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SUMMARY OF ARGUMENT Plaintiff contends that the Magistrate should have followed the Florida case law set forth in Northbrook Life Insurance v. Clark, 582 So.2d 1199 (Fla. 2nd DCA 1991) and Blue Cross/Blue Shield v. Shufela, 487 So.2d 1085 (Fla. 5th DCA 1986). Those cases clearly set forth that the intent of Florida Statute section 627.6675 (1987) requires that an individual receive the right to a conversion policy with benefits equal to those provided under the original group plan. In other words, Plaintiff, Barbara Savona should have been given the right to a conversion policy with the same $1,000,000 lifetime benefits as her group policy, not $250,000 as now ruled appropriate by the Magistrate. Plaintiff further contends that the District Magistrate should not have attempted to make an educated prediction on behalf of the Florida Supreme Court when the federal law seems to prohibit same, Flintkote v. Dravo, 678 F.2d 942, 945 (11th Cir. 1982). Lastly, the fact that the Florida legislature in amending section 627,6675 specifically chose to pass (in March 1992), and then delete (in July 1992 before the effective date of the March revision) the provisions of subsection (20) which attempted to make retroactive or retrospective changes to overrule cases like Clark and Shufelt is persuasive against the Magistrate’s prediction. Further, the legislature decided that $500,000 was more appropriate than the $250,000 offered to Plaintiff. Thus, Plaintiff, Barbara Savona, submits that Prudential should be required to issue a $1,000,000 lifetime individual conversion policy. 5
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ARGUMENT This case is before the court only on a certified question of Florida law, and is not in anyway connected with ERISA, as might be contended by PRUDENTIAL. The decision of the Magistrate and the submission of the certified question to the Florida Supreme Court for its interpretation puts the issue of the applicability of ERISA versus Florida law to rest. Florida Statute section 627.6675 (1987) as interpreted in Northbrook and Shufelt specifically mandates a minimum coverage to be afforded upon conversion, but also requires the insurance company to provide benefits equal to those provided under the group policy. Thus, Plaintiff should have been provided $1,000,000 in benefits because there is no equivocation or dispute between the Fifth and Second District Courts of Appeal in Florida as to this applicability or interpretation of this statute. While it is true that this Court has not yet spoken on the case law generated interpreting this statute, the Federal Magistrate was incorrect in attempting to predict. There is no conflict in the Florida intermediate courts as to the proper construction of this statute, and the law to which the Magistrate was obliged to follow is found in Flintkote CQ, v. Dravo at 945, wherein the court ruled that "only where no state court has decided the paint in issue may a federal court make an educated guess as to how that state's supreme court would rule." Likewise, the law of the Eleventh Circuit as found in Silverberg v. Paine Webber, 710 F.2d 678,690 (11th Cir. 1983) seems to say that where there was no indication that the Florida Supreme Court would choose not to enforce a particular statutory 6
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requirement which was more stringent and offered greater protection to the citizens of the state, the federal court is bound to follow the state decisions. Studstill v. Borg Warner Leasins, 800 F.2d 1005, 1007 (11th Cir. 1986) and Provau v. State Farm Mutual Insurance a., 777 FSupp. 817, 820 (1985)’ hold likewise and add that these intermediate state court decisions must be followed even if the federal courts don’t like the reasoning or the outcome. Further, the Magistrate’s analysis of the amendments to section 627.6675 are extremely important for this Court. As stated, the legislature amended the law in March 1992, in the Laws of Florida, Chapter 92-33, section 138, to become effective October 1, 1992. Of particular relevance are the new subsections (10) and (20) as amended, while the renumbered subsection (15) is the same as old (17)’ and thus of no new significance. New subsection (10) purported to reduce the maximum benefit to $250,000, and new subsection (20) read as follows: Nothing in this section or in the incorporation of it into insurance policies shall be construed to require insurers to provide benefits equal to those provided in the group policy from which the individual converted. Further, the legislature finds and declares that this subsection is a clarification and specification of the legislative intent of this section prior to the enactment; and that in light of confusion relating to the rights and obligations of insurers and insureds resulting from judicial and administrative interpretations of this section, the state has great interest in giving retrospective intent to this clarification. The Legislature therefore intends that this section be give such retrospective effect as is necessary to clarify that it does not, and did not before this enactment, require the issuance of conversion policies providing benefits equal to those provided in the group policy from which the individual converted. Once again this amendment was meant to become effective on October 1, 1992, but before 7
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that date, on July 7, 1992, the legislature again amended this statute in Laws of Florida, Chapter 92-318, section 116. Therefore, the March amendments never became law, at least as they apply to this case. Of great significance to this case, and the legislative intent if any other than already interpreted in both Northbrook and Shufell, is the deletion of the following language from new subsection (20): Further, the legislature finds and declares that this subsection is a clarification and specification of the legislative intent of this section prior to the enactment; and that in light of confusion relating to the rights and obligations of insurers and insureds resulting from judicial and administrative interpretations of this section, the state has great interest in giving retrospective intent to this clarification. The Legislature therefore intends that this section be given such retrospective effect as is necessary to clarify that it does not, and did not before this enactment, require the issuance of conversion policies providing benefits equal to those provided in the group policy from which the individual converted. Thus, the legislature clearly chose not to override the previous case law, and gave the new amendment prospective effect only, at least as to this issue. Furthermore, the legislature enacted a different subsection (10) requiring a maximum of the lesser of the group policy or $500,000. It would appear that they recognized or compromised finding that a $250,000 policy like the one in this case is insufficient to accomplish the necessary public purposes of insuring adequate health care coverage for persons most needing same. This type of statutory construction as used by the Shufelt and Northbrook courts is supported by the Florida case law as referenced in Jett v. State, 605 So.2d 926 (Fla. 5th DCA 1992), and the cases cited therein acknowledging the concept that when the literal context of a statute conflicts with the clearly discernible legislative intent, the context yields 8
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to the legislative purpose to prevent defeat of that purpose/intent. See also Griffis v. State, 356 So2d 297, 299 (Fla. 1978). These types of statutes are enacted in the public interest and should be liberally construed in favor of that purpose and in favor of the public, i.e. the Plaintiff, Barbara Savona. 9
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CONCLUSION The Magistrate while choosing not to follow the decisions of the intermediate appellate courts in Florida has substituted its rationale and reasoning for that of the state courts. Furthermore, the Court’s attempt at discovering legislative intent seems to be flawed by disregarding the above referenced deletions. Therefore, Plaintiff submits that the certified question should be answered consistently with the case law and statutory history/changes so as to provide her with conversion benefits in the amount of $1,000,000 which was the same provided to her under the group plan. Respectfully submitted, Florida Bar #254959 P.O. Box 568569 Orlando, FL 32856 Attorney for Plaintiff (407)293-1510 10
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to: Melissa Arony, Attorney At Law, Eubanks, Hilyard, Rumbley, Meier & Lengauer, P.A., Post Office Box 4973, Orlando, FL 32802-4973, this 28th day of March, 1994. 11