The Prudential Insurance Company of America v. Gardina

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

THE PRUDENTIAL INSURANCE

COMPANY OF AMERICA,

Plaintiff,

v. Case No: 6:23-cv-1125-JSS-DCI

CAROL GARDINA and GEORGE

GARDINA,

Defendants.

___________________________________/

ORDER

Defendants Carol Gardina and George Gardina move for summary judgment.

(Motion, Dkt. 87.) Plaintiff Prudential Insurance Company of America opposes the

Motion. (Dkt. 94.) For the reasons outlined below, the court denies the Motion.

BACKGROUND

On February 8, 2002, Plaintiff issued two long-term care insurance policies, one

to Mr. Gardina and one to Mrs. Gardina, who are married. (Dkts. 87 at 3; 87-2; 87-

3.) The policies provide long-term care benefits for insureds diagnosed with a chronic

illness or disability as defined in the policies. (Dkt. 87 at 3.) The policies define a

chronic illness or disability as follows:

An illness or disability in which there is:

1) A loss of the ability to perform, without substantial

assistance, at least two activities of daily living for a period

of at least 90 consecutive days; or

2) A severe cognitive impairment, which requires

substantial assistance to protect you from threats to health

or safety.

(Dkts. 87-2; 87-3.) Substantial assistance is defined as follows:

1) The physical assistance of another person without which

you would not be able to perform an activity of daily

living; or

2) The constant presence of another person within arm’s

reach that is necessary to protect you from threats to

your health or safety.

(Id.) Activities of daily living are defined as follows:

Bathing - Washing oneself by sponge bath, or in either a tub

or shower, including the task of getting into or out of the tub

or shower.

Continence - The ability to maintain control of bowel and

bladder function, or, when unable to maintain control of

bowel or bladder function, the ability to perform associated

personal hygiene (including caring for catheter or

colostomy bag).

Dressing - Putting on and taking off all items of clothing

and any necessary braces, fasteners or artificial limbs.

Eating - Feeding oneself by getting food into the body from

a receptacle (such as a plate, cup or table) or by feeding tube

or intravenously.

Toileting - Getting to and from the toilet, getting on and off

the toilet, and performing associated personal hygiene.

Transferring - Sufficient mobility to move into or out of a

bed, chair or wheelchair or to move from place to place,

either by walking, using a wheelchair or by other means.

(Id.) A cognitive impairment is defined as follows:

A loss or deterioration in intellectual capacity that is:

1) Comparable to and includes Alzheimer’s disease and

similar forms of irreversible dementia;

2) Measured by clinical evidence and standardized tests that

reliably measure impairment in the individuals

a. short-term or long-term memory;

b. orientation as to people, places, or time

and

c. deductive or abstract reasoning.

(Id.) Last, substantial supervision is defined as “[c]ontinual oversight that may include

cueing by verbal prompting, gestures, or other demonstrations by another person,

which is necessary to protect you from threats to your health or safety.” (Id.) The

policies include a cash benefit rider that permits the insured to choose a caregiver that

will be paid under the policy for the care given to the insured regardless of the duration

of care provided. (Id.) The policies require Defendants to undergo physical

examinations to assess their continuing eligibility for benefits. (Dkt. 87 at 6.)

1. Mrs. Gardina’s Claim

From April 23, 2002, to May 20, 2002, Mrs. Gardina was hospitalized for the

care and treatment of a brain hemorrhage and aneurysm. (Id. (citing Dkt. 87-5).) At

the hospital, Mrs. Gardina underwent a right frontal ventriculostomy and coil therapy

on her right internal carotid artery. (Id.) In June 2002, Mrs. Gardina submitted a

claim for benefits to Plaintiff, with the help of Mr. Gardina. (Id. (citing Dkt. 87-6).)

Plaintiff initially approved Mrs. Gardina’s claim. (Dkt. 87 at 6.)

On October 22, 2004, Plaintiff asked Mrs. Gardina to undergo an independent

medical examination. (Dkt. 87 at 6–8 (citing Dkts. 87-8; 87-10; 87-11; 87-12; 87-14).)

Plaintiff explained that a review of the submitted medical documentation did not

confirm that Mrs. Gardina still had a chronic illness or disability. (Id.) Mrs. Gardina

underwent the independent medical examination as requested. The results indicated

that she could not perform activities of daily living and that she had a cognitive

impairment as defined by the policy. (Id.) Thereafter, on January 26, 2005, Plaintiff

approved Mrs. Gardina’s claim for benefits. (Dkts. 87-6; 94 at 3.)

Although Plaintiff asserts that Defendants fraudulently misrepresented Mrs.

Gardina’s health during this period, Plaintiff paid Mrs. Gardina benefits every month

from June 2002 until June 2023. (Dkt. 87 at 6.) According to Plaintiff, a benefit

eligibility assessment is a tool Plaintiff uses to assess an insured’s claimed condition.

(Dkt. 94 at 5.) During the assessment, a third-party registered nurse hired by Plaintiff

visits the insured’s home, confirms their identity, conducts physical demonstrations of

activities of daily living, and tests for cognitive functioning. (Id. at 9–10.) Mrs.

Gardina presented for periodic benefit eligibility assessments as required by her policy.

(Id.)

In June 2012, Plaintiff hired a third party to conduct an activity check on Mrs.

Gardina. (Id.) Additionally, from April to May 2016 and June to August 2022,

Plaintiff conducted video surveillance on Defendants. (Id. at 10.) On June 14, 2023,

Plaintiff denied Mrs. Gardina’s claim for benefits. (Id. (citing Dkt. 87-25).)

2. Mr. Gardina’s Claim

On July 12, 2016, Mr. Gardina submitted a claim for long-term benefits due to

bilateral rotator cuff tears, resulting in the need for assistance with three activities of

daily living —bathing, dressing, and toileting. (Dkt. 87 at 11 (citing Dkt. 87-26).) After

submitting medical records and presenting for a benefit eligibility assessment, Plaintiff

approved Mr. Gardina’s claim. (Id. (citing Dkts. 87-27; 87-28; 87-29).) On April 3,

2020, Plaintiff asked Mr. Gardina to sign a medical authorization release to obtain

records from one of his medical providers. (Dkt. 87 at 11.) The medical authorization

release was needed to assess Mr. Gardina’s continued eligibility for benefits. Mr.

Gardina declined to sign the release, and after multiple attempts to obtain the

authorization, Plaintiff terminated Mr. Gardina’s claim on July 21, 2020. (Dkts. 87 at

11–12; 94 at 11–12.) Mr. Gardina appealed the claim termination and asserted that

Plaintiff breached the insurance contract. (Dkt. 87 at 11 (citing Dkt. 87-33).) Plaintiff

refused to consider Mr. Gardina’s appeal without the requested medical authorization,

and Plaintiff closed the appeal in December 2020. (Id. at 11–12.)

In May 2022, Mr. Gardina initiated a new claim for benefits (Id. (citing 87-34).)

On June 5, 2022, he underwent another benefit eligibility assessment and stated that

he could not perform any activities of daily living. (Dkt. 87 at 12 (citing Dkt. 87-35).)

Plaintiff conducted video surveillance on Mr. Gardina before and after the assessment.

(Dkt. 94 at 12–13.) Plaintiff maintains that the video surveillance showed Mr. Gardina

and a woman, who was later identified as Mrs. Gardina, driving, building a fence,

shopping, performing chores, carrying lumber, walking, and performing other

activities. (Id.)

Thereafter, on September 28, 2022, Plaintiff denied Mr. Gardina’s claim for

benefits. (Dkt. 87 at 12 (citing Dkt. 87-35).) Mr. Gardina appealed this denial, but

Plaintiff closed his appeal and claim because it never received Mr. Gardina’s medical

authorization release to obtain his medical records. (Id. at 12.) Plaintiff also maintains

it closed his claim because Mr. Gardina did not prove he was eligible for benefits.

(Dkt. 94 at 3–4.)

On June 14, 2023, Plaintiff filed the instant action. Plaintiff’s Amended

Complaint seeks legal and equitable damages against Defendants for the following

claims: fraudulent misrepresentation (Count I); fraudulent concealment (Count II);

declaratory judgments seeking a determination that Defendants are not entitled to

coverage under the policies (Count III - Mrs. Gardina; Count IV - Mr. Gardina);

declaratory judgments seeking a determination that Defendants’ policies are void

(Count V - Mrs. Gardina; Count VI - Mr. Gardina); and civil conspiracy (Count VII).

(Dkt. 25.) Defendants counterclaimed seeking damages against Plaintiff for breach of

contract for denying Defendants’ claims for benefits under their policies (Count I -

Mrs. Gardina; Count II - Mr. Gardina). (Dkt. 33.) Defendants move for partial

summary judgment on Counts I, II, V, VI, and VII of Plaintiff’s Amended Complaint

and all counts of their Counterclaim.

APPLICABLE STANDARDS

Granting summary judgment is appropriate if the “movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is considered “genuine” only

if “a reasonable jury could return a verdict for the non[-]moving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact is material for the purposes of

summary judgment only if it might affect the outcome of the suit under the governing

law.” Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005). “The moving party

bears ‘the initial responsibility of informing the . . . court of the basis for its motion,

and identifying those portions of the [record], which it believes demonstrate the

absence of a genuine issue of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d

1256, 1260 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

If the movant shows that no evidence supports the non-moving party’s case, “[t]he

burden then shifts to the non-moving party, who must go beyond the pleadings, and

present affirmative evidence to show that a genuine issue of material fact exists.” Porter

v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115–17 (11th Cir. 1993)).

In determining whether a genuine dispute of material fact exists, “courts should

view the evidence and all factual inferences therefrom in the light most favorable to

the party opposing the motion,” and “[a]ll reasonable doubts about the facts should be

resolved in favor of” the non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175,

1187 (11th Cir. 1999) (citing Clemons v. Dougherty County, 684 F.2d 1365, 1368–69 (11th

Cir. 1982)). “If the record presents disputed issues of fact, the court may not decide

them; rather, [it] must deny the motion and proceed to trial.” Jones v. UPS Ground

Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). Summary judgment should only be

granted “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

Federal jurisdiction in this matter is based on diversity of citizenship under 28

U.S.C. § 1332(a). (Dkt. 1 ¶¶ 5–8.) This court is therefore bound to apply the

substantive law of the state in which it sits. See Erie R.R. v. Tompkins, 304 U.S. 64

(1938). Thus, Florida substantive law applies. Sutton v. Wal-Mart Stores E., LP, 64

F.4th 1166, 1168 (11th Cir. 2023).

ANALYSIS

A. Fraudulent Misrepresentation and Concealment (Counts I and II)

Defendants argue that Plaintiff’s fraudulent misrepresentation and concealment

claims fail as a matter of law. (Dkt. 87 at 19–21.) The court will discuss each claim

in turn.

1. Fraudulent Misrepresentation

Under Florida law, a fraudulent misrepresentation claim requires evidence of

the following: “(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[s] 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).

Defendants acknowledge making misrepresentations after 2022, although they

do not specify which statements constitute misrepresentations. (Dkt. 87 at 20.)

Defendants deny making misrepresentations before 2022, and contend Plaintiff cannot

prove they made such misrepresentations or that Plaintiff relied upon them to its

detriment. (Id.) Plaintiff responds that the evidence contained in the summary-

judgment record supports the contention that Plaintiff relied on Defendants’ allegedly

fraudulent representations about their health conditions in approving Defendants’

claims for long-term care benefits. (Dkt. 94 at 19.)

Regarding Mrs. Gardina, Plaintiff provided the court with Mrs. Gardina’s

benefit eligibility assessment forms from 2006–2008, 2010, 2011, 2016, 2017, 2020,

2022, and 2023. (Dkts. 94-27, 94-28, 94-29, 94-30, 94-31, 94-37, 94-38, 94-40, 94-41,

94-48.) These assessments were conducted by a third-party registered nurse hired by

Plaintiff to evaluate Mrs. Gardina’s ongoing eligibility for benefits. The assessments

show that Mrs. Gardina presented as having severe cognitive and functional mobility

impairments, and she could not physically or mentally complete the assessments

independently without Mr. Gardina. (See generally id.) For example, during her June

11, 2007 assessment, Mrs. Gardina, through her husband, represented that she did not

know what day it was, who the current president was, could not remember three words

mentioned to her a few minutes before, needed assistance with washing herself,

changing or adjusting her clothing, using the bathroom, feeding herself, drinking

fluids, was bed bound and unable to sit up or stand without significant discomfort or

pain, and could only ambulate with a walker or wheelchair. (Dkt. 94-28.) Plaintiff

contends that it relied on these representations to approve Mrs. Gardina’s continuing

claim for long-term care benefits. (Dkt. 25 ¶¶ 90–98.)

Defendants’ neighbors, Curt and Antonia Horton testified that from 2007 to

2024, they observed Defendants almost daily. (Dkts. 94-4; 94-6.) During this period,

Mrs. Gardina could engage in intelligent conversations, walk and stand without

assistance, dine at restaurants without help, travel internationally, and drive. (Dkts.

94-4 at 22:1–31:25, 34:1–44:25; 94-6 at 27:1–37:23.) Additionally, Mrs. Horton

testified that in 2007, Mrs. Gardina used her active real estate license to help the

Hortons close on the home they bought next to Defendants, and she helped them

complete the required paperwork. (Dkt. 94-4 at 23:15–24:16.)

In recent years, Defendants presented Mrs. Gardina at her June 5, 2022,

assessment as being unable to walk and only able to move around in a wheelchair.

(Dkt. 45-24.) They also reported that she could not use utensils for eating, could not

bathe because she could not lift her arms, and could not drive. (Id.) Plaintiff contends

it relied on these representations to approve Mrs. Gardina’s continuing claim for

benefits. (Dkt. 25 ¶¶ 90–98.) Despite Defendants’ representations concerning Mrs.

Gardina’s health conditions, Plaintiff’s Amended Complaint contains still images of

video surveillance of Defendants captured from June 9, 2022, July 10, 2022, July 5,

2022, and July 6, 2022, that contradicts the limitations Defendants set forth at the 2022

assessment. (Id. ¶ 51, Dkts. 94-42 & 94-43.) Plaintiff contends that surveillance

conducted on the specified days shows Mrs. Gardina driving, entering, and exiting a

vehicle independently, standing, lifting objects, and shopping—all activities

Defendants claimed she could not perform. (Dkt. 25 ¶¶ 51–52.)

Plaintiff also alleges that during surveillance, Mrs. Gardina was observed

carrying lumber. (Id. ¶ 51.) During his deposition on April 18, 2024, Mr. Gardina

was shown the video surveillance and he subsequently admitted that Mrs. Gardina

was capable of performing plumbing, electrical work, nailing, and construction tasks.

(Dkt. 94-2 at 162:8–163:3.) Mr. Gardina also testified that Mrs. Gardina could drive

a backhoe and bulldozer. (Id. at 163:4–12.)

As for Mr. Gardina, Plaintiff provided the court with Mr. Gardina’s benefit

eligibility assessment forms from 2017, 2018, and 2022. (Dkts. 94-38 & 94-45.) During

the assessments, Mr. Gardina maintained that he has severe functional mobility

impairments. (See generally id.) For example, during his June 1, 2022, assessment, Mr.

Gardina stated that he could not drive, needed assistance with washing himself,

changing or adjusting his clothing, using the bathroom, feeding himself, and could

only ambulate with a walker or wheelchair. (Dkt. 94-45.) Plaintiff contends that it

relied on these representations to approve Mr. Gardina’s continuing claim for benefits.

(Dkt. 25 ¶¶ 90–98.) Notwithstanding its claims, Plaintiff also contends that video

surveillance of Mr. Gardina before and after this assessment shows Mr. Gardina

walking, driving, carrying lumber, building a fence, shopping, and securing a boat to

a trailer. (Dkts. 94-42; 94-43.) Mr. Gardina admitted during his deposition that he

was captured on video surveillance securing a boat to a trailer and carrying lumber.

(Dkt. 94-2 at 163:1–165:24.)

Considering the evidence and drawing all reasonable inferences in Plaintiff’s

favor, Plaintiff has presented sufficient evidence from which a jury could infer that

Defendants knowingly and falsely misrepresented their health conditions to induce

Plaintiff to provide benefits under the policies. Indeed, “cases in which the underlying

issue is one of motivation, intent, or some other subjective facts are particularly

inappropriate for summary judgment.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d

1236, 1243 (11th Cir. 2013) (per curiam) (internal quotations omitted). “If the

evidence raises an issue of material fact, if it is conflicting, if it will permit different

reasonable inferences, or if it tends to prove the issues, it should be submitted to the

jury as a question of fact to be determined by it.” Moore v. Morris, 475 So. 2d 66, 668

(Fla. 1985). Moreover, “fraud is not ordinarily a suitable subject for summary

judgment.” Richards v. Wax, 511 So. 2d 433, 434 (Fla. Dist. Ct. App. 1987) (alteration

in original) (quoting Levey v. Getelman, 408 So. 2d 663, 665 (Fla. Dist. Ct. App. 1981)).

“[I]t is a subtle thing requiring a full explanation of the facts and circumstances of the

alleged wrong to determine if they collectively constitute a fraud.” Id. (alteration in

original) (quoting Amazon v. Davidson, 390 So. 2d 383, 385 (Fla. Dist. Ct. App. 1980)).

See Grimes v. Lottes, 241 So. 3d 892, 897–98 (Fla. Dist. Ct. App. 2018) (reversing grant

of summary judgment in favor of the defendants as to the plaintiffs’ fraudulent

misrepresentation and concealment claims when genuine issues of material fact

existed). The Motion is therefore denied as to this claim.

2. Fraudulent Concealment

Under Florida law, a fraudulent concealment claim requires evidence that a

party (1) “concealed or failed to disclose a material fact”; (2) that they “knew or should

have known the material fact should be disclosed”; (3) “knew their concealment of or

failure to disclose the material fact would induce the plainitff[] to act”; (4) “had a duty

to disclose the material fact”; and (5) “the plaintiff[] detrimentally relied on the

misinformation.” Hess v. Phillip Morris USA, Inc., 175 So. 3d 687, 691 (Fla. 2015).

Defendants argue that they did not have a duty to disclose the accurate nature

of their health because such duty arises under Florida law only when there is a

fiduciary relationship. (Dkt. 87 at 20–21 (citing Greenberg v. Miami Child.’s Hosp. Rsch.

Inst., 264 F. Supp. 2d 1064, 1073 (S.D. Fla. 2003); State v. Mark Marks, P.A., 654 So.

2d 1184, 1189 (Fla. Dist. Ct. App. 1995)).) Defendants also maintain that Florida law

makes clear that Plaintiff’s and Defendants’ first-party contractual relationship is an

adversarial rather than a fiduciary relationship. (Id. (citing Greenberg v. Miami Child.’s

Hosp. Rsch. Inst., 264 F. Supp. 2d 1064, 1073 (S.D. Fla. 2003))). Plaintiff responds to

the contrary, explaining that under Florida law, all material facts must be disclosed

when parties are engaged in an arm’s-length transaction. (Dkt. 94 at 20 (citing Gutter

v. Wunker, 631 So. 2d 1117, 1118–19 (Fla. Dist. Ct. App. 1994); Vokes v. Arthur Murray,

Inc., 212 So. 2d 906, 909 (Fla. Dist. Ct. App. 1968)).)

The duty to disclose “arises when one party has information which the other

party has a right to know because there is a fiduciary or other relation of trust or

confidence between the two parties.” Garofalo v. Proskauer Rose LLP, 253 So. 3d 2, 7

(Fla. Dist. Ct. App. 2018.) “Whether the duty exists is a question of law.” Id.

Ordinarily, failing to disclose material facts in an arm’s-length transaction is not

actionable. See Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 540–

41 (Fla. Dist. Ct. App. 2003). There are some exceptions, however. Specifically,

“where a party in an arm’s length transaction undertakes to disclose information, all

material facts must be disclosed.” Gutter, 631 So. 2d at 1118–19; Artec Grp., Inc. v.

Chugach Mgmt. Servs., Inc., 470 F. Supp. 2d 1353, 1356 (M.D. Fla. 2006) (same (citing

id.)). Indeed, “[e]ven in contractual situations where a party to a transaction owes no

duty to disclose facts within his knowledge or to answer inquiries respecting such facts,

the law is if he undertakes to do so[,] he must disclose the [w]hole truth.” Vokes, 212

So. 2d at 909.

Since Defendants undertook to disclose some information that Plaintiff does

not dispute as accurate regarding Mrs. Gardina’s 2002 brain hemorrhage and

aneurysm, they had an ongoing duty to disclose all material facts about Mrs. Gardina’s

health. Likewise, since Mr. Gardina undertook to disclose some information about

his bilateral rotator cuff tears, which Plaintiff does not dispute as accurate, he had an

ongoing duty to disclose all material facts about his health. Thus, the court finds that

Defendants had an ongoing duty to disclose the accurate nature of their health and

ability to perform activities of daily living.

Further, Plaintiff provided sufficient evidence supporting the contention that the

Gardinas concealed or failed to disclose the true nature of their health at their benefit

eligibility assessments to induce Plaintiff to continue to approve their claims for long-

term care benefits. Thus, after considering the evidence and drawing all reasonable

inferences in Plaintiff’s favor, Plaintiff has presented sufficient evidence from which a

jury could infer that Defendants fraudulently concealed material information in the

parties’ arm’s-length transaction. As a result, the Motion is denied as to this claim.

B. Statutes of Limitations and Repose (Counts I, II, VII)

Defendants contend that Plaintiff’s claims for fraudulent misrepresentation

(Count I), fraudulent concealment (Count II), and civil conspiracy (Count VII) are

barred by the applicable four-year statute of limitation. (Dkt. 87 at 14.)

1. Statute of Limitations (Counts I and II)

The “statute of limitations is a procedural statute which bars enforcement of an

accrued cause of action.” WRH Mortg., Inc. v. Butler, 684 So. 2d 325, 327 (Fla. Dist.

Ct. App. 1996); see also Riverside Ave. Prop., LLC v. Riverside Condo. Ass’n, Inc., 352 So.

3d 997, 1002 (Fla. Dist. Ct. App. 2021) (“‘A prime purpose underlying statutes of

limitation is to protect defendants from unfair surprise and stale claims.’”) (quoting

Major League Baseball v. Morsani, 790 So. 2d 1071, 1074–75 (Fla. 2001))); Morsani, 790

So. 2d at 1075 (explaining that the statute of limitations is meant to deprive “one who

has willfully or carelessly slept on his legal rights [of] an opportunity to enforce an

unfresh claim against a party who is left to shield himself from liability with nothing

more than tattered or faded memories, misplaced or discarded records, and missing or

deceased witnesses’) (quoting Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976))).

Under Florida law, the statute of limitations is an affirmative defense. See Rigby v.

Liles, 505 So. 2d 598, 601 (Fla. Dist. Ct. App. 1987) (collecting cases).

Actions for fraud are subject to a four-year statute of limitations. Fla. Stat. §

95.11(3)(i). Generally, the “time within which an action shall be begun under any

statute of limitations runs from the time the cause of action accrues.” Fla. Stat. §

95.031. “A cause of action accrues when the last element constituting the cause of

action occurs.” Fla. Stat. § 95.031(1). The last element of a fraudulent

misrepresentation claim is “consequent injury by the party acting in reliance on the

[fraudulent] representation.” Butler, 44 So. 3d at 105 (quoting Johnson v. Davis, 480 So.

2d 625, 627 (Fla. 1985)). Similarly, establishing the last element of a fraudulent

concealment claim requires a plaintiff to prove that it “detrimentally relied on the

misinformation.” Hess, 175 So. 3d at 690.

Fraud cases, however, “must be begun within the period prescribed in [the

statute,] with the period running from the time 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); see Moneyhun v. Vital Indus., Inc., 611 So. 2d 1316,

1322 (Fla. Dist. Ct. App. 1993); Bearse v. Main St. Investments, 220 F. Supp. 2d 1338,

1344–45 (M.D. Fla. 2002); Knight v. E.F. Hutton & Co., 750 F. Supp. 1109, 1113–14

(M.D. Fla. 1990). This “delayed discovery doctrine. . . delays [the] commencement

of the statute of limitations.” Davis v. Monahan, 832 So. 2d 708, 708 (Fla. 2002). The

Florida Supreme Court explained in Davis:

The Florida Legislature has stated that a cause of action

accrues or begins to run when the last element of the cause

of action occurs. An exception is made for claims of fraud

and products liability in which the accrual of the causes of

action is delayed until the plaintiff either knows or should

know that the last element of the cause of action occurred.

Davis, 832 So. 2d at 709. Defendants argue that the delayed discovery doctrine does

not apply because there is “no evidence that the Gardinas engaged fraudulent means”

to prevent Plaintiff from discovering their alleged fraud. (Dkt. 87 at 15.) Plaintiff

responds that the delayed discovery doctrine applies because the evidence in the record

supports the contention that Defendants actively concealed their fraud. (Dkt. 94 at

15.) The delayed discovery doctrine applies to Plaintiff’s fraudulent misrepresentation

and concealment claims. See Fla. Stat. § 95.031(2).

Defendants have provided no evidence or argument to support their claim that

Plaintiff failed to exercise due diligence in uncovering Mr. Gardina’s alleged fraud

concerning the benefits he received under his policy. (Dkt. 87 at 14–19.) Therefore,

the court will not consider the statute of limitations related to Mr. Gardina’s alleged

fraud. See U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007)

(declining to address an argument because it was perfunctory, underdeveloped, and

not supported by citation to authority); Resol. Tr. Corp. v. Dunmar, 43 F.3d 587, 599

(11th Cir. 1995) (“There is no burden upon the district court to distill every potential

argument that could be made based upon the materials before it.”).

Defendants rely on the following evidence to support the contention that

Plaintiff did not exercise due diligence to uncover Defendants’ alleged fraud in

connection with Mrs. Gardina’s claim. First, Defendants rely on two medical review

opinions from 2004. (Dkts. 87 at 15–16; 87-38 at 2–3; 87-39 at 7.) That year, Plaintiff

hired Dr. James Fegan to review Mrs. Gardina’s medical records from her treating

physicians and conduct an initial external assessment. (Id.) The record reviews

occurred on May 12, 2004, and October 12, 2004. (Dkts. 87-38, 87-39.) After

reviewing the records, Dr. Fegan recommended that Mrs. Gardina undergo an

independent medical examination due to his doubts regarding her claim based on the

medical records provided. (Id.) In response to these opinions, Plaintiff sent Mrs.

Gardina a letter informing her that the medical documentation she had submitted thus

far did not demonstrate the existence of a functional limitation affecting her ability to

perform activities of daily living. (Dkt. 87-14.) The letter also requested that Mrs.

Gardina undergo an examination, as suggested by Dr. Fegan. (Id.) The letter warned

Mrs. Gardina that if Plaintiff did not receive the results of the examination by January

24, 2005, it would close her claim due to insufficient medical documentation

establishing a “chronic illness or disability” as defined by the policy. (Id.) On January

5, 2005, Mrs. Gardina presented to Dr. Andrew L. Sherman for the examination.

(Dkt. 87-15.) After conducting the examination, Dr. Sherman opined:

In my opinion, this is an extremely difficult but unusual

case. This is a patient who had a subarachnoid hemorrhage

and has suffered the complications of reduced memory,

mild left hemiparesis[,] and lack of judgment and awareness

of her condition. Her treatment has been atypical in that she

never had a course of inpatient rehabilitation[.] [S]he has

never had a course of speech therapy on a regular basis to

gauge her ability to exist in independent situations. My

feeling is that the patient has become completely dependent

on her husband. Whether or not this would have been the

case with an inpatient rehabilitation stay can never be

known. The reality is that the patient is completely

dependent on her husband for most, if not all, activities of

daily living. The patient is now two and three-quarter years

post injury. It is unlikely that after that much time has

elapsed since her injury that her rehabilitation potential will

be very high. In fact, it would be unlikely at this point for

the patient to regain any function that is useful. Therefore,

I believe the patient does meet eligibility for disability in that

she is unable to perform at least activities of daily living for

over 90 days[,] and she has severe cognitive impairment that

requires 24-hour supervision to protect her own safety.

(Dkt. 87-15 at 4.) After reviewing Dr. Sherman’s report, Plaintiff approved Mrs.

Gardina’s claim for long-term care benefits on January 26, 2005. (Dkt. 87-16.)

Plaintiff maintains that although Mrs. Gardina might “have been genuinely eligible

for benefits for some amount of time after her aneurysm . . . [b]y 2006 at the latest,

however, [Mrs. Gardina] was independent with her [a]ctivities of [d]aily [l]iving.”

(Dkt. 94 at 6.) As Plaintiff does not dispute the necessity of long-term care benefits

prior to 2006, the court will not consider the medical opinions from Drs. Fagan and

Sherman for statute of limitations purposes.

Second, Defendants rely on an activity check requested by Plaintiff on May 16,

2012, to confirm Mrs. Gardina’s condition. (Dkt. 87 at 16.) In a letter sent to Plaintiff

on June 5, 2012, the investigator summarized their findings as follows:

As a result of our investigation, we were able to confirm that

Ms. Carol J. Gardina continued to reside at 10633 Leafy

Way, Orlando, Florida, along with her husband[,] George.

As noted by the Reader, the subject appeared to be affiliated

with several different entities. Specifically, the claimant was

operating Wildflower Society, which was a non-profit

organization that helped out people and organizations that

were beautifying their surroundings. This organization was

being operated out of a family member’s home at one point.

Our source could not recall any recent events being held by

the subject and her organization. Neighbors noted that the

claimant always had ‘odd jobs’ and multiple jobs taking

place. She was described as an entrepreneur, but none of the

businesses appeared to take up much of her time. The

claimant and her husband also received supplemental

income from two rental properties, also on Leafy Way. The

claimant’s husband, being a contractor by trade, was the

main individual who maintained the properties. Neighbors

noted that the claimant was an avid gardener who enjoyed

planting flowers and going to various plant stores. She also

spent a lot of time with her family when her husband was

working during the day.

(Dkt. 87-18 at 1.) Based on these observations, the investigator recommended

additional surveillance. (Id. at 1–2.) Plaintiff does not dispute that an activity check

was conducted. The activity check indicates a discrepancy in Mrs. Gardina’s activity

level, as her neighbors noted that she had sufficient physical ability to care for a garden

and the mental capacity to engage in entrepreneurial efforts. In contrast, not long after

receiving the activity check, Plaintiff contends that it received new medical records

from Mrs. Gardina’s treating physicians. (Dkts. 94 at 8–9; 94-7 at 7.) These records

reflected that Mrs. Gardina had severe limitations in functional capacity and required

24-hour observation because of her memory disorder and active assistance with all

daily activities. (Dkts. 94 at 8–9; 94-7 at 7.) Notwithstanding the newly received

medical records, a reasonable jury could conclude that Plaintiff should have diligently

followed up on the activity check with additional surveillance.

Third, Defendants rely on video surveillance requested by Plaintiff on April 22,

2016. (Dkt. 87 at 17–18.) In a letter sent to Plaintiff on May 9, 2016, the investigator

summarized his findings as follows:

The claimant is currently believed to be residing at 10621

Leafy Way, Orlando, FL, which is an address she is also

associated with. V[ideo] was obtained of the claimant

walking, standing, bending, carrying items, assisting her

spouse with carrying a mattress, carrying a small table,

checking the mail and entering and exiting the vehicle,

pushing a wheelbarrow, conversing, holding a rope,

checking the mail and entering and exiting the residences

and vehicle. The claimant was observed to ambulate

normally without the use of any visible medical devices.

(Dkt. 87-19 at 2.) Plaintiff does not dispute that it requested and received surveillance

footage of Mrs. Gardina in 2016. Although the court was only provided a written

summary of the video surveillance, Defendants do not contest the accuracy of the

summary. The court finds that a reasonable jury could conclude that the video

surveillance is an indication of fraudulent activity that Plaintiff should have pursued

diligently.

Plaintiff maintains that it could only identify Mrs. Gardina as the woman being

surveilled in the video once an employee took a photo of her during an eligibility

assessment on April 21, 2023. (Dkts. 94-7 at 3–7; 94-22 at 6.) According to Plaintiff,

it did not know what Mrs. Gardina looked like until receiving photographic

confirmation of her likeness. At that point, Plaintiff allegedly realized Mrs. Gardina

was the same person from the surveillance conducted in 2016 and 2022.1 (Dkt. 94-22

at 6–7.) Thus, Plaintiff asserts that it could not discover the alleged fraud by

Defendants until Mrs. Gardina’s eligibility assessment for benefits in April 2023 due

to Defendants’ alleged ongoing misrepresentations, concealment, and lack of

cooperation. (Dkts. 25 at ¶¶ 48–71; 94 at 15–17.)

Upon considering the evidence and drawing all reasonable inferences in

Plaintiff’s favor, a genuine dispute exists concerning whether Plaintiff’s fraudulent

1 Plaintiff maintains that assessors confirm the insured’s identification before the assessment

but generally do not take photographs of the insured at a benefit eligibility assessment. (Dkt.

94 at 5.)

misrepresentation and concealment claims are barred by the statute of limitations.

Specifically, a genuine dispute exists regarding whether Plaintiff exercised due

diligence in discovering the facts giving rise to its fraud claims against Mrs. Gardina

after receiving the results of the activity check on June 5, 2012, the video surveillance

on May 9, 2016, or at any other time before the benefit eligibility assessment conducted

on April 21, 2023. See Bd. of Trs. of Santa Fe Cmty. Coll. v. Caudill Rowlett Scott, Inc., 461

So. 2d 239, 242–43 (Fla. Dist. Ct. App. 1984) (“In order to succeed on a motion for

summary judgment based upon the [s]tatute of [l]imitations, the movants in the case

at issue [are] required to conclusively show that there exists no disputed issue of fact

with respect to the date of the commencement of the limitations period[.]”); Morton’s

Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 828 (11th Cir. 1999) (“The

commencement of the statute of limitations is a question of fact.”). Accordingly, the

court denies the Motion as to Defendants’ statute of limitations argument.

2. Statute of Repose (Count VII)

Next, Defendants maintain that Plaintiff’s civil conspiracy claim is barred by

Florida’s statute of repose. Plaintiff disagrees and contends that genuine issues of

material fact remain for trial concerning the issue.

Under Florida law “[a]n actionable [civil] conspiracy [claim] requires an

actionable underlying tort or wrong.” Posner v. Essex Ins. Co., 178 F.3d 1209, 1218 (11th

Cir. 1999) (quoting Fla. Fern Growers Ass’n v. Concerned Citizens, 616 So. 2d 562, 565

(Fla. Dist. Ct. App. 1993)). Put differently, a civil conspiracy claim “must be based

on an existing independent wrong or tort that would constitute a valid cause of action

if committed by one actor.” Id. Here, Plaintiff bases its civil conspiracy claim on its

underlying actionable fraudulent misrepresentation and concealment claims. (Dkt. 25

¶¶ 123–131.) Unlike Plaintiff’s fraudulent misrepresentation and concealment claims,

the delayed discovery doctrine does not apply to Plaintiff’s civil conspiracy claim.

Davis, 832 So. 2d at 709 (explaining that the delayed discovery doctrine does not apply

to claims for civil conspiracy, breach of fiduciary duty, conversion, and unjust

enrichment). However, the statute of repose is applicable here.

The statute of repose “is a substantive statute which not only bars enforcement

of an accrued cause of action but may also prevent the accrual of a cause of action

where the final element necessary for its creation occurs beyond the time period

established by the statute.” WRH Mortg., 684 So. 2d at 327. Florida’s statute of repose

expressly provides that “[a]n action for fraud under [Florida Statute Section] 95.11(3)

must be begun within 12 years after the date of the commission of the alleged fraud,

regardless of the date the fraud was or should have been discovered.” Fla. Stat. §

95.031(2)(a). The operative date for the commencement of the statute of repose “runs

from the date of a discrete act on the part of the defendant without regard to when the

cause of action accrued.” Kush v. Lloyd, 616 So. 2d 415, 416 (Fla. 1992). Nevertheless,

if the plaintiff has alleged numerous discrete fraudulent acts, “the defendant’s last act

or omission triggers Florida’s fraud statute of repose.” Phillip Morris USA, Inc. v. Russo,

175 So. 3d 681, 686 (Fla. 2015); see Phillip Morris USA Inc. v. Principe, 337 So.3d 821,

827 (Fla. Dist. Ct. App. 2021) (discussing the application of the statute of repose).

Plaintiff maintains that Defendants’ last fraudulent act was their

misrepresentation that Mrs. Gardina needed significant assistance with activities of

daily living during her benefit eligibility assessment on April 21, 2023. (Dkt. 25 ¶¶ 60–

71, 123–131.) Plaintiff denied Mrs. Gardina’s claim for long-term care benefits after

the April 2023 assessment. If the jury finds that Defendants committed fraudulent

misrepresentation and concealment, the jury will also determine when the last

fraudulent act occurred. This determination is a question of fact that the jury must

decide. See Laschke v. Brown & Williamson Tobacco Corp., 766 So. 2d 1076, 1079 (Fla.

Dist. Ct. App. 2000) (reversing grant of summary judgment on the plaintiffs’ civil

conspiracy claim finding that “the date of the last act done in furtherance of the

conspiracy present[ed] a question of fact not proper for resolution on summary

judgment”). The Motion is therefore denied as to this argument.

C. Declaratory Relief (Counts V & VI)

Defendants maintain that Plaintiff’s claim to void the policies (Counts V and

VI) constitute equitable fraud claims that fail as a matter of law because Defendants

had no legal duty to disclose the accurate nature of their health. (Dkt. 87 at 21.)

However, as Plaintiff persuasively explains, it does not allege equitable fraud in

relation to these claims. (Dkt. 94 at 20.) Instead, because the policies lack an express

void for fraud provision, Plaintiff seeks declarations that the policies are void for fraud

if the jury makes that determination at trial. (Dkts. 87-1; 87-2.) “Unless waived, a

jury must make findings concerning all facts which are common to the legal and

equitable claims before the trial court may consider granting an equitable remedy.”

Billian v. Mobil Corp., 710 So. 2d 984, 992 (Fla. Dist. Ct. App. 1998); see Lincoln Benefit

Life Co. v. Dallal, 520 F. Supp. 3d 1237, 1246–47 (C.D. Cal. 2021) (using the court’s

equitable authority to void a long-term care insurance policy that did not contain an

express void for fraud provision after a jury trial verdict found that the insured

defrauded the insurer when California law was ambiguous as to whether fraud voids

a policy that lacks an express void for fraud provision), aff’d, 2022 WL 605709, at *3

(9th Cir. Mar. 1, 2022) (affirming policy invalidation under federal equitable powers).

Thus, the court cannot conclude that Plaintiff’s declaratory relief claims fail as a matter

of law as they require a factual determination by the jury before they are ripe for

adjudication by the court. The Motion is therefore denied as to this argument.

D. Federal Rule of Civil Procedure 9(b)

Defendants argue that Plaintiff’s Amended Complaint should be dismissed

because it violates the heightened pleading standard set forth in Federal Rule of Civil

Procedure 9(b). (Dkt. 87 at 12–13.) Plaintiff responds that Defendants have waived

this argument by raising it for the first time during the summary judgment stage. (Dkt.

94 at 18.) Plaintiff also argues that Defendants had fair notice of Plaintiff’s fraud

claims. (Id.)

Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).

Rule 9(b) addresses the sufficiency of a plaintiff’s complaint rather than the merits of

the claims it contains, thus challenges to the adequacy of a fraud claim under this rule

are generally made through a motion to dismiss under Rule 12(b), and “[a] party who

fails to raise a Rule 9(b) objection normally waives the requirement.” Lorali, Inc. v.

SMK Assocs., LLC, Case No. 13-CV-22204-WILLIAMS/SIMONTON, 2014 WL

12536977, at *6 (S.D. Fla. Aug. 26, 2014) (internal quotations omitted); see also Milan

v. Colvin, No. 09-3666 (DWF/TNL), 2011 WL 1988205, at *5–6 (D. Minn. May 20,

2011) (declining to grant summary judgment on Rule 9(b) grounds after the defendant

answered the complaint).

Indeed, a Rule 9(b) objection is waived if it is not raised in the first responsive

pleading or in an early motion. U.S. ex rel. Purcell v. MWI Corp., 824 F. Supp. 2d 12,

25 (D.D.C. 2011); see also 2 James W. Moore et al., Moore’s Federal Practice - Civil §

9.03 (3d ed. 2024) (“If the failure to plead with particularity under Rule 9(b) is not

raised in the first responsive pleading or in an early motion, the issue will be deemed

waived.”). As Defendants did not raise this issue in their Motion to Dismiss (Dkt. 32)

and their summary judgment motion contains detailed arguments refuting their

alleged fraudulent behavior, the court finds that Defendants have waived their Rule

9(b) objection. Moreover, Defendants have responded to the Amended Complaint

and demonstrated a full understanding of the claims against them. See Davsko v. Golden

Harvest Prods., 965 F. Supp. 1467, 1474 (D. Kan. 1997) (explaining the Rule 9(b)

requirement helps ensure that the defendant can prepare an adequate responsive

pleading). As a result, the Motion is denied as to this argument.

E. Independent Tort Doctrine

Defendants renew their previous argument that Florida’s independent tort rule

bars Plaintiff’s claims. (Dkt. 87 at 13–14.) Plaintiff responds that the independent tort

rule does not apply because Plaintiff does not allege a breach of contract and seeks

damages distinct and separate from any contractual damages. (Dkt. 94 at 18–19.)

The court will not consider this argument because Defendants improperly raised

it by incorporating by reference the same argument from their Motion to Dismiss (Dkt.

32). See M.D. Fla. Loc. R. 3.01(f) (“A motion, other legal memorandum, or brief may

not incorporate by reference all or part of any other motion, legal memorandum or

brief.”) The court declines to reconsider this argument as it was fully considered in

the court’s Order denying Defendants’ Motion to Dismiss. (Dkt. 68.) In that ruling,

the court determined that Florida’s independent tort rule does not prevent Plaintiff’s

claims from proceeding. (Id.) The Motion is therefore denied as to this argument.

F. Defendants’ Counterclaims for Insurance Coverage

Defendants argue that Plaintiff breached the long-term care contracts by

wrongfully terminating Defendants’ benefits. (Dkt. 87 at 22–24.) Specifically,

Defendants maintain that Plaintiff cannot prove that Mrs. Gardina did not need

substantial assistance to perform at least two activities of daily living before 2022. (Id.

at 22–23.) Defendants also maintain that Plaintiff wrongfully terminated Mr.

Gardina’s benefits when he failed to execute an authorization to release his medical

records. (Id. at 23–24.) Plaintiff asserts that disputes of material facts exist concerning

Defendants’ representations and omissions related to their health. (Dkt. 94 at 4, 20.)

Plaintiff also contends it terminated the Gardinas contracts because they were not

eligible for long-term care under the policies. (Id.)

Based on the evidence presented and drawing all reasonable inferences in favor

of Plaintiff, the court cannot conclude that Plaintiff breached the contracts. Genuine

disputes of material fact exist concerning whether Defendants’ representations and

omissions were fraudulent as discussed above since Prudential maintains it denied

Defendants’ claims for coverage because they were not eligible for long-term care

under the policies. Homeward Real Est., Inc. v. Shoubaki, 346 So. 3d 144, 148 (Fla. Dist.

Ct. App. 2022) (explaining “whether there has been a breach of the terms of [a]

contract is a question of fact”); Organo Gold Int’l, Inc. v. Aussie Rules Marine Servs., Ltd.,

416 F. Supp. 3d 1369, 1377 (S.D. Fla. 2019) (applying Florida law and denying

summary judgment because there were genuine issues of material fact as to whether

the defendants breached their contractual obligations). The Motion is therefore denied

as to this argument.

CONCLUSION

Accordingly, itis ORDERED that Defendants’ Motion for Summary Judgment

(Dkt. 87) is DENIED.

ORDERED in Orlando, Florida, on December 17, 2024.

] co!

JULIE S. SNEED

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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