A decision by a federal appeals court last week shows what limited opti
ons insurance carriers have when they discover major misrepresentation by the insured long after claims have been paid.
The U.S. 11th Circuit Court of Appeals last week found that MONY, also known as Mutual of New York, could not sue a we
ll-known Tampa ophthalmologist for unjust enrichment after the insurer showed that the doctor had misrepresented the extent of his disability and loss of income.
The July 23 ruling threw out a verdict that had awarded more than $388,000 to MONY in 2023. A federal court jury foun
d that the eye doctor, Bernard Perez, had no lasting effects from a bout of skin cancer in 2011, despite his claims. Aft
er the trial judge added interest, the award came to almost $449,000.
But the doctor appealed, and the 11th Circuit found that Flori
da law does not allow unjust enrichment tort claims if the matter is covered by a contract—an insurance contract, in this case.
“MONY’s unjust enrichment claim must fail under Florida law because it covers the same subject matter as the insu
rance contract,” appellate court Judge Stanley Marcus wrote in the opinion.
The insurance policy contained no clawback provision that would allow the insurer to seek disgorgement of im
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providently made payments to Perez through the years, the court found.
“MONY’s failure to include a clawback provision does not allow it to contravene or unsettle what is clearly established law in Florida.”
Clawback provisions are rarely seen in insurance policies, said Karyn Roeling, president of the Seibert Insur
ance Agency in Tampa and chair of the Florida Association of Insurance Agents. But clawbacks are not barred by Florida insurance law, MONY’s attorney told the court and others have confirmed.
“For insurance companies to properly protect themselves, there’s no downside to having a provision in the policy that allows the company to recover” in cases of misdeeds by insureds, said Miami attorney Josh Goodman, a recovery and subrogation specialist with the Cozen O’Connor law firm.