowitz’s

medical

license

and

prescribe any controlled substance.
D.

restricted

his

ability

to

(Doc. #80, ¶ 39.)

Dr. Liebowitz’s Insurance Claim and MetLife Rescission

Also on December 18, 2018, Dr. Liebowitz submitted initial
claims forms to MetLife for disability benefits, stating his work
had been limited since January 4, 2016 due to an ankle injury.
(Doc. #80, ¶ 43 (citing Doc. #72-2, pp. 202-03).) 2

MetLife spent

about a year investigating Dr. Liebowitz’s disability benefits

Dr. Liebowitz more recently asserts that his disability
commenced in July 2017 (Doc. #78, pp. 9, 16), and “disavows he was
disabled within 2 years of the policy’s issue or effective date.”
(Id. p. 15.)
Whether Dr. Liebowitz’s disability commenced in
January 2016 or July 2017 is immaterial to the coverage issue.
2

5

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 6 of 34 PageID 4786

claim, which included review of his Application.

(Id. ¶¶ 44, 52.)

Following its investigation, MetLife sent Dr. Liebowitz, through
counsel, a Notice of Rescission dated December 30, 2019.
#97,

¶

9(21).)

The

Notice

set

forth

the

alleged

(Doc.

material

misrepresentations made in his Application which were the basis
for rescission, and included a check representing premiums paid by
Dr. Liebowitz to date and interest.

(Id.)

Dr. Liebowitz disputed

MetLife’s rescission and did not cash the check.
E.

(Id. ¶ 21-22.)

Present Litigation

On April 15, 2020, MetLife filed a Complaint seeking a Court
order “rescinding the Policy, and declaring that Liebowitz has no
right, title, or interest in the Policy.”
Relief.)

Dr.

Liebowitz,

in

turn,

(Doc. #1, Prayer for

filed

two

interconnected

counterclaims against MetLife seeking reinstatement of the Policy
and disability benefits under the Policy.

(Doc. #58.)

With the approval of the Court (Docs. ## 43-44), discovery
and trial have been bifurcated into two phases.

The first phase

will

bench

determine

necessary.
determine

the

“coverage”

(Doc. #44.)
what

benefits

issue,

with

a

trial

if

If there is coverage, a second phase will
are

due

to

Dr.

Liebowitz,

“damages” issue, with a jury trial if necessary.

(Id.)

i.e.,

the

The cross-

motions for summary judgment at issue in this Opinion and Order
concern the coverage issue, only.

6

(Docs. ## 78, 80.)

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 7 of 34 PageID 4787

II.
Motions for summary judgment should only be granted when the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, show “there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“An issue of fact is

‘genuine’ if the record taken as a whole could lead a rational
trier of fact to find for the nonmoving party.”

Baby Buddies,

Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material” if it may affect the outcome of the suit under
governing law.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

“A court must decide ‘whether the evidence presents a

sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of
law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,

1260 (11th Cir. 2004) (quoting Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

7

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 8 of 34 PageID 4788

F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983))
(finding summary judgment “may be inappropriate even where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts.”)).
Cross motions for summary judgment do not change the standard.
See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331
(11th Cir. 2005). Cross motions for summary judgment are to be
treated separately; the denial of one does not require the grant
of another; and summary judgment is inappropriate if disputes
remain as to material facts.

Id.; United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984).

The treatment of cross motions

remains the same even when a case is set for a bench trial, except
in limited circumstances where the parties, in effect, submit an
agreed-upon statement of facts for a trial based on the written
record.

Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ.,

Inc., 830 F.3d 1242, 1253 (11th Cir. 2016) (quotation omitted).
III.
Florida law allows an insurance policy to be rescinded under
certain

circumstances.

MetLife

must

adequately

plead

and

ultimately prove six elements to establish a cause of action for
rescission of its insurance contract:
(1) [t]he character or relationship of the
parties; (2) [t]he making of the contract; (3)
[t]he existence of fraud, mutual mistake,

8

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false
representations,
impossibility
of
performance, or other ground for rescission or
cancellation; (4) [t]hat the party seeking
rescission has rescinded the contract and
notified the other party to the contract of
such rescission; (5) [i]f the moving party has
received benefits from the contract, he should
further allege an offer to restore these
benefits to the party furnishing them, if
restoration is possible; [and] (6) [l]astly,
that the moving party has no adequate remedy
at law.
Billian v. Mobil Corp., 710 So.2d 984, 991 (Fla. 4th DCA 1998).
In short, “Florida law ... gives an insurer the unilateral right
to rescind its insurance policy on the basis of misrepresentation
in the application of insurance.”

Moustafa v. Omega Ins. Co., 201

So. 3d 710, 714 (Fla. 4th DCA 2016) (citation omitted).
To rescind the Policy based on a misrepresentation, MetLife
relies upon Fla. Stat. § 627.409(1), which provides:
(1) Any statement or description made by or on
behalf of an insured or annuitant in an
application for an insurance policy or annuity
contract, or in negotiations for a policy or
contract, is a representation and not a
warranty. Except as provided in subsection
(3),
a
misrepresentation,
omission,
concealment of fact, or incorrect statement
may prevent recovery under the contract or
policy only if any of the following apply:
(a)
The
misrepresentation,
omission,
concealment, or statement is fraudulent or is
material to the acceptance of the risk or to
the hazard assumed by the insurer.
(b) If the true facts had been known to the
insurer pursuant to a policy requirement or
other requirement, the insurer in good faith
would not have issued the policy or contract,
would not have issued it at the same premium
9

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 10 of 34 PageID 4790

rate, would not have issued a policy or
contract in as large an amount, or would not
have provided coverage with respect to the
hazard resulting in the loss.
Under this statute, “misrepresentations, omissions, concealment of
facts, and incorrect statements on an insurance application will
not prevent a recovery under the policy unless they are either:
(1) fraudulent; (2) material to the risk being assumed; or (3) the
insurer in good faith either would not have issued the policy or
would have done so only on different terms had the insurer known
the

true

facts.”

Certain

Underwriters

at

Lloyd’s

London

v.

Jimenez, 197 So. 3d 597, 601 (Fla. 3d DCA 2016).
MetLife only relies upon the first portion of § 627.409(1)(a),
asserting that Dr. Liebowitz’s answers to the two questions in the
Application were “fraudulent” misrepresentations or statements.
(Doc. #80, pp. 18-19.) 3

MetLife cites to the four elements of

fraudulent misrepresentation set forth in Butler v. Yusem, 44 So.
3d 102, 105 (Fla. 2010): “As we have stated, there are four
elements of fraudulent misrepresentation: ‘(1) a false statement

The Policy contains a “Time Limit on Certain Defenses”
provision, which provides: “After two years from the Effective
Date of this policy, or any policy change or reinstatement, no
misstatement, except fraudulent misstatements, made by You on the
Application can be used to void this policy or such policy change
or reinstatement, or to deny a claim under this policy or the
policy change or reinstatement, for a Disability starting after
the end of such two-year period.” (Doc. #58-1, p. 13.) The other
alternatives in the statute are admittedly time-barred by the twoyear provision. (Doc. #80, pp. 17-19.)
3

10

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concerning a material fact; (2) the representor’s knowledge that
the

representation

is

false;

(3)

an

intention

that

the

representation induce another to act on it; and (4) consequent
injury by the party acting in reliance on the representation.’”
(citation omitted). (Doc. #80, p. 19).

Dr. Liebowitz relies upon

an earlier Florida Supreme Court case, Lance v. Wade, 457 So. 2d
1008 (Fla. 1984), setting forth the same four elements.
#89, p. 3.)

(Doc.

Because proof of such fraud is difficult, “actual

fraud is not the most common circumstance under which insurers
avoid paying claims under insurance policies.”

Mora v. Tower Hill

Prime Ins. Co., 155 So. 3d 1224, 1227 (Fla. 2d DCA 2015).
IV.
The parties’ summary judgment motions address coverage issues
only and whether MetLife may rescind the Policy under Florida law,
supra.

MetLife asserts that it was and is entitled to rescind the

Policy based on Dr. Liebowitz’s fraudulent misrepresentations, and
therefore it is entitled to a judgment rescinding the Policy and
precluding coverage for Dr. Liebowitz’s disability claim.
## 80, 90, 93.)

(Docs.

Dr. Liebowitz, on the other hand, asserts that

for various reasons MetLife did not properly rescind the Policy
and cannot do so, and therefore he is entitled to coverage under
the Policy.

(Docs. ## 78, 89, 91.)

11

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A.

Proof of Fraud

As discussed, one of the elements of MetLife’s rescission
claim

requires

that

MetLife

prove

fraud

by

Dr.

Liebowitz.

MetLife’s motion for summary judgment is primarily focused on this
issue.

(Doc. #80.)

Thus, the Court examines whether MetLife has

satisfied the four fraud elements with the undisputed facts.
(1)

False Statement Concerning Material Fact

MetLife must establish that “a false statement concerning a
material fact” was made by Dr. Liebowitz.
105.

Butler, 44 So. 3d at

Such a false statement of fact must be about a past or

existing fact, not a prediction of a future event.

Bailey v.

Covington, 317 So. 3d 1223, 1228 (Fla. 3d DCA 2021).

Whether a

statement is material is measured by an objective standard.

“The

test of materiality is not that the company was influenced but
that the facts, if truly stated, might reasonably have influenced
the company in deciding whether it should reject or accept the
risk.”

Singer v. Nationwide Mut. Fire Ins. Co., 512 So. 2d 1125,

1128 (Fla. 4th DCA 1987) (citation omitted).

A “truthful response

to a question based on his ‘knowledge and belief’ cannot be
considered a misstatement or misrepresentation in an insurance
policy rescission action.”

William Penn Life Ins. Co. of New York

v. Sands, 912 F.2d 1359, 1360 (11th Cir. 1990).
Dr. Liebowitz argues that he did not make any false statements
about

material

facts

because

the

12

Application

questions

are

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 13 of 34 PageID 4793

ambiguous, call for a prediction and not a fact, and he answered
the ambiguous questions to the best of his knowledge and belief.
(Doc. #78, pp. 18-25; Doc. #89, p. 4.)

Thus, the statements he

made in response to the Application questions cannot be the basis
of

MetLife’s

judgment.

proof

of

fraud,

and

(Doc. #78, pp. 17-25.) 4

he

is

entitled

to

summary

The Court disagrees, and for

the reasons set for the below, the answers to the two questions in
Dr. Liebowitz’s Application were both false and material as a
matter of law.

Singer, 512 So. 2d at 1127.

It is certainly correct that an insurer may not deny coverage
“if the alleged misrepresentation was in response to an ambiguous
question. A question is ambiguous when it is susceptible to two
reasonable interpretations, one in which a negative response would
be correct and one in which an affirmative response would be
correct.”

Mora, 155 So. 3d at 1228 (quoting Mercury Ins. Co. v.

Markham, 36 So. 3d 730, 733 (Fla. 1st DCA 2010)). The inquiry is
whether

an

objectively

reasonable

person,

in

the

applicant’s

situation, “could truthfully answer the question in either the
affirmative or the negative.”

Id.

Whether a question in an

insurance application is ambiguous is question of law.

Jimenez,

197 So. 3d at 600.

Dr. Liebowitz asserts this same position as part of his
Second and Third Affirmative Defenses, discussed infra.
(Doc.
#58, pp. 5-7.)
4

13

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(a)

Question 5(i).

Question 5(i) asked, “Are you aware of any fact that could
change your occupational status or financial stability?”
#58-1, p. 18.)

Dr. Liebowitz answered, “No.”

(Id.)

(Doc.

Dr. Liebowitz

contends the question is ambiguous because a medical license
investigation does not prove the existence of any actual “fact”
that could change his occupational status or financial stability.
(Doc. #78, p. 19.) Dr. Liebowitz asserts that this question simply
asked him to predict what will happen to his license, rather than
to state an existing fact.

(Id.)

The Court finds that this question is not ambiguous and does
concern a fact, not a prediction.

At the time Dr. Liebowitz filled

out his Application, it was a fact that he was the subject of three
active and pending DOH Complaints regarding the medical care he
had provided to patients.

The DOH Complaints sought revocation of

Dr. Liebowitz’s license, which would preclude him from practicing
medicine, his career of nearly 30 years.

Dr. Liebowitz conceded

during his deposition that if the DOH found him guilty his license
could be revoked, and that the DOH had been seeking to have his
medical license revoked.

(Doc. #80,

¶¶ 29, 36.)

Nothing in the

question called upon the applicant to evaluate the merits of the
DOH Complaints or predict their success.

As Dr. Liebowitz knew,

the investigation of the DOH was pending and “could” change both
his

occupational

status

and

his

14

financial

stability.

An

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 15 of 34 PageID 4795

objectively reasonable person in Dr. Liebowitz’s situation could
only truthfully answer Question 5(i) in the affirmative because,
as Dr. Liebowitz knew, the DOH proceedings were in fact pending
and could change his occupational status and financial stability.
(b) Question 17
Question 17 asked, “Have you EVER had a professional license
suspended, revoked, or is such license under review or have you
ever

been

disbarred?”

answered, “No.”

(Id.)

(Doc.

#58-1,

p.

22.)

Dr.

Liebowitz

Dr. Liebowitz argues that the “under

review” portion is ambiguous because “under review,” “in the
context

of

an

administrative

proceeding

to

discipline

professional license holder,” “really has no meaning.”

a

(Doc. #78,

p. 24.) 5
The Court finds that this question is not ambiguous and does
concern a fact. The pertinent portion of the question asks whether
Dr. Liebowitz’s professional license is “under review.”

Dr.

Liebowitz’s pending and active DOH proceedings included review of
the medical care he had provided and sought revocation of his
medical license, among other punishments.

Dr. Liebowitz had two

attorneys reviewing his case and a proposed settlement had been
offered.

Dr. Liebowitz was actively aware of and participating in

Dr. Liebowitz supported this argument with expert testimony.
That expert evidence was excluded by Court Order. (Doc. #94).
5

15

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the proceedings.

His medical license was clearly “under review”

at the time of the Application.

Under these circumstances, an

objectively reasonable person in Dr. Liebowitz’s situation could
only truthfully answer Question 17 in the affirmative.
Therefore,

the

Court

finds

that

the

material

undisputed

evidence shows that Dr. Liebowitz made false statements concerning
material facts when answering these two unambiguous Application
questions.

MetLife has satisfied the first fraud element.

Liebowitz’s

request

for

summary

judgment

based

on

Dr.

ambiguous

questions (Doc. #78, pp. 17-25) is denied.
(2)

Knowledge of Falsity

MetLife must next establish that the material undisputed
facts show Dr. Liebowitz’s knowledge that the representations were
false.

Butler, 44 So. 3d at 105.

MetLife has done so.

Dr. Liebowitz argues that he answered the questions “to the
best of his knowledge and belief,” suggesting he did not knowingly
answer falsely.

(E.g., Doc. #78, p. 18-19; Doc. #91, p. 6-7.)

However, Dr. Liebowitz’s “belief” in the truthfulness of his
answers cannot contradict actual knowledge:
The twin qualifiers of knowledge and belief
require that knowledge not defy belief. What
the applicant in fact believed to be true is
the determining factor in judging the truth or
falsity of his answer, but only so far as that
belief is not clearly contradicted by the
factual knowledge on which it is based.
In
such event, a court may properly find a
statement false as a matter of law, however

16

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sincerely it may be believed.
To conclude
otherwise
would
be
to
place
insurance
companies at the mercy of those capable of the
most invincible self-deception — persons who
having witnessed the Apollo landings, still
believe the moon is made of cheese.
Casamassina v. U.S. Life Ins. Co. in City of New York, 958 So. 2d
1093, 1101 (Fla. 4th DCA 2007) (quoting Sands, 912 F.2d at 1365).
It is undisputed that Dr. Liebowitz knew of the DOH Complaints
and the investigation at the time he completed the Application.
Dr. Liebowitz admits this knowledge.

The Court has also found

that the answer to each question was a false statement of fact.
MetLife has satisfied the second fraud element.
(3)

Intent to Induce Reliance

MetLife must next demonstrate that Dr. Liebowitz had the
intent to deceive MetLife into providing disability insurance
coverage.

Butler, 44 So. 3d at 105.

“A false statement in the

abstract, even if knowingly made, does not constitute fraud;
indeed, what makes a false statement fraudulent is the declarant’s
intent that others rely upon it.” Philip Morris USA Inc. v.
Principe, No. 3D20-875, 2021 WL 4302370, at *6 (Fla. 3d DCA Sept.
22, 2021) (citing Butler, 44 So. 3d at 105).

This element is often

established by circumstantial evidence.

Glob. Quest, LLC v.

Horizon

Yachts,

Inc.,

849

F.3d

1022,

1030

(11th

Cir.

2017)

(citations omitted) (“elements of fraud—particularly intent and

17

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knowledge—may

be,

and

often

are,

proven

by

circumstantial

evidence”).
MetLife characterizes the evidence of intent in this case as
“overwhelming.”

(Doc.

#80,

pp.

20-22.)

MetLife

cites

circumstantial evidence, including the pending and active DOH
Complaints, the timing of settlement negotiations of those DOH
Complaints, and Dr. Liebowitz’s actions at that time.

(Doc. #80.)

Conversely, Dr. Liebowitz consistently maintains he believed his
answers to be truthful and had he no intent to induce MetLife to
provide him coverage through false statements, citing his own
declaration in support.

(Doc. #74-1.)

Dr. Liebowitz’s Second and

Third Affirmative Defenses also assert that Dr. Liebowitz answered
the Application questions based on his “reasonable interpretation”
of the questions, indicating he had no intent to deceive MetLife.
(Doc. #58, pp. 5-7.)
In fraud cases, summary judgment “is rarely proper as the
issue

so

frequently

turns

on

the

axis

of

the

circumstances

surrounding the complete transaction, including circumstantial
evidence of intent and knowledge.”

Glob. Quest, 849 F.3d at 1029.

When viewing the evidence in light most favorable to Dr. Liebowitz
as the nonmoving party on MetLife’s motion, a reasonable factfinder
could determine that Dr. Liebowitz lacked the intent to induce
MetLife’s

reliance

when

falsely

18

answering

the

Application

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 19 of 34 PageID 4799

questions. 6

Travelers Cas. & Sur. Co., 2014 WL 5325745, at *6 (“If

this Court finds the questions unambiguous, the question of whether
[the applicant] gave his responses with the intent to deceive must
be decided by [the factfinder].”)

A dispute of fact remains, and

MetLife is not entitled to summary judgment on the third fraud
element.
(4)

Consequent Injury

Finally, MetLife must establish that the material undisputed
facts prove that MetLife suffered a consequent injury when acting
in reliance on Dr. Liebowitz’s misrepresentations.
3d

at

105.

This

element

is

clearly

Butler, 44 So.

established,

since

the

uncontradicted evidence is that MetLife would not have issued the
Policy if Dr. Liebowitz had disclosed the DOH Complaints and
investigations.

MetLife has satisfied the fourth fraud element.

In sum, MetLife is entitled to partial summary judgment as to
the first, second, and fourth components of its fraud claim, but
not the third component.

Although, the Court is the factfinder on the coverage issue,
a district court should only grant summary judgment on cases slated
for a bench trial “when there are neither issues of credibility
nor controversies with respect to the substance of the proposed
testimony,” because a “trial on the merits would reveal no
additional data.”
Fla. Int’l Univ. Bd., 830 F.3d at 1252.
(quotation omitted). At a minimum, there are clearly issues of
Dr. Liebowitz’s credibility to consider.
6

19

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 20 of 34 PageID 4800

B.

Promptness of Rescission

Another element of MetLife’s rescission claim, distinct from
the fraud elements, is “[t]hat the party seeking rescission has
rescinded the contract and notified the other party to the contract
of such rescission.”

Billian, 710 So.2d at 991.

Dr. Liebowitz

argues that MetLife cannot now actually rescind the Policy because
MetLife

did

promptness.

not

seek

to

rescind

the

(Doc. #89, pp. 7-16, 20.)

Policy

with

reasonable

Therefore, according to

Dr. Liebowitz, MetLife waived any right to rescind the Policy,
MetLife’s motion should be denied, and Dr. Liebowitz’s motion is
due to be granted.

(Id.)

As the Florida Supreme Court has stated:
[W]hen an insurer has knowledge of the
existence of facts justifying a forfeiture of
the
policy,
any
unequivocal
act
which
recognizes the continued existence of the
policy or which is wholly inconsistent with a
forfeiture, will constitute a waiver thereof.
While, ordinarily, the insurer is not deemed
to have waived its rights unless it is shown
that it has acted with the full knowledge of
the facts, the intention to waive such rights
may be inferred from a deliberate disregard of
information sufficient to excite attention and
call for inquiry as to the existence of facts
by reason of which a forfeiture could be
declared.
Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813, 815 (Fla. 1951).
“An insurer may impliedly waive its ability to rescind the policy
and deny recovery, however, if the insurer knows or has reason to
know of the misrepresentation but continues to accept premium

20

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 21 of 34 PageID 4801

payments or otherwise lead the insured to believe that he or she
is still covered under the policy.”

Girard v. Mid-W. Nat’l Life

Ins. Co. of Tennessee, No. 05-61506-CIV, 2005 WL 8155381, at *4
(S.D. Fla. Dec. 7, 2005).
take

a

reasonable

amount

On the other hand, “[a]n insurer may
of

justifying rescission, though.”

time

to

investigate

the

facts

Girard, 2005 WL 8155381, at *3.

MetLife first argues that Dr. Liebowitz cannot argue that
MetLife’s

lack

of

promptness

constituted

waiver

because

Dr.

Liebowitz did not plead waiver as an affirmative defense.

(Doc.

#93, pp. 4-5.)

E.g.,

But Dr. Liebowitz was not required to do so.

Barber v. Am.’s Wholesale Lender, 542 F. App’x 832, 836 (11th Cir.
2013) (citing Rosique v. Windley Cove, Ltd., 542 So.2d 1014, 1016
(Fla. 3d DCA 1989)) (“The better view of Florida law is that
plaintiffs must affirmatively allege in their complaint that they
rejected the contract in a ‘reasonably prompt fashion’ after
discovering

a

mistake.”).

MetLife’s

promptness

is

part

of

MetLife’s cause of action, which the Court has already found was
sufficiently pled in the Complaint (Doc. #59 at 4-5) and which Dr.
Liebowitz denied in his Answer (Doc. #58).

This is sufficient to

raise the issue of waiver.
Turning to the merits of Dr. Liebowitz’s waiver argument, it
is undisputed that: (1) Dr. Liebowitz submitted his disability
claim in late December 2018 asserting a disability that began on

21

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 22 of 34 PageID 4802

January 4, 2016; 7 and (2) MetLife provided notice of its rescission
on December 30, 2019.
Dr.

Liebowitz

(Doc. #80, ¶ 43; Doc. #97, ¶ 9(21).)
argues

that

MetLife

unreasonably

delayed

rescission for over a year with knowledge of the DOH Complaints,
and therefore MetLife waived any ability to rescind.
pp. 7-16.)

(Doc. #89,

In support of this argument, Dr. Liebowitz states that

as early as November 29, 2018, Theresa Woods, a MetLife claims
specialist and the original handler of his disability claim,
searched

public

Complaints.
2018,

Woods

licensing

records

which

disclosed

(Doc. #86-2, pp. 6-8; Doc. #87-3.)
conducted

a

similar

disclosing the DOH complaints.

search,

(Doc. #87-7.)

the

DOH

On December 28,

printing

a

record

Woods did not share

this information with anyone else at MetLife, and between November
2018 and May 2019, she never inquired about the DOH Complaints or
Dr.

Liebowitz’s

answers

investigating his claim.
MetLife

responds

to

the

Application

questions

while

(Doc. #89, pp. 10-11.)
that

the

circumstances

surrounding

rescission made the timing reasonable, and that it rescinded the
Policy once it was in possession of all material facts to justify
the rescission.

(Doc. #93, p. 6.)

MetLife cites Woods’ testimony

that she did not recall the application questions, and that Woods
was focused on collecting Dr. Liebowitz’s medical records given

7

See footnote 2.

22

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 23 of 34 PageID 4803

his December 2018 disability claim for a January 2016 injury.
MetLife also states that in June 2019, Jamie Frederick, a

(Id.)

senior claims advisor, took over Dr. Liebowitz’s claim.

(Id. p.

7.) MetLife then details Frederick’s review of the DOH Complaints,
including communications with the DOH, communications with Dr.
Liebowitz, the refusal of premiums in November 2019, and the
ultimate approval of rescission by the claims director.

(Id.)

MetLife argues that, under these circumstances, the time it took
to investigate Dr. Liebowitz’s back-dated disability claim and his
Application before rescinding the Policy was reasonable.
Based on the foregoing, there are disputed issues of material
fact concerning the promptness of MetLife’s rescission.

Woods’

knowledge of the DOH Complaints for a year prior to rescission may
or may not render the rescission untimely.

E. Portland Cement

Corp. v. F.L. Smidth Inc., 2009 WL 3010820, *6 (M.D. Fla. Sept.
16, 2009) (“whether the delay was reasonable is a question of fact
that precludes summary judgment on the issue of rescission”).
Accordingly, the reasonable promptness of MetLife’s rescission
remains a triable matter on the coverage issue.
C.

Affirmative Defenses

While partial summary judgment for MetLife is appropriate on
certain fraud elements of MetLife’s rescission claim, as discussed
supra, Dr. Liebowitz has asserted affirmative defenses which could
preclude MetLife from prevailing.

23

MetLife moves for summary

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 24 of 34 PageID 4804

judgment on all affirmative defenses, so the Court discusses each
in turn.

(Doc. #80, pp. 22-27.)
(1)

The

Failure to State Claim

First

Affirmative

Defense

asserts

that

MetLife’s

Complaint fails to state a cause of action upon which relief may
be granted.

(Doc. #58, p. 4.)

The Court has twice rejected this

argument (Docs. #54, 59), and does so again.

Partial judgment

will be entered against Dr. Liebowitz and in favor of MetLife as
to the First Affirmative Defense because MetLife has stated a cause
of action upon which relief may be granted.
(2) and (3) Answering Ambiguous Questions
Dr. Liebowitz’s Second and Third Affirmative Defenses assert
that

the

Liebowitz

Application
cannot

Application

be

because

questions
found
he

to

were

have

answered

ambiguous

made

the

and

that

misstatements

questions

reasonable interpretation of the questions.

based

Dr.

on

his

on

his

(Doc. #58, pp. 5-7.)

As discussed supra, the Court finds that the questions are not
ambiguous.

However,

Liebowitz’s intent.

a

question

of

fact

remains

as

to

Dr.

The Second and Third Affirmative Defenses

remain to the extent these defenses argue Dr. Liebowitz’s intent
to induce reliance through fraudulent misstatements.
(4) and (5) Non-Conforming Policy Language
Dr. Liebowitz’s Fourth and Fifth Affirmative Defenses assert
that language in the Policy fails to conform with mandatory Florida

24

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 25 of 34 PageID 4805

law, which requires that the Policy be modified in such a way which
precludes rescission. (Doc. #58, pp. 7-8; see also Doc. #78, pp.
12-15.)

This argument is also asserted as part of Dr. Liebowitz’s

Counterclaim Count I and his motion for summary judgment.

(Doc.

#58, p. 16; Doc. #78, pp. 12-15.)
Florida law requires that certain language be contained in
insurance policies in Florida.

One such requirement, pertinent to

this litigation, is Fla. Stat. § 627.607(1), which requires the
following provision:
“Time Limit on Certain Defenses: After 2 years
from
the
issue
date,
only
fraudulent
misstatements in the application may be used
to void the policy or deny any claim for loss
incurred or disability starting after the 2year period.”
Fla. Stat. § 627.607(1) (emphasis added.)

However, Florida law

then provides alternative language, which may be substituted by
the insurer:
(2) A policy may, in place of the provision
set forth in subsection (1), include the
following provision:
“Incontestable:
(a) Misstatements in the Application: After
this policy has been in force for 2 years
during the insured’s lifetime (excluding any
period during which the insured is disabled),
the insurer cannot contest the statements in
the application.
(b) Preexisting Conditions: No claim for loss
incurred or disability starting after 2 years
from the issue date will be reduced or denied
because a sickness or physical condition, not
25

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 26 of 34 PageID 4806

excluded by name or specific description
before the date of loss, had existed before
the effective date of coverage.”
Fla. Stat. § 627.607(2) (emphasis added).

The actual Policy

language provides as follows:
“Time Limit on Certain Defenses: After two
years from the Effective Date of this policy,
or any policy change or reinstatement, no
misstatement,
except
fraudulent
misstatements, made by You on the Application
can be used to void this policy or such policy
change or reinstatement, or to deny a claim
under this policy or the policy change or
reinstatement, for a Disability starting after
the end of such two-year period.”
(Doc. #58-1, p. 13) (emphasis added).
Dr. Liebowitz argues that the Policy language fails to match
the mandatory statutory language because the Policy provision
measures the two-year period from the “effective date” of the
Policy instead of the “issue date.”

(Doc. #78, pp. 12-15.)

Dr.

Liebowitz contends that this deviation requires the current Policy
provision to be stricken and the language of § 627.607(2) to be
imported into the Policy.
The Court agrees that the “effective date” and “issue date”
are not necessarily the same.

For example, the “effective date”

as defined by the Policy is March 6, 2015, while the “issue date”
is not defined in the Policy but could arguably be as late as May
3, 2015 when the Policy was delivered to Dr. Liebowitz.

But the

Florida legislature has provided a remedy for such a situation,

26

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 27 of 34 PageID 4807

which does not include striking one provision and importing other
language.

A Florida statute provides:
The contract
provision:

may

include

the

following

“Conformity with State Statutes: Any provision
of this policy which, on its effective date,
is in conflict with the statutes of the state
in which the insured resides on such date is
hereby amended to conform to the minimum
requirements of such statutes.”
Fla.

Stat.

§

627.627.

The

Policy

expressly

includes

this

provision, stating:
Any provision in this policy which, on the
Effective Date, conflicts with the laws of the
state in which You reside on that date is
amended to meet the minimum requirements of
such laws.
(Doc. #58-1, p. 13.).

See also Fla. Stat. § 627.418 (an otherwise

valid policy not in compliance with the requirements of the code
is not invalid but shall be construed and applied as if in full
compliance).
Thus, the Policy is deemed to include the two-year provision
required by Florida statute, and does not have non-conforming
provisions.

Dr. Liebowitz’s request for summary judgment (Doc.

#78, pp. 12-15) based on the Policy’s nonconforming language is
denied.

MetLife is also entitled to partial judgment as to the

Fourth and Fifth Affirmative Defenses.

27

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 28 of 34 PageID 4808

(6) and (7) Equitable Estoppel
Dr. Liebowitz’s Sixth and Seventh Affirmative Defenses assert
two theories of equitable estoppel.

The Sixth Affirmative Defense

argues that MetLife cannot rescind the Policy because the insurance
agent who assisted Dr. Liebowitz with his application was allegedly
employed by MetLife and did not advise him to disclose the DOH
Complaints.

(Doc. #58, p. 8.)

MetLife seeks judgment on this

defense because Dr. Liebowitz’s own deposition testimony made
clear that the insurance agent that helped him did not work for
MetLife.

(Doc. #80, p. 25 n.8.)

The Seventh Affirmative Defense argues that MetLife cannot
rescind the Policy based on a fraud standard because MetLife’s
rescission letter did not put Dr. Liebowitz on notice of his
alleged fraud.

(Doc. #58, p. 8.)

MetLife seeks judgment on this

defense because the rescission letter quoted the “Time Limit on
Certain

Defenses”

misstatements.
Dr.
counter

provision,

clearly

details

fraudulent

(Doc. #80, p. 25.)

Liebowitz’s
MetLife’s

affirmatives

which

Response
facts

defenses.

does

or

(See

not

dispute

arguments,
Doc.

#89.)

or

otherwise

abandoning
E.g.,

these

Haasbroek

v.

Princess Cruise Lines, Ltd., 286 F. Supp. 3d 1352, 1358 n.4 (S.D.
Fla. 2017) (“When a party fails to address a specific claim, or
fails to respond to an argument made by the opposing party, the
Court deems such claim or argument abandoned.”)

28

In any event,

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 29 of 34 PageID 4809

there are no issues of disputed material facts which would prevent
summary judgment in MetLife’s favor.

MetLife is entitled to

partial judgment as to the Sixth and Seventh Affirmative Defenses.
(8) Statute of Limitations
Dr.

Liebowitz’s

Eighth

(and

final)

Affirmative

Defense

asserts that MetLife’s rescission based on fraud is barred by the
applicable Florida statute of limitations.
summary judgment on this defense.

MetLife moves for

(Doc. #80, p. 25.)

Dr.

Liebowitz also moves for summary judgment based on the statute of
limitations.

(Doc. #78, pp. 15-17.)

Both parties agree that the applicable statute of limitations
for MetLife’s rescission claim is four years because MetLife’s
claim is based in fraud.

See Fla. Stat. § 95.11(3)(j).

#78, p. 15; Doc. #90, p. 13.)

(Doc.

But the parties disagree on when

MetLife’s claim accrued and whether the claim is time-barred.
MetLife asserts that its claim accrued in December 2018, after Dr.
Liebowitz submitted his disability claim.

(Doc. #90, pp. 13-14.)

Dr. Liebowitz asserts that MetLife’s claim accrued at the time of
his Application and the Policy’s issuance (between March and May
2015)

because:

(1)

MetLife

could

have,

with

due

diligence,

discovered the misstatements in the Application in 2015; and (2)
MetLife did not plead delayed discovery.
#89, pp. 16-20; Doc. #91, pp. 5-6.)

29

(Doc. #78, p. 16; Doc.

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 30 of 34 PageID 4810

Under Florida law, the statute of limitations begins to run
when the cause of action accrues.
1179, 1185 (Fla. 2000).

Hearndon v. Graham, 767 So. 2d

Generally, a cause of action accrues, and

the statute of limitations therefore begins to run, on the date
the last element constituting the cause of action occurs.
1184–85 (citing Fla. Stat. § 95.031).

Id. at

In fraud claims, however,

the “delayed discovery rule” may postpone the running of the
statute of limitations until “the facts giving rise to the cause
of action were discovered or should have been discovered with the
exercise of due diligence.”

Fla. Stat. § 95.031(2)(a).

As a

general rule, an insurer is entitled to rely on statements in an
application and does not need to search public records to verify
them.

Indep. Fire Ins. Co. v. Arvidson, 604 So. 2d 854, 856 (Fla.

4th DCA 1992)) (“[a]n insurer is entitled to rely upon the accuracy
of the information in an application, and has no duty to make
additional inquiry”); Nembhard v. Universal Prop. & Cas. Ins. Co.,
No. 3D20-1383, 2021 WL 3640525, at *3 (Fla. 3d DCA Aug. 18, 2021)
(citations omitted) (“An insurance company has the right to rely
on an applicant’s representations in an application for insurance
and is under no duty to inquire further, unless it has actual or
constructive knowledge that such representations are incorrect or
untrue.”).
The record establishes the following chronology:

30

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 31 of 34 PageID 4811

•

January 30, 2015: Dr. Liebowitz signs the Application.
(Doc. #97, ¶ 9(1).)

•

April 16 – May 3, 2015:
The Policy issues with an
effective date of March 6, 2015. (Id. ¶ 9(4).)

•

May 3, 2015: MetLife delivers the Policy to Dr.
Liebowitz.
Dr. Liebowitz signs an Amendment to the
Application, affirming “[t]here are no facts or
circumstances which would require a change in the
MetLife
answers in the application.”
(Id. ¶ 9(7).)
undertakes no further investigation into Dr. Liebowitz
or his Application. (Id. ¶ 9(8).)

•

September 18, 2018: MetLife mails a claims form to Dr.
Liebowitz. (Doc. #87-1.)

•

November 15, 2018: MetLife mails a second letter to Dr.
Liebowitz asking whether he intends to follow through
with his disability claim. (Doc. #87-2.)

•

November 29, 2018: Woods accesses the DOH website and
prints Dr. Liebowitz’s medical licensing information.
(Doc. #87-3.)

•

December 18, 2018:
Dr. Liebowitz files his initial
claims forms for benefits. (Doc. #80, ¶43.)

•

December 28, 2018: Woods prints additional information
from the DOH website concerning Dr. Liebowitz’s medical
licensing. (Docs. ## 87-6, 87-7.)

•

December 2018 – December 2019: MetLife investigates Dr.
Liebowitz’s disability claim.

•

December 30, 2019: MetLife sends Dr. Liebowitz a Notice
of Rescission. (Doc. #97, ¶9(21).)

•

April 15, 2020:
#1.)

MetLife files federal lawsuit.

(Doc.

Based on this record, MetLife’s rescission claim accrued, at
the earliest, on November 29, 2018, when Woods reviewed the DOH
website and arguably could have, with due diligence, discovered

31

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 32 of 34 PageID 4812

the DOH Complaints.
that

MetLife

had

The record contains no evidence to suggest
actual

or

constructive

knowledge

that

the

Application statements were false, and so MetLife was entitled to
rely on Dr. Liebowitz’s statements in his Application without any
additional inquiry. MetLife’s April 15, 2020 complaint was timely.
Dr.

Liebowitz’s

argument

that

MetLife

was

affirmatively plead delayed discovery also fails.

required

to

The statute of

limitations is an affirmative defense, and MetLife need not have
negated it in its Complaint, La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004), nor have filed a reply.

Fed.

R. Civ. P. 12(a)(1)(C); Miller v. Abercrombie & Kent, Inc., No.
08-61471-CIV, 2009 WL 259672, at *1 (S.D. Fla. Feb. 4, 2009) (no
requirement

in

federal

defenses be filed).

pleading

that

a

reply

affirmative

Dr. Liebowitz motion for summary judgment

based on the statute of limitations is denied.
17.)

to

(Doc. #78, pp. 15-

MetLife is entitled to partial judgment as to the Eighth

Affirmative Defense.
D.

Summary

The Court denies Dr. Liebowitz’s motion for summary judgment
in its entirety.

As to MetLife’s motion, the Court grants partial

summary judgment in favor of MetLife on the first, second, and
fourth components of the fraud elements of MetLife’s rescission
claim.

The Court also enters partial summary judgment in favor of

32

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 33 of 34 PageID 4813

MetLife on the First, Fourth, Fifth, Sixth, Seventh, and Eighth
Affirmative Defenses.
Pursuant to Fed. R. Civ. P. 56(g), the Court finds that the
following material facts are not genuinely in dispute and will
treat them as established for the coverage determination in this
case:
1.

Dr. Liebowitz made false statements concerning material

facts when answering Questions 5(i) and 17 in the Application.
2.

Dr. Liebowitz knew the representations he made when

answering Questions 5(i) and 17 in the Application were false.
3.

MetLife was consequently injured when acting in reliance

of Dr. Liebowitz’s misrepresentations.
4.

The Policy includes the provision set forth in Fla. Stat.

§ 627.607(1).
5.

Dr. Liebowitz was not assisted by a MetLife insurance

agent when filling out the Application.
6.

MetLife put Dr. Liebowitz on notice of its intent to

rescind the Policy based on Dr. Liebowitz’s alleged fraud.
7.

MetLife relied on the statements made by Dr. Liebowitz

in his Application in 2015 and did not investigate his answers
until after Dr. Liebowitz filed his claim.
E.

Motion for Entry of Judgement

As a final matter, also pending before the Court is Dr.
Liebowitz’s Motion for Entry of Judgment Under Rule 54(b) Following

33

Case 2:20-cv-00276-JES-MRM Document 103 Filed 01/11/22 Page 34 of 34 PageID 4814

Entry of Partial Summary Judgment (Doc. #95), filed on October 27,
2021.

In this motion, Dr. Liebowitz assumes he will prevail on

the coverage issue following these cross motions for summary
judgment, and requests the Court enter judgment in his favor.
Since this did not happen, the motion is denied.
Accordingly, it is now
ORDERED:
1.

Dr. Liebowitz’s motion for summary judgment (Doc. #78)
is DENIED.

2.

MetLife’s motion for summary judgment (Doc. #80) is
DENIED IN PART AND GRANTED IN PART, as set forth above.

3.

Dr. Liebowitz’s motion for entry of judgment under Rule
54(b) (Doc. #95) is DENIED.

4.

The

Clerk

shall

withhold

entry

of

partial

summary

judgment until further order by the Court.
5.

The Court will schedule a bench trial on the remaining
coverage issues in a separate order.

DONE and ORDERED at Fort Myers, Florida, this
of January, 2022.

Copies:
Counsel of Record

34

11th

day