Metropolitan Life Insurance Company v. M.D. Fred A. Liebowitz

USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 1 of 74

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-11794
____________________

METROPOLITAN LIFE INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
M.D. FRED A. LIEBOWITZ,

Defendant-Counter Claimant-Appellant.

____________________

Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00276-JES-MRM
____________________
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2 Opinion of the Court 22-11794

Before GRANT, TJOFLAT, Circuit Judges, and HUFFAKER,* District
Judge.
PER CURIAM:
Dr. Fred A. Liebowitz appealed the district court’s denial of
his motion for judgment on the pleadings (Doc. 59), its denial of his
motion for summary judgment and partial grant of summary
judgment for Metropolitan Life Insurance Company (Doc. 103), its
opinion and order entering judgment for Metropolitan Life after
trial (Doc. 121), its judgment (Doc. 122), and its amended judgment
(Doc. 130).
After careful review of the record and briefs, and with the
benefit of oral argument, we AFFIRM. The district court’s well-
reasoned and thorough opinions and orders are appended.

*Honorable R. Austin Huffaker, United States District Judge for the Middle
District of Alabama, sitting by designation.
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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 matter comes before the Court on review of defendant’s

Motion for Judgment on the Pleadings (Doc. #55) filed on May 14,

2021. Plaintiff filed an Opposition (Doc. #57) on May 28, 2021.

For the reasons set forth below, the motion is denied.

I.

The Court previously described the factual and procedural

history of this case as follows:

Plaintiff Metropolitan Life Insurance Company
(plaintiff or MetLife) initiated this matter by filing
a one-count Complaint against defendant Fred A.
Liebowitz (defendant or Dr. Liebowitz). (Doc. #1.) The
Complaint alleges that Dr. Liebowitz is a pain
management physician who filed an application with
MetLife for a disability insurance policy in January
2015. (Id. ¶ 5.) MetLife approved Dr. Liebowitz for
coverage and issued him a disability policy (the
Policy). (Id. ¶ 6.)

The Complaint alleges that in December 2018 Dr.
Liebowitz submitted a claim under the Policy for an ankle
injury. (Id. ¶ 15.) During its investigation of this
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claim, MetLife discovered what it believes to be false
information or omissions in the application filed by Dr.
Liebowitz regarding his financial, occupational, and
professional status. (Id. ¶¶ 10-12, 15.) Specifically,
the Complaint alleges Dr. Liebowitz failed to advise
MetLife that he was the subject of multiple Florida
Department of Health (DOH) investigations for improperly
prescribing narcotics to patients. (Id. ¶ 12.) These
investigations would subsequently lead to the DOH
issuing a reprimand against Dr. Liebowitz’s license,
imposing a fine and costs, and restricting Dr. Liebowitz
from prescribing controlled substances. (Id. ¶ 14.)

In response to learning these facts, MetLife
returned all premiums paid by Dr. Liebowitz with respect
to the Policy, with interest. (Id. ¶ 22.) Dr. Liebowitz
rejected the tendered refund. (Id.)

The Complaint seeks “rescission of the Policy
pursuant to Fla. Stat. § 627.409 and Florida law.” (Id.
¶ 9.) According to the Complaint, MetLife (1)
justifiably relied on Dr. Liebowitz’s fraudulent
misrepresentations and omission of material facts in the
application, and (2) would not have issued the Policy
had it known the true facts. (Id. ¶¶ 17, 18.) The
Complaint asserts the Policy “is void ab initio under
Florida common law and pursuant to Fla. Stat. § 627.409.”
(Id. ¶ 19.) Federal jurisdiction is premised on
diversity of citizenship pursuant to 28 U.S.C. § 1332.
(Id. ¶ 1.)

Dr. Liebowitz filed a Second Amended Answer,
Affirmative Defenses and Counterclaim. (Doc. #32). Dr.
Liebowitz’s two-count Counterclaim seeks declaratory
relief as to whether, among other things, MetLife had
the right to unilaterally rescind the Policy and whether
MetLife must honor the Policy by payment of disability
benefits. (Id. ¶¶ 1, 27.) Dr. Liebowitz seeks a
declaration that “the disability policy issued to [him]
by MetLife to be in full force and effect.” (Id. at ¶
27.)[ 1]

1 Dr. Liebowitz has since filed a Third Amended Answer,
Affirmative Defenses, and Counterclaim (Doc. #58), but the
differences between second and third versions are negligible.

2
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(Doc. #54, pp. 1-3 (footnote omitted)).

Dr. Liebowitz previously filed a motion to dismiss for lack

of subject matter jurisdiction. (Doc. #38.) Dr. Liebowitz argued

that because MetLife had previously unilaterally rescinded the

Policy, the Court lacked subject matter jurisdiction over the

Complaint’s rescission claim. (Id. pp. 3-10.) The Court rejected

the argument, finding that under Florida law “MetLife must allege

that it rescinded the Policy to state a rescission claim.” (Doc.

#54, p. 7.)

Dr. Liebowitz has now filed the motion for judgment on the

pleadings currently before the Court. (Doc. #55.) In it, Dr.

Liebowitz argues that the Complaint fails to make factual

allegations necessary to plead a recission claim, and therefore

the Complaint is fatally defective. (Id. p. 4.) Because the

pleadings are closed, Dr. Liebowitz requests the Court enter

judgment in his favor on MetLife’s rescission claim. (Id. p. 5.)

II.

A. Legal Standard

The Federal Rules of Civil Procedure provide that “[a]fter

the pleadings are closed-but early enough not to delay trial-a

party may move for judgment on the pleadings.” Fed. R. Civ. P.

12(c). “Judgment on the pleadings is appropriate when there are

no material facts in dispute, and judgment may be rendered

by considering the substance of the pleadings and any judicially

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noticed facts.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,

1370 (11th Cir. 1998) (citations omitted). When reviewing a motion

for judgment on the pleadings, the court must view the facts in a

light most favorable to the nonmoving party. Id. A judgment on

the pleadings can be granted only if the nonmoving party can prove

no set of facts which would allow it to prevail. Palmer & Cay,

Inc. v. Marsh & McLennan Cos., Inc., 404 F.3d 1297, 1303 (11th

Cir. 2005) (citations omitted).

B. Analysis

Under Florida law, a plaintiff must adequately plead six facts

in order to state a cause of action for recission of a 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, 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.

Barber v. Am.’s Wholesale Lender, 542 F. App’x 832, 836 (11th Cir.

2013) (quoting Billian v. Mobile Corp., 710 So.2d 984, 991 (Fla.

4th DCA 1998)). The Florida Supreme Court has further stated that

a party seeking recission must

allege facts which show that upon discovery of the
mistake he, with reasonable promptness, denied the
contract as binding upon him and that thereafter he was
consistent in his course of disavowal of it. For if,

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after acquiring knowledge of the mistake, he either
remains silent when he should speak or in any manner
recognizes the contract as binding upon him, ratifies or
accepts the benefits thereof, he will be held to have
waived his right to rescind.

Rood Co. v. Bd. of Pub. Instruction of Dade Cty., 102 So. 2d 139,

141 (Fla. 1958).

In his motion, Dr. Liebowitz argues that the Complaint fails

to allege MetLife (1) rescinded the Policy and (2) did so promptly

after discovery of the grounds justifying rescission. (Doc. #55,

p. 4.) Dr. Liebowitz argues this failure renders the Complaint

fatally deficient and justifies judgment in his favor. (Id. pp.

4-5.) The Court disagrees.

While Dr. Liebowitz is correct that the Complaint does not

specifically allege MetLife rescinded the policy promptly after

discovery of Dr. Liebowitz’s alleged misrepresentations, that is

the inference when viewing the allegations in the light most

favorable to MetLife. Hawthorne, 140 F.3d at 1370. The Complaint

alleges MetLife discovered Dr. Liebowitz’s misrepresentations

while investigating his disability claim, and that prior to filing

the Complaint it tendered a check to Dr. Liebowitz refunding all

premiums he had paid with respect to the Policy. (Doc. #1, ¶¶ 15,

22.) It also alleges MetLife performed all conditions precedent

to filing suit. (Id. ¶ 8); see also Fed. R. Civ. P. 9(c) (“In

pleading conditions precedent, it suffices to allege generally

that all conditions precedent have occurred or been performed.”).

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The Court finds such allegations sufficient to infer MetLife

rescinded the policy promptly after discovery of Dr. Liebowitz’s

misrepresentations, and therefore the Complaint sufficiently

alleges facts to state a claim for rescission. See Lake v. Howell,

2014 WL 12695693, *4 (N.D. Ga. June 16, 2014) (recognizing that

“technically” defendant may be correct that plaintiff failed to

allege specific facts, but nonetheless denying motion for judgment

on the pleadings because of the reasonable inferences arising from

the complaint’s allegations). 2

Accordingly, it is now

ORDERED:

Defendant’s Motion for Judgment on the Pleadings (Doc. #55)

is DENIED.

2It is worth noting that there is no dispute among the parties
that MetLife rescinded the Policy prior to filing the Complaint.
Not only does Dr. Liebowitz admit MetLife attempted to refund the
premiums, he has filed counterclaims challenging the
appropriateness of MetLife’s unilateral rescission. (Doc. #58,
pp. 4, 12-30.) Dr. Liebowitz has also provided the Court with a
copy of the letter MetLife sent informing him the Policy was
rescinded. (Doc. #38-1, pp. 12-14.) The letter indicates MetLife
confirmed the DOH investigations in June 2019 and rescinded the
Policy in December 2019. (Id. pp. 12-13.) Whether this
constitutes “reasonable promptness” is a question of fact beyond
the scope of a motion for judgment on the pleadings. See E.
Portland Cement Corp. v. F.L. Smidth Inc., 2009 WL 3010820, *5
(M.D. Fla. Sept. 16, 2009) (noting that whether “notice was given
with reasonable promptness is generally a question of fact”);
Orlando Nightclub Enters., Inc. v. James River Ins. Co., 2007 WL
4247875, *5 (M.D. Fla. Nov. 30, 2007) (noting that judgment on the
pleadings would be inappropriate because of a question of fact).

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DONE AND ORDERED at Fort Myers, Florida, this 9th day of

June, 2021.

Copies:
Parties of record

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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

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.
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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

treating patients for pain and prescribing narcotics. (Id. ¶

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.)

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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 insurance carrier,

throughout the DOH administrative process. (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.) The DOH offer was not accepted

by Dr. Liebowitz.

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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. (Doc. #89,

p. 2.) MetLife made no investigation to determine the accuracy of

the statements, but relied solely on the answers. (Doc. #97, ¶

9(8).) 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,

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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 restricted his ability to

prescribe any controlled substance. (Doc. #80, ¶ 39.)

D. 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
2

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.

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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. (Doc.

#97, ¶ 9(21).) The Notice set forth the alleged 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. (Id. ¶ 21-22.)

E. 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.” (Doc. #1, Prayer for

Relief.) Dr. Liebowitz, in turn, 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 determine the “coverage” issue, with a bench trial if

necessary. (Doc. #44.) If there is coverage, a second phase will

determine what benefits are due to Dr. Liebowitz, i.e., the

“damages” issue, with a jury trial if necessary. (Id.) The cross-

motions for summary judgment at issue in this Opinion and Order

concern the coverage issue, only. (Docs. ## 78, 80.)

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

(1986). “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

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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,

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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

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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

3The 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 two-
year provision. (Doc. #80, pp. 17-19.)

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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. (Doc.

#89, p. 3.) 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. (Docs.

## 80, 90, 93.) 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.)

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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. Butler, 44 So. 3d at

105. 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 Application questions are

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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 proof of fraud, and he is entitled to summary

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

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

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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?” (Doc.

#58-1, p. 18.) Dr. Liebowitz answered, “No.” (Id.) 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 financial stability. An

14
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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?” (Doc. #58-1, p. 22.) Dr. Liebowitz

answered, “No.” (Id.) Dr. Liebowitz argues that the “under

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

context of an administrative proceeding to discipline a

professional license holder,” “really has no meaning.” (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.
5

That expert evidence was excluded by Court Order. (Doc. #94).

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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. Dr.

Liebowitz’s request for summary judgment based on 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

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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
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 27 of 74

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 answering the Application

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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. Butler, 44 So.

3d at 105. This element is clearly 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.

6Although, 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.

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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 not seek to rescind the Policy with reasonable

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

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

take a reasonable amount of time to investigate the facts

justifying rescission, though.” 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.) But Dr. Liebowitz was not required to do so. E.g.,

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

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January 4, 2016; 7 and (2) MetLife provided notice of its rescission

on December 30, 2019. (Doc. #80, ¶ 43; Doc. #97, ¶ 9(21).)

Dr. Liebowitz argues that MetLife unreasonably delayed

rescission for over a year with knowledge of the DOH Complaints,

and therefore MetLife waived any ability to rescind. (Doc. #89,

pp. 7-16.) 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 licensing records which disclosed the DOH

Complaints. (Doc. #86-2, pp. 6-8; Doc. #87-3.) On December 28,

2018, Woods conducted a similar search, printing a record

disclosing the DOH complaints. (Doc. #87-7.) 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 to the Application questions while

investigating his claim. (Doc. #89, pp. 10-11.)

MetLife responds 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.

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his December 2018 disability claim for a January 2016 injury.

(Id.) MetLife also states that in June 2019, Jamie Frederick, a

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. MetLife moves for summary

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judgment on all affirmative defenses, so the Court discusses each

in turn. (Doc. #80, pp. 22-27.)

(1) Failure to State Claim

The 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 Application questions were ambiguous and that Dr.

Liebowitz cannot be found to have made misstatements on his

Application because he answered the questions based on his

reasonable interpretation of the questions. (Doc. #58, pp. 5-7.)

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

ambiguous. However, a question of fact remains as to Dr.

Liebowitz’s intent. 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

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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 2-
year 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

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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
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which does not include striking one provision and importing other

language. A Florida statute provides:

The contract may include the following
provision:

“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.

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(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” provision, which clearly details fraudulent

misstatements. (Doc. #80, p. 25.)

Dr. Liebowitz’s Response does not dispute or otherwise

counter MetLife’s facts or arguments, abandoning these

affirmatives defenses. (See Doc. #89.) E.g., 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.”) In any event,

28
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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. MetLife moves for

summary judgment on this defense. (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). (Doc.

#78, p. 15; Doc. #90, p. 13.) 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. (Doc. #78, p. 16; Doc.

#89, pp. 16-20; Doc. #91, pp. 5-6.)

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Under Florida law, the statute of limitations begins to run

when the cause of action accrues. Hearndon v. Graham, 767 So. 2d

1179, 1185 (Fla. 2000). 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. Id. at

1184–85 (citing Fla. Stat. § 95.031). 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:

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• 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
answers in the application.” (Id. ¶ 9(7).) MetLife
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: MetLife files federal lawsuit. (Doc.
#1.)

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
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the DOH Complaints. The record contains no evidence to suggest

that MetLife had 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 required to

affirmatively plead delayed discovery also fails. 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 pleading that a reply to affirmative

defenses be filed). Dr. Liebowitz motion for summary judgment

based on the statute of limitations is denied. (Doc. #78, pp. 15-

17.) 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
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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

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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 11th day

of January, 2022.

Copies:
Counsel of Record

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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 matter came before the Court on March 2 through 4, 2022,

for a bench trial concerning two issues remaining after

consideration of cross motions for summary judgment. The Court

heard testimony from Dr. Fred Liebowitz, Jamie Frederick, John

Dieguez, William Whitney, Theresa Woods, and Ronald Graff. 1 The

Court also received a number of exhibits from both sides and heard

closing arguments from counsel. Both parties also filed post-

trial memorandum and/or trial briefs. (Docs. ## 118, 119, 120.)

As required by Fed. R. Civ. P. 52, the Court makes findings of

fact and conclusions of law as set forth below.

I.

1The testimony of Woods and Graff were submitted through
deposition designations by the parties. (Pl. Ex. 131; Def. Ex.
48.) At the bench trial, Plaintiff objected to the admission of
Graff’s deposition testimony on relevance grounds. Plaintiff’s
objection is overruled.
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 45 of 74

In its Complaint, plaintiff Metropolitan Life Insurance

Company (MetLife) seeks court-ordered recission of defendant Dr.

Fred Liebowitz’s (Dr. Liebowitz) disability insurance policy (the

Policy). Specifically, MetLife seeks a Court order “rescinding

the Policy, and declaring that Liebowitz has no right, title, or

interest in the Policy.” (Doc. #1, Prayer for Relief.) In his

Third Amended Counterclaim, Dr. Liebowitz asserts two

interconnected counterclaims seeking reinstatement of the Policy

and payment of benefits under the Policy. (Doc. #58.)

Discovery and trial in this matter were bifurcated. The first

(current) phase will determine the insurance coverage issue, i.e.,

whether there is an enforceable Policy between Dr. Liebowitz and

MetLife or whether MetLife can properly rescind the Policy. If

coverage is established, the second phase is intended to address

what, if any, benefits are due to Dr. Liebowitz under the Policy.

In a prior Opinion and Order (Doc. #103) resolving cross-

motions for summary judgment, the Court denied Dr. Liebowitz’s

motion for summary judgment in its entirety. As to MetLife’s

motion, the Court granted 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 granted

partial summary judgment in favor of MetLife on Dr. Liebowitz’s

First, Fourth, Fifth, Sixth, Seventh, and Eighth Affirmative

Defenses. Additionally, pursuant to Fed. R. Civ. P. 56(g), the

2
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Court found that the following material facts were not genuinely

in dispute and treated 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.

(Doc. #103, p. 33.)

The two primary remaining issues to be resolved in the bench

trial are whether MetLife established by a preponderance of the

evidence that: (1) Dr. Liebowitz made the false statements on the

insurance application with fraudulent intent, and (2) MetLife

rescinded the Policy within a reasonable period of time. The Court

finds, for the reasons set forth below, that Dr. Liebowitz did

3
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 47 of 74

have such fraudulent intent and that MetLife did rescind the Policy

within a reasonable period of time.

II.

Much of the evidence presented at trial was repetitious of

the evidence presented in connection with the summary judgment

motions. The parties previously submitted a “Statement of

Undisputed Issues of Fact” in the Joint Pretrial Statement (Doc.

#97, pp. 6-11). It continues to be the case that “[b]oth parties

contend that the facts are essentially undisputed . . .” (Doc.

#97, p. 11), although the conclusions they draw from the facts

vary greatly. The Court finds the following facts have been proven

by at least a preponderance of the evidence:

A. DOH Investigations and Complaints

For approximately 30 years Dr. Liebowitz has been a pain

management physician, and at all relevant times ran a pain

management clinic in the Fort Myers, Florida area. (Doc. #97, ¶

9(1)). Dr. Liebowitz’s primary source of income was treating

patients for pain and prescribing narcotics. (Id. ¶ 9(3).) Dr.

Liebowitz is not board certified.

By a personally delivered letter dated May 10, 2010, the

Florida Department of Health (DOH) notified Dr. Liebowitz that it

was conducting a confidential investigation of a complaint filed

against him in connection with the medical care he provided to

different patients. (Id. ¶ 9(10); Pl. Ex. 12.) Dr. Liebowitz

4
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notified his malpractice insurance carrier of the DOH

investigation, and his carrier hired attorney William Whitney (Mr.

Whitney) to represent Dr. Liebowitz. (Doc. #97, ¶ 9(12).) Around

this same time, the DOH initiated two additional investigations

against Dr. Liebowitz, relating to his care of approximately

thirteen patients. (See Pl. Ex. 98D (describing cases).)

The DOH proceeded with the three confidential investigations

until early 2013. Dr. Liebowitz testified that, from his point of

view, the three investigations appeared largely dormant during

these years, which he attributed to weakness of the cases.

Starting in January 2013, 2 after a panel of the DOH found

probable cause, the DOH filed and served Dr. Liebowitz with three

separate Administrative Complaints (the “DOH Complaints”) alleging

substandard medical care was provided to certain patients. (Doc.

#97 ¶ 9(11); Pl Ex. 27.) 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. The DOH Complaints requested that the Board

2 The Court’s Opinion and Order granting partial summary
judgment (Doc. #103) stated “in 2010 and 2011” the Administrative
Complaints were filed. As pointed out during the bench trial,
this was incorrect. Dr. Liebowitz was served with confidential
notices from the DOH that they were investigating his license in
2010 and 2011. (Pl. Ex. 12.) The official Administrative
Complaints were filed and became available in public record in
2013 and 2014. This correction is not material to the Court’s
summary judgment Opinion and Order.

5
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 49 of 74

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. On February 14, 2013, Dr.

Liebowitz signed an Election of Rights form disputing the facts in

the DOH Complaints and requesting a formal hearing. (Def. Ex.

39.) Dr. Liebowitz testified at trial, and has always maintained,

that he did nothing improper and that the DOH would not be able to

prove otherwise. Dr. Liebowitz testified that, based on the advice

of counsel, he believed that nothing in the DOH allegations was of

sufficient severity to warrant the loss of his medical license.

Throughout the DOH proceedings, from the confidential

complaints to the DOH Complaints, Mr. Whitney kept Dr. Liebowitz

apprised of significant developments. (Doc. #97, ¶ 9(13).) Dr.

Liebowitz testified that he worked hard to defend himself against

the DOH’s allegations with counsel, painstakingly reviewing

medical records and expert opinions, because he felt he had done

nothing wrong. Dr. Liebowitz stayed current on matters related to

the DOH Complaints because the proceedings were important to his

medical practice and reputation. Dr. Liebowitz testified that

both he and Mr. Whitney felt Dr. Liebowitz would be successful in

his defense.

In July 2014, the DOH provided Dr. Liebowitz with a proposed

settlement (the 2014 Settlement Agreement) (Pl. Ex. 35) for the

6
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three pending DOH Complaints. Dr. Liebowitz and Mr. Whitney

discussed the proposal in detail. Around this same time, Dr.

Liebowitz was sent another notice from the DOH concerning a fourth,

still-confidential investigation into his medical care of

patients. 3 In September 2014, Dr. Liebowitz hired a second

attorney (Allan Grossman 4) with his own funds to provide another

review of his cases and to evaluate the 2014 Settlement Agreement.

(Pl. Ex. 98D.)

The proposed 2014 Settlement Agreement contemplated

resolution of Dr. Liebowitz’s three pending DOH Complaints and did

not consider the fourth investigation. The 2014 Settlement

Agreement included a reprimand against Dr. Liebowitz’s medical

license; a “death penalty” provision for Dr. Liebowitz’s

specialized practice, which, if accepted, would have prohibited

Dr. Liebowitz from prescribing controlled substances; the

imposition of a fine and costs; and other non-economic conditions.

Dr. Liebowitz testified he never took this proposal seriously, and

never accepted it.

Dr. Liebowitz did, however, on advice of counsel, take steps

in late 2014 to enhance his settlement negotiation position. Dr.

3This would ultimately become an official, public DOH
Complaint in late 2015.
4Mr. Grossman is the former general counsel of the Florida
Board of Medicine.

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USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 51 of 74

Liebowitz: (1) hired a risk management consultant to evaluate his

medical practice (Pl. Ex. 98E); (2) took various continuing medical

education courses related to his specialty; and (3) went to

Colorado for a physician’s assessment (Pl. Ex. 98F). Dr. Liebowitz

paid for these services out-of-pocket.

B. MetLife Insurance Application and Policy Issuance

For the prior 10-15 years, Dr. Liebowitz’s regular insurance

agent was Mark Vertich (Mr. Vertich), an independent insurance

broker. Sometime in mid- to late-2014, Dr. Liebowitz spoke with

Mr. Vertich about obtaining disability insurance. Dr. Liebowitz

testified that, several years before speaking with Mr. Vertich

about disability insurance, he had a disability policy with another

insurer for 10-15 years but had let the policy lapse for several

years before seeking the MetLife policy. Dr. Liebowitz decided

that, considering his current family situation, he had made a

mistake in letting the policy lapse. It is unclear why Dr.

Liebowitz or Mr. Vertich chose to pursue a MetLife policy, since

at the time Mr. Vertich was not an authorized broker for MetLife.

In any event, on January 30, 2015, Dr. Liebowitz and Mr.

Vertich sat at a kitchen table at Dr. Liebowitz’s office to fill

out MetLife’s 11-page application (the “Application”) (Pl. Ex. 3)

and 2-page Health Questionnaire Supplement (Pl. Ex. 6) for

disability insurance. Mr. Vertich read Dr. Liebowitz the questions

on the Application and Supplement, Dr. Liebowitz dictated his

8
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 52 of 74

responses to Mr. Vertich, Mr. Vertich transcribed the information,

and Dr. Liebowitz signed the document. There were no instructions

provided with the Application and Mr. Vertich did not provide any

instruction to Dr. Liebowitz. Dr. Liebowitz assumed MetLife wanted

an applicant to be truthful and honest and to fill out everything

to the best of their knowledge. Indeed, the Application provides

that all answers are “to the best of [his] knowledge and belief.”

(Pl. Ex. 3, p. 6.) Dr. Liebowitz testified that the information

in the Application was transcribed correctly by Mr. Vertich. The

total process to complete the Application took 10-15 minutes.

The Application included the following two relevant questions

and answers:

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. pp. 1, 5.) Dr. Liebowitz maintains to this day that these

answers were truthful. Prior to issuing the Policy, MetLife made

no investigation to determine the accuracy of Dr. Liebowitz’s

9
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 53 of 74

answers to the two questions in the Application, relying solely on

his answers. (Doc. #97, ¶ 9(8).)

MetLife processed Dr. Liebowitz’s Application and issued the

Policy between April 16 and May 3, 2015. (Doc. #97, ¶ 9(4); Pl.

Ex. 1.) The Policy was backdated to March 6, 2015 to preserve Dr.

Liebowitz’s age (54 years old at the time of his Application).

(Pl. Ex. 1, p. 3.) Between May 3 and 4, 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” and that “[t]o the best of my knowledge and belief,

the statements and answers in the application as amended by this

form are true and complete as of the date this form is signed.”

(Pl. Ex. 9.)

The Policy itself is an occupational disability insurance

policy. (Pl. Ex. 1.) MetLife issues this type of insurance policy

to high-wage earners, such as lawyers and doctors, like Dr.

Liebowitz. Occupational disability insurance policies are

designed to protect a wage-earner’s income should the insured be

unable to work because of a disability. The Policy provides for

both total disability and residual disability benefits. (Id. p.

3.) If Dr. Liebowitz was ever found to be totally disabled under

the Policy, he would receive $16,550 per month in benefits.

10
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 54 of 74

C. Resolution of the DOH Complaints

Returning to Dr. Liebowitz’s DOH proceedings, the intensity

of the proceedings seemed to ebb and flow over the years, sometimes

with greater interest and activity than at other times. By March

2016, although Dr. Liebowitz continued to maintain his innocence,

Dr. Liebowitz advised Mr. Whitney of his willingness to negotiate

a settlement. (Pl. Ex. 99.) However, there is nothing to indicate

Dr. Liebowitz and the DOH talked settlement in 2016 and Mr. Whitney

testified that the proposed 2014 Settlement Agreement remained on

the table. By 2017 Dr. Liebowitz felt that a perceived opioid

epidemic caused the narcotics prescription practices of physicians

to receive closer scrutiny. But the DOH proceedings remained

relatively quiet. Finally, in December 2017 the Sun-Sentinel

described Dr. Liebowitz’s DOH Complaints in an on-line article

titled “Dangerous doctors, Pain pill docs keep prescribing despite

state charges.” (Pl. Ex. 40.) This publication and other

pressures about the length of Dr. Liebowitz’s DOH proceedings

appeared to create renewed interest in the DOH prosecuting Dr.

Liebowitz’s cases.

By 2018, the DOH amended the DOH Complaints, reduced the

scope of the allegations (Pl. Ex. 115B) to 16 counts, and told Mr.

Whitney they were willing to administratively try those counts.

As this new prosecution progressed, Mr. Whitney’s evaluation of

the cases began to change, recognizing that it would be difficult

11
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 55 of 74

for Dr. Liebowitz to be successful on all 16 counts. (Pl. Ex.

45.) Dr. Liebowitz became focused on the three-strike rule, under

which his medical license could be threatened if the administrative

judge found three violations of the standard of care. Also, Dr.

Liebowitz’s defense funds available through his malpractice

insurer were beginning to run low, and the anticipated costs of

defending himself were significant. By August 2018 these

circumstances caused Dr. Liebowitz and his attorney to engage in

extensive discussions regarding settlement. (Id.)

On September 11, 2018, pursuant to the advice of counsel, Dr.

Liebowitz entered into a settlement agreement (the 2018 Settlement

Agreement) with the DOH. (Doc. #97, ¶ 9(15); Pl. Ex. 60.) The

Board of Medicine approved the 2018 Settlement Agreement at a

hearing on December 7, 2018 and issued a Final Order approving the

2018 Settlement Agreement on December 18, 2018. The Clerk of the

Department of Health docketed the Final Order on December 20, 2018.

(Pl. Ex. 60.) Among other things, the Final Order issued a

reprimand against Dr. Liebowitz’s medical license, restricted his

DEA license and his ability to prescribe any controlled substance

until he complied with certain requirements, imposed a fine and

costs, and imposed other non-economic conditions. (Id.) Despite

the settlement, Dr. Liebowitz testified at trial that to this day

he feels he did everything properly and within the required

standard of care.

12
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D. Dr. Liebowitz’s Insurance Claim

In September 2018, when Dr. Liebowitz was filling out the

health section of a life insurance policy application with Mr.

Vertich, he discussed difficulties with his left ankle arising

from October-November 2014. 5 Mr. Vertich reminded Dr. Liebowitz

of his Policy with MetLife, but Dr. Liebowitz did not perceive

himself as disabled at the time and was uncertain whether he wanted

to file a claim. Nonetheless, on September 17, 2018, Mr. Vertich

called MetLife about a disability claim to be filed by Dr.

Liebowitz. (Pl. Ex. 48.)

The next day, MetLife sent Dr. Liebowitz a letter enclosing

an initial claim form. (Pl. Ex. 49.) On October 22, 2018, Theresa

Woods, 6 a MetLife claims adjuster, spoke with Mr. Vertich on the

phone about the potential claim by Dr. Liebowitz. (Pl. Ex. 54.)

On November 15, 2018, not having heard from Dr. Liebowitz or Mr.

Vertich, Ms. Woods followed-up with Dr. Liebowitz regarding his

potential claim. (Pl. Ex. 55.) On that same day, Ms. Woods placed

the Sun-Sentinel article into Dr. Liebowitz’s claim file. (Pl.

5 Dr. Liebowitz testified at trial that he began experiencing
ankle pain in late 2014. In his claim form, Dr. Liebowitz wrote
that he began experiencing ankle pain in late 2015 and his
disabling condition began in January 2016. (Pl. Ex. 61.) In his
counterclaim, Dr. Liebowitz states his disabling condition from
ankle pain began in July 2017. (Doc. #58, ¶ 38.)
6 In certain documents submitted as evidence, Theresa Woods
is seen by her maiden name, Theresa First. The Court will
consistently use Theresa Woods.

13
USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 57 of 74

Ex. 40.) On November 29, 2018, Ms. Woods placed a DOH license

verification printout from the DOH website into the claim file.

(Pl. Ex. 57.) On December 14, 2018, after not receiving a claim

form, Ms. Woods again reached out to Dr. Liebowitz concerning his

potential claim. (Pl. Ex. 58.)

On December 18, 2018, Dr. Liebowitz submitted his initial

claim form for residual disability benefits to MetLife. (Pl. Ex.

61.) In the form, Dr. Liebowitz indicated that his disabling

condition (ankle injury) which entitled him to residual disability

benefits began on January 4, 2016. Dr. Liebowitz attached a

detailed handwritten statement to the claim form which indicated

he wanted have ankle surgery in early 2019 and secure a temporary

physician (locum tenens) to help cover his practice while he was

off his feet. (Id.) Dr. Liebowitz did not disclose in his claim

form that he also intended to hire a temporary physician to

prescribe pain medication in early 2019 because of the restrictions

on his DEA license from the 2018 Settlement Agreement. Dr.

Liebowitz testified that he hoped to get ankle surgery done in

early 2019 7 because he already knew he would have coverage for his

practice due to the DEA restrictions.

E. MetLife’s Claim Processing and Rescission

Dr. Liebowitz ultimately had successful ankle surgery in
7

April 2021.

14
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Ms. Woods then began formally processing Dr. Liebowitz’s

claim. The evidence showed the following timeline:

Date Occurrence
December 18, 2018 Dr. Liebowitz submitted his initial claim
form. (Pl. Ex. 61.)

December 28, 2018 Ms. Woods printed, and included in the claim
file, two documents from Dr. Liebowitz’s DOH
public profile which showed information about
the DOH Complaints and 2018 Settlement
Agreement. (Pl. Ex. 62; Def. Ex. 20.)

January 9, 2019 Ms. Woods sent Dr. Liebowitz a status letter
that described the Policy, requested certain
financial and medical records from him, and
explained that his almost three-year delay in
filing the claim may necessitate more time to
evaluate the claim. (Def. Ex. 21.)

February 8, 2019 Ms. Woods sent Dr. Liebowitz another status
letter requesting additional information and
informing Dr. Liebowitz that a field
representative would be meeting with him.
(Def. Ex. 22.)

March 8, 2019 Ms. Woods sent a status letter to Dr.
Liebowitz. (Def. Ex. 23.) 8

May 3, 2019 Ms. Woods sent a status letter to Dr.
Liebowitz. (Def. Ex. 24.) 9

Late May to early Ms. Woods went on maternity leave and Jamie
June 2019 Frederick was assigned to Dr. Liebowitz’s
claim. Mr. Frederick begins to focus on the
DOH medical license issue.

8 In the various status letters, Ms. Woods described the
medical, financial, and occupational records she was collecting,
or still needed from Dr. Liebowitz, to process his claim. None of
the status letters from Ms. Woods sought information from Dr.
Liebowitz about the DOH Complaints.
9 See fn. 8.

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June 7, 2019 Mr. Frederick spoke to Dr. Liebowitz on the
phone, provided a status update, and inquired
about the DOH proceedings. (Pl. Ex. 71.)

June 8, 2019 Mr. Frederick sent a follow-up status letter
to Dr. Liebowitz and requested additional
information about the DOH Complaints. (Def.
Ex. 25.)

July 19, 2019 Mr. Frederick met with in-house counsel to
discuss the DOH Complaints and possible
impact on Dr. Liebowitz’s claim adjudication.

August 8, 2019 Mr. Frederick sent another status letter to
Dr. Liebowitz. (Def. Ex. 28.)

August 8, 2019 Mr. Frederick requested information from the
DOH about Dr. Liebowitz’s DOH proceedings
since 2014. (Pl. Ex. 73.) The DOH quickly
responded. (Pl. Ex. 74.)

Early August 2019 Mr. Frederick sent a referral to MetLife’s
underwriting department to determine whether
there were issues with the Application based
on the information in MetLife’s possession.

August 20, 2019 Linda Castonguay executed a Referral to
Underwriter, which described the possible
material misrepresentations in the
Application. (Pl. Ex. 77.) Ms. Castonguay
pointed out issues with Dr. Liebowitz’s
medical disclosures. (Id.) Ms. Castonguay
also stated that, had MetLife known of the
DOH Complaints and medical licensing issues,
MetLife would not have issued the Policy.
(Id.) Ms. Castonguay only mentioned Question
17, not Question 5(i), in support of her
finding.

October 10, 2019 Without any response from Dr. Liebowitz to
the June 8th or August 8th letters, Mr.
Frederick sent Dr. Liebowitz a letter (Def.
Ex. 29) describing MetLife’s concern with
answers to Application Questions 5(i) and 17
because Dr. Liebowitz did not disclose the
DOH proceedings and requested an explanation
for the failure to disclose. (Id.)

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October 24, 2019 Dr. Liebowitz responded, through counsel, and
asserted his belief that he did not need to
disclose the DOH proceedings on the
Application because:

1. It was his understanding and belief
and remains the same that [he] did
not [sic] believe in good faith
that any proceedings would have
changed his occupational status or
financial stability and, in fact,
the administrative proceeding
ended without any admission of
wrongdoing on Dr. Liebowitz’s part
whatsoever; and

2. His license was neither suspended
nor revoked nor was he ever
“disbarred” as a result of any
proceeding.

(Pl. Ex. 79.)

October 29, 2019 Mr. Frederick requested additional
information from counsel about the possible
medical misrepresentations in the
Application. (Pl. Ex. 79A.)

December 2, 2019 After receiving an extension of time (Pl.
Exs. 79B, 79C, 80), Dr. Liebowitz’s counsel
responded (Pl. Ex 79D).

December 3, 2019 Mr. Frederick sent Dr. Liebowitz’s counsel a
letter, confirming receipt of his prior
correspondence and stating that MetLife was
reviewing all information. (Pl. Ex. 79E.)

December 18, 2019 Interested MetLife personnel met to discuss
Dr. Liebowitz’s file and Application.
MetLife ultimately decided to rescind the
Policy. (Pl. Ex. 81.)

December 30, 2019 MetLife sent Dr. Liebowitz, through counsel,
a formal Notice of Rescission, which included
a check representing all premiums paid plus
interest. (Pl. Exs. 82, 83.)

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III.

Generally, to succeed on a claim for rescission a plaintiff

must prove the following six elements by a preponderance of the

evidence:

(1) [t]he character or relationship of the
parties; (2) [t]he making of the contract; (3)
[t]he existence of fraud, mutual mistake,
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).

A. Undisputed Elements of Rescission Claim

The existence of four of the six elements is not disputed by

the parties. The “first requirement of a suit for rescission under

Florida law” is that the “parties to the lawsuit lie in contractual

privity.” Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294,

1315 (11th Cir. 2007) (citation omitted). The second element of

a rescission claim requires proof that a contract was made between

the parties. Billian, 710 So.2d at 991. It is undisputed that

there was a contract (i.e., the insurance Policy) between MetLife

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and Dr. Liebowitz. The Court concludes that MetLife has

established the first and second elements of its rescission claim.

The fifth element of a rescission claim requires MetLife to

prove that it offered to restore any benefits received from Dr.

Liebowitz under the Policy. Billian, 710 So.2d at 991. On

December 30, 2019, MetLife sent Dr. Liebowitz a check representing

all premiums previously paid on the Policy plus interest. (Pl.

Exs. 82, 83.) The Court concludes that MetLife has established

the fifth element of its rescission claim.

The sixth element of a rescission claim requires MetLife to

show that there are no adequate remedies at law. Billian, 710

So.2d at 991. See also Rost Invs., LLC v. Cameron, 302 So. 3d

445, 450 (Fla. 2d DCA App. 2020), review denied, No. SC20-1495,

2021 WL 1402224 (Fla. Apr. 14, 2021) (“Rescission is an equitable

remedy which is only available if the [plaintiffs] have no remedy

at law.” ); Collier v. Boney, 525 So. 2d 971, 972 (Fla. 1st DCA

1988) (“[A] fundamental requirement necessary for rescission of a

contract is that the moving party has no adequate remedy at law.”).

MetLife has no legal remedy, and its only remedy to preclude Dr.

Liebowitz from seeking benefits under the Policy is to rescind the

Policy. The Court concludes that MetLife has established the sixth

element of its rescission claim.

B. Disputed Elements of Rescission Claim

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The third and fourth elements of the rescission claim are

strenuously contested by the parties and were the two remaining

issues after the Court’s Order on summary judgment: (1) MetLife’s

grounds for rescission, i.e., Dr. Liebowitz’s intent; and (2)

MetLife’s actual rescission, i.e., whether MetLife rescinded the

policy within a reasonable time period. The Court addresses each

in turn.

(1) Misrepresentations on Insurance Application

The third element of a recission claim requires a plaintiff

to establish a ground for recession, such as the existence of fraud

or false representations. Billian, 710 So.2d at 991. In the

context of the rescission of an insurance policy, “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).

Rescission of an insurance policy because of a misstatement

in the application is governed by Fla. Stat. § 627.409(1), which

provides in relevant part:

(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

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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
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). Even an

unintentional misstatement can constitute grounds for rescission

under the statute if the other statutory elements are satisfied.

Hauser v. Life Gen. Sec. Ins. Co., 56 F.3d 1330, 1334 (11th Cir.

1995), as amended on denial of reh’g (Sept. 15, 1995).

In this case, however, the statutory basis for rescission is

further restricted by two provisions in the Policy. First, the

Policy contains a “Time Limit on Certain Defenses” provision, which

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provides: “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

2-year period.” (Doc. #103, p. 27.) 10 Because of the “Time Limit

on Certain Defenses” provision, MetLife may only rescind the Policy

based on fraudulent misstatements. Fla. Stat. § 627.409(1)(a); §

627.607(1). Under Florida law, “there are four elements of

fraudulent misrepresentation: (1) a false statement 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.” Butler v. Yusem, 44

So. 3d 102, 105 (Fla. 2010) (quotation omitted). Following the

Court’s Order on summary judgment, only the third element remains.

(Doc. #103.)

Second, the language used in the Application required Dr.

Liebowitz to affirm that his statements were true “to the best of

his knowledge and belief.” “Where the language an insurance

company chooses in its insurance application shifts the focus from

a determination of truth or falsity of an applicant’s statements

10The original Policy language did not strictly conform with
Fla. Stat. § 627.607(1). (See Pl. Ex. 1, p. 15.) As detailed in
the Court’s summary judgment order, the Court deemed the Policy to
include the two-year provision of Fla. Stat. § 627.607(1). (Doc.
#103, pp. 24-27.)

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to an inquiry into whether the applicant believed the statements

to be true, the applicant’s answers must be assessed in light of

his actual knowledge or belief.” Hauser, 56 F.3d at 1334–35. The

Eleventh Circuit has approved the following test for examining

responses to questions asked according to the applicant’s

knowledge and belief:

The twin qualifiers 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 any
event, a court may properly find a statement
false as a matter of law, however 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 landing still believe the moon is made
of cheese.

Hauser, 56 F.3d at 1335 (cleaned up); see also Miguel v. Metro.

Life Ins. Co., 200 Fed. App’x. 961, 966 (11th Cir. 2006) (citations

omitted).

So, considering the foregoing law, the Court asks two

questions: (1) Did Dr. Liebowitz intend that MetLife rely on his

false statements in the Application? And, (2) Did Dr. Liebowitz

fail to fill out the Application “to the best of his knowledge and

belief?” Because the Court answers both questions “yes,” the Court

finds that MetLife had grounds to rescind the Policy.

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For the first question, the Court already found, and continues

to find, that Dr. Liebowitz knowingly made false statements in the

Application. (Doc. #103, p. 16.) Dr. Liebowitz filled out the

Application with the intent to receive disability insurance

coverage from MetLife. An insurer, like MetLife, is entitled to

rely on the statements in the Application. 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.”). By seeking the

insurance policy and knowingly making false statements on the

Application, Dr. Liebowitz intended for MetLife to rely on his

false statements to obtain the Policy from MetLife. See Philip

Morris USA Inc. v. Principe, 3D20-875, 2021 WL 4302370, at *6 (Fla.

3d DCA Sept. 22, 2021) (citation omitted) (““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.”). The Court finds that MetLife

has proven that Dr. Liebowitz acted with fraudulent intent when he

completed the Application.

For the second question, despite Dr. Liebowitz’s stated

belief that he answered Questions 5(i) and 17 on the Application

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correctly, the circumstantial evidence establishes the contrary.

In 2014, Dr. Liebowitz sought out the MetLife policy with Mr.

Vertich’s assistance, having let a prior disability insurance

policy lapse for several years. Despite the lack of instructions

with the application form, Dr. Liebowitz testified that he

understood the key relevant requirement – that he answer the

questions honestly to the best of his knowledge and belief. Dr.

Liebowitz clearly knew the two questions at issue were relevant

and material, since he was applying for an occupational disability

policy. In January 2015, when Dr. Liebowitz filled out the

Application with Mr. Vertich’s assistance, Dr. Liebowitz’s DOH

proceedings were active: (1) the 2014 Settlement Agreement was

pending and included a serious “death penalty” provision; (2) two

attorneys (one being paid out-of-pocket) were reviewing his cases

and the 2014 Settlement Agreement; and (3) Dr. Liebowitz was taking

active (and expensive) steps to try and improve his negotiation

position with the DOH, including flying to Colorado for a

physician’s assessment in late December 2014. Dr. Liebowitz’s

stated belief is clearly contradicted by his actual knowledge at

the time he filled out the Application.

At trial, Dr. Liebowitz tried to explain his reasoning behind

this belief in part because he did not think he needed to disclose

the DOH proceedings since he was applying for disability insurance

and the DOH proceedings were separate issues. In Dr. Liebowitz’s

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view, the Policy only concerned coverage if he became disabled due

to health issues or an accident, and the Policy had nothing to do

with his job or losing his license. The Court does not find Dr.

Liebowitz’s explanation accurate or credible. Dr. Liebowitz was

applying for an occupational disability insurance policy, which

would provide him at most $16,550 per month if he were unable to

work because of a total disability. Dr. Liebowitz’s occupational

information was important to him receiving coverage from MetLife,

including the amount of coverage from MetLife. That is why MetLife

asked him questions about his “occupational status” and

professional license. Dr. Liebowitz did not fill out the

Application “to the best of his knowledge and belief.” Had he

done so, he would have disclosed the DOH proceedings.

Similarly, the Court does not find Dr. Liebowitz’s other

explanations for why he believed he was not required to disclose

the DOH proceedings to be credible in light of the factual events

which were well known to him. While the case is not as tenuous as

the moon-made-out-of-cheese example in Hauser, 56 F.3d at 1335,

Dr. Liebowitz’s stubborn refusal to acknowledge the fact of an

ongoing investigation which could jeopardize his medical license

and his financial stability cannot justify his answers. The Court

finds that when Dr. Liebowitz answered “no” to the two questions,

he did not answer either to the “best of his knowledge and belief.”

Indeed, that Court is satisfied that Dr. Liebowitz did in fact

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believe that the DOH proceedings were a review of his medical

license, that he could lose his medical license either temporarily

or permanently, and either such loss would have serious financial

repercussions.

Thus, the Court finds that MetLife has carried its burden of

proving intent by a preponderance of the evidence and that MetLife

has proven all elements of fraudulent misrepresentation. The Court

also finds that Dr. Liebowitz did not fill out the Application to

the best of his knowledge or belief. The Court concludes that

MetLife has establish that it had grounds to rescind the Policy,

the third element of its rescission claim.

Additionally, because MetLife established intent, MetLife is

entitled to judgment on the Second and Third Affirmative Defenses,

the only two defenses which remained following the Court’s Order

on summary judgment (Doc. #103), to the extent those defenses

asserted that MetLife could not rescind the Policy based on Dr.

Liebowitz’s intent.

(2) Rescission and Notice of Rescission

The fourth element of a rescission claim requires MetLife to

prove that it rescinded the Policy and notified Dr. Liebowitz of

the rescission within a reasonable period of time. Billian, 710

So.2d at 991. “An insurer that delays informing its insureds of

a dispute about coverage may find itself estopped from contesting

coverage if the insureds show prejudice resulting from the delay.”

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Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Sahlen, 999 F.2d

1532, 1537 (11th Cir. 1993).

[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, however, may take a reasonable amount of time to

investigate the facts justifying rescission. “An insurer is not

deemed to have waived its right to contest the validity of an

insurance policy by the acceptance of a premium unless it is shown

that it has acted with full knowledge of the facts. Likewise,

estoppel can only be invoked against an insurer when its conduct

has been such as to induce action in reliance upon it.” Mut. of

Omaha Ins. Co. v. Eakins, 337 So. 2d 418, 419 (Fla. 2d DCA

1976)(citations omitted.)

The timeline from the start of MetLife’s claim processing to

the final decision to rescind the Policy demonstrates that MetLife

took reasonable time to investigate Dr. Liebowitz’s disability

claim and his Application before seeking rescission. On December

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28, 2018, shortly after receiving Dr. Liebowitz’s claim form, Ms.

Woods printed off information about the DOH Complaints and the

restriction on Dr. Liebowitz’s medical license. The evidence does

not show that Ms. Woods deliberately disregarded this information,

but was focused elsewhere. Ms. Woods was actively trying to gather

a plethora of information about Dr. Liebowitz’s residual

disability claim which asserted that his work had been impacted

due to an ankle injury since January 4, 2016. 11 Ms. Woods was not

looking for possible fraud on the Application. Ms. Woods testified

that she did not even remember the Application questions while

processing the claim.

MetLife was also not required to rely solely on the printouts

from the DOH website to determine that there may have been concerns

with the Application. Mr. Frederick, who took over Dr. Liebowitz’s

file after Ms. Woods left on maternity leave, testified that he

did not understand the information shown on the printouts or the

DOH website. 12 Notably, once MetLife started actively

investigating Dr. Liebowitz’s medical license and requested more

Dr. Liebowitz’s now contends that his disabling condition
11

occurred in July 2017. However, at the time he filled out the
Application, he claimed a January 4, 2016 disabling condition.
The start of MetLife’s claim adjudication and ultimate rescission
determination was based on that date.
The DOH website further disclaims any accuracy of the
12

information provided and “strongly urges all users of this site to
conduct their own investigation of any individual.” See
https://www.floridahealth.gov/disclaimer.html.

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USCA11 Case: 22-11794 Document: 34-1 Date Filed: 07/10/2023 Page: 73 of 74

information from him on June 7-8, 2019, Dr. Liebowitz failed to

respond until October 24, 2019. So, MetLife’s investigation was

stalled, in large part, by Dr. Liebowitz himself.

The Court finds that the time MetLife took to rescind Dr.

Liebowitz’s policy was reasonable. It is also undisputed that

MetLife sent Dr. Liebowitz notice of its rescission on December

30, 2019. The Court concludes that MetLife has established the

fourth element of its rescission claim.

IV.

The Court concludes that MetLife carried its burden and has

proven all six elements of its rescission claim by a preponderance

of the evidence. MetLife is (and was) entitled to rescind the

Policy. The Court declares that Dr. Liebowitz has no right, title,

or interest in the Policy. This resolves both MetLife’s Complaint

(Doc. #1) and Dr. Liebowitz’s Counterclaim I (Doc. #58, p. 18),

which sought reinstatement of the Policy.

Dr. Liebowitz’s Counterclaim II seeks a payment of disability

benefits under the Policy. Because the Court determines that Dr.

Liebowitz is not entitled to enforce the Policy, Dr. Liebowitz

cannot seek relief under the Policy. Counterclaim II is dismissed

with prejudice.

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Accordingly, it is now

ORDERED:

1. The Court finds that MetLife has sustained its burden of

proof as to the Complaint (Doc. #1) seeking recission of

the disability insurance Policy. The Court finds that

Dr. Liebowitz has not sustained his burden on his

Counterclaim I (Doc. #58) seeking a declaration that the

Policy is reinstated.

2. MetLife is entitled to judgment in its favor on the

Complaint (Doc. #1), Counterclaim I (Doc. #58), and Dr.

Liebowitz’s First through Eighth Affirmative Defenses

(Doc. #58).

3. Counterclaim II (Doc. #58) is dismissed with prejudice.

4. The Clerk shall enter judgment accordingly and close the

case.

DONE and ORDERED at Fort Myers, Florida, this 21st day of

March, 2022.

Copies:
Counsel of Record

31