# Fruchter v. Aetna Life Insurance

> District Court of Appeal of Florida · August 29, 1972 · 266 So. 2d 61

URL: https://www.frixlaw.com/law-library/cases/7450597

## Case

- **Full name:** Emanuel M. FRUCHTER v. AETNA LIFE INSURANCE COMPANY, Inc.
- **Court:** District Court of Appeal of Florida
- **Decided:** August 29, 1972
- **Citations:** 266 So. 2d 61; 1972 Fla. App. LEXIS 6236
- **Precedential status:** Published
- **Opinion:** Dissent by Pearson
- **Judges:** Barkdull, Carroll, Pearson
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7450597

## Opinion text

PEARSON, Judge
(dissenting).
The instruction given by the trial court was Florida Standard Jury Instruction Number 3.7. The instruction requested by the appellant was as follows:
“In an action for disability benefits under an insurance policy such as we have in this case, the insurance company has the burden of establishing by the greater weight of the evidence that the insured was and is able to engage in an occupation for remuneration or profit and that total disability within the insurance policy had ceased.”
The court did not, in my view, commit reversible error when it denied the requested instruction which reads as though the initial burden of proof was upon the defendant. The law as established in New York Life Ins. Co. v. Lecks, 122 Fla. 127 , 165 So. 50 (1935), and Mutual Life Ins. Co. of New York v. Ewing, 151 Fla. 661 , 10 So.2d 316 (1942), could well have been the basis for a proper instruction upon a presumption arising from facts established.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7450597. Public record. Not legal advice.