Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT GENERALI-U.S. BRANCH, Appellant, v. BARRY SPRINGEL and WENDY SPRINGEL, Appellees. No. 4D2025-1824 [August 19, 2026] Appeal from the County Court for the Nineteenth Judicial Circuit, Martin County; Jennifer Alcorta Waters, Judge; L.T. Case No. 432023CC001419CCAXMX. Jedidiah Vander Klok of Kennedys CMK LLP, Miami, Jordan H. Lewis of Kennedys CMK LLP, Fort Lauderdale, and Katrine L. Hyde of Kennedys CMK LLP, Berkeley Heights, New Jersey, for appellant. Stephanie L. Serafin and Rebecca Mercier Vargas of Kreusler-Walsh, Vargas & Serafin, P.A., Palm Beach Gardens, and Tim B. Wright of Wright, Ponsoldt & Lozeau Trial Attorneys LLP, Stuart, for appellees. LEVINE, J. Appellees, Barry Springel and Wendy Springel, are active seniors. They are also avid travelers, who generally took three to four trips a year. In fact, from 2011 to 2021, they took about thirty cruises. The insured1 described himself as a “fitness guy.” He rode his bike every morning and went to the gym every day. He continued this fitness activity through May 15, 2022—just two days before his eventual surgery. This was his routine. For each trip the insureds took, they always purchased travel insurance. This was also their routine. In March 2022, the insureds took a cruise. They had purchased travel insurance from appellant, Generali. The insureds also booked a cruise to the Arctic for July 2022 and subsequently purchased travel insurance 1 The “insured” refers to appellee Barry Springel, while the “insureds” refers jointly to appellees Barry Springel and Wendy Springel. from Generali for this trip. As a result of unfolding events, the insureds were not able to take the Arctic cruise and sought a claim based on the travel insurance policy they purchased, which Generali denied. It has been said that “[n]ot all those who wander are lost.” 2 But in this case, the insureds, who wanted to “wander,” “lost”—at least when it came time for the insureds to collect on their travel insurance policy. After being denied coverage by Generali, the insureds then sought a declaration regarding their travel insurance coverage. The trial court, following a non-jury trial, found in favor of the insureds and ordered reimbursement for the cost of the July 2022 cruise. On appeal, Generali argues that: (1) the insured’s “sickness” commenced before coverage was in effect, (2) the sickness was not unforeseeable, and (3) policy exclusions bar the insureds’ recovery. We find that the trial court did not err, and, as such, we affirm. I. Facts On February 8, 2021, the insureds booked a cruise departing from Oslo, Norway, on July 22, 2022. The total price of the cruise was $38,658. The cruise line’s cancellation policy provided for a full refund in the form of a future cruise credit up until 90 days before departure. On February 15, 2022, the insureds purchased a policy with Generali to insure the trip, which cost $3,492.16. The insured was 79 years old when he purchased the travel insurance with Generali. The policy included 100% coverage for “Trip Cancellation,” “if you are prevented from taking your Trip due to one of the following unforeseeable Covered Events that occur before departure on your Trip to you or your Traveling Companion, while your coverage is in effect under this policy.” The policy included the following “Covered Event[]”: The Sickness, Injury or death of you, your Family Member, your Traveling Companion or your Service Animal. The Sickness or Injury must first commence while your coverage is in effect under the Policy, must require the in-person treatment by a Physician, and must be so disabling in the written opinion of a Physician as to prevent you from taking your Trip (either because your condition prevents your travel, or because your Family Member, Traveling Companion or your Service Animal requires your care). The policy defined “Physician” and “Sickness” as: 2 J.R.R. Tolkien, The Fellowship of the Ring 168 (Houghton Mifflin 2002) (1954). 2 PHYSICIAN means a person licensed as a medical doctor by the jurisdiction in which he/she is resident to practice the healing arts. He/she must be practicing within the scope of his/her license for the service or treatment given and may not be you, a Traveling Companion, or a Family Member of yours. SICKNESS means an illness or disease of the body that requires in-person examination and treatment by a Physician. The policy also excluded “Pre-Existing Condition[s]” from the Trip Cancellation benefit. This was defined as: PRE-EXISTING CONDITION means a Sickness or Injury during the 180-day period immediately prior to your effective date for which you or your Traveling Companion: (1) received, or received a recommendation for, a diagnostic test, examination, or medical treatment; or (2) took or received a prescription for drugs or medicine. Item 2 of this definition does not apply to a condition which is treated or controlled solely through the taking of prescription drugs or medicine and remains treated or controlled without any adjustment or change in the required prescription throughout the 180-day period before coverage is effective under this Policy. On June 28, 2022, the insureds canceled their cruise. The insureds began the claims process with Generali to recover the cost of the canceled cruise. The insureds provided a written “Physician’s Statement” from the insured’s doctor, which stated that the insured “underwent a lumbar fusion on 5/17/2022 and will need recovery time + physical therapy post operatively w/o any travel @ this time.” Generali denied the insureds’ request for reimbursement, claiming that the insured’s “sickness” commenced prior to the policy’s effective period, and that the condition was a pre-existing condition, subject to the exclusion in the policy. The denial letter stated that: The effective date of your policy is 02/16/2022, and the medical documentation provided by your doctor indicates that the sickness that caused your loss has been ongoing since being treated on 02/04/22, prior to when the coverage under the policy became effective. As the condition is Pre-Existing as defined, and did not occur after your policy became effective, no benefits are payable for your claim. 3 The insureds then filed a complaint for declaratory relief against Generali, requesting that the trial court construe the policy and applicable coverage. The evidence presented at a non-jury trial established that the insured had been diagnosed with the onset of spinal stenosis in the fall of 2011, following slight pain in the hamstring area of both legs. Yet from 2011 to 2020, the insured received no examinations or treatment for the condition. The insured continued traveling and maintained an active lifestyle, only experiencing episodic pain between 2011 and 2021. While on a cruise in December 2021, the insured started having difficulty, but only when walking long distances. The insured visited his primary care physician who sent him for an MRI on January 8, 2022. On February 1, 2022, the insured saw a physician’s assistant. The physician’s assistant read the insured’s MRI and diagnosed him with spondylolisthesis and spinal stenosis. The insured then scheduled an appointment with the neurosurgeon for March 28, 2022. The physician’s assistant suggested that the insured try injections to relieve his back pain. On February 4, 2022, the insured had a special X-ray to prepare for his appointment with the neurosurgeon. On February 10, 2022, the insured visited an anesthesiologist specializing in pain management, and received an injection to try and help alleviate the pain. The insured received a second injection in his back on March 3, 2022. During this time, the insured maintained an active lifestyle, riding his bike and going to the gym. The insured continued to struggle only when walking long distances. Still, the insureds took a 12-day cruise, also insured by Generali, on March 13, 2022. The insured met with the neurosurgeon for the first time on March 28, 2022. At this appointment, the neurosurgeon told the insured he needed to have spinal fusion surgery. The insured “was hoping [he] could put this off . . . for months and months,” but the neurosurgeon told the insured that there was a “substantial risk that if [he] wait[s] [he] could lose bowel and bladder control.” So the insured decided, based on this new information, that he needed to move forward with the surgery. At this appointment, the insured asked the neurosurgeon if he would be able to travel on the July cruise, and the doctor said, “we’ll see.” Prior to the surgery, the insured carried on with his normal life and “fully intend[ed] to and expect[ed]” to go on the July cruise. The insured underwent spinal fusion surgery on May 17, 2022. The surgery ended up 4 being “more serious than anybody expected.” The insured unexpectedly had to stay in the hospital for three days after surgery. The insured went to his post-operative appointment with the neurosurgeon on June 28, 2022. At this appointment, the doctor said he would not recommend that the insured go on the July cruise because he had not recovered enough from surgery. After the doctor’s appointment, the insureds canceled the cruise. Following the non-jury trial, the trial court found in favor of the insureds and determined that they were entitled to payment by Generali for the full cost of the canceled cruise. The trial court found that: [The insured’s] Sickness first commenced on March 28, 2022, while coverage was in effect, when he was examined in-person by [the neurosurgeon] and then treated by him on May 17, 2022. After examining [the insured] on June 28, 2022, [the neurosurgeon] submitted a Statement to [Generali] expressing his opinion that [the insured] was prevented from taking the cruise due to a disabling condition caused by the surgery. The trip was not cancelled due to spinal stenosis and/or spondylolisthesis. The trial court found that the insured’s sickness was not foreseeable because the insured did not learn of the X-ray results until March 28, 2022. Additionally, prior to the effective date of the policy, the insureds did not know what treatment the neurosurgeon would recommend and, if the insured had surgery, what his physical condition would be after surgery. The trial court found that the insureds “intended to take the cruise,” as evidenced by their conduct in purchasing the policy instead of canceling the cruise with the cruise line. Had the insureds canceled the cruise instead of purchasing the policy, there would have been no cancellation penalty, and the insureds would have saved the $3,492.16 policy premium. The trial court also found that the insured’s claim was not barred by the pre-existing condition exclusion. This appeal follows. II. Standards of Review “When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence.” Jasser v. Saadeh, 91 So. 3d 883, 884 (Fla. 4th DCA 2012) (citation omitted). “However, where a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novo.” Id. (citation omitted). “Generally, in a non-jury trial, this Court will 5 defer to the trial court’s findings of fact so long as those findings are supported by competent substantial evidence.” U.S. Bank Nat’l Ass’n as Tr. for Lehman XS Tr. Mortg. Pass-Through Certificates, Series 2006-16N v. Devoe, 315 So. 3d 1232, 1235 (Fla. 5th DCA 2021). “Insurance policy construction is a question of law subject to de novo review.” Gov’t Emps. Ins. Co. v. Macedo, 228 So. 3d 1111, 1113 (Fla. 2017). III. Analysis 1. Whether the Sickness Commenced During the Policy Coverage Initially, Generali argues that the insureds’ recovery is barred because the insured’s sickness commenced before the travel insurance coverage was in effect. We find that the trial court did not err by holding that the insured’s sickness commenced during the policy’s effective period. The insured’s sickness, as defined under the policy, commenced on March 28, 2022, when the insured had his initial appointment with the neurosurgeon and was informed that he would need surgery. Further, the insured was then first informed that the surgery needed to be performed before the cruise because of the risks of postponing surgery, including the risk of loss of “bowel and bladder control.” Thus, because of the risk of waiting, it became necessary for the insured to have surgery prior to his cruise departure. This surgery then led to the “disabling condition” of being a post-operative patient in recovery, which prevented the insureds from going on the Arctic cruise. The evidence presented at trial indicates that, prior to the March 28, 2022, appointment with the neurosurgeon, the insured had no intention of undergoing surgery before his July cruise. The insured testified that he was hoping to postpone the surgery “for months and months,” until the neurosurgeon informed the insured of the significant risks of postponing the surgery. The insured asked the neurosurgeon at the March 28, 2022, appointment whether he would be able to travel on the July cruise, and, at that time, the neurosurgeon was unable to answer with any certainty. From at least 2011, the insured was active, went to the gym, and rode his bike. He also traveled, including taking a 12-day cruise on March 13, 2022. Although the insured was already experiencing some back pain when walking long distances, these symptoms were separate and distinct from the reasons and timing for the eventual surgery recommended by the neurosurgeon at the March 28 appointment. 3 3 The insureds argue that the insured was not examined by a physician until his appointment with the neurosurgeon on March 28, 2022, during policy coverage. 6 Krueger v. Reliance Standard Life Insurance Co., 772 F. Supp. 3d 893 (N.D. Ill. 2025), is instructive. In Krueger, the appellant had visited a neurologist three times for chronic migraines, was diagnosed with sinus tachycardia, and took propranolol for tachycardia within three months prior to the effective period of her long-term disability insurance. Id. at 899. POTS, or postural orthostatic tachycardia syndrome, was ruled out as a diagnosis during this time. Id. After the policy became effective, the appellant visited two gastroenterologists and another neurologist for abdominal pain, an increase in migraines, and worsening dizziness. Id. The appellant was ultimately diagnosed with POTS and filed a claim for long-term disability benefits. Id. The insurer denied the claim as a pre- existing condition, because the appellant had a history of tachycardia and use of propranolol prior to the effective date of the policy which “align[ed] with the diagnosis of POTS and the medications used to treat this condition.” Id. at 900. The court held that the appellant was entitled to long-term disability benefits. Id. at 905-06. The court concluded that the appellant’s POTS was not an excluded pre-existing condition, because “the doctors were treating the conditions that they diagnosed, inappropriate sinus tachycardia and migraines.” Id. at 905. The court reasoned that “not only did the doctors not suspect that [the appellant] was afflicted with POTS, one of her primary treating physicians had expressly ruled it out.” Id. at 906. The court also reasoned that the appellant’s ailments can be symptoms of POTS, but they could also be associated with a number of other medical conditions or exist by themselves. Id. Similarly, here, the insured had received prior treatments for back conditions which were distinct from the sickness that necessitated the cancellation of the cruise. The insured’s condition worsened during the policy period when the neurosurgeon told the insured for the first time that he needed immediate surgery to prevent the possible cascading effects of postponing surgery, that being the loss of “bowel and bladder control.”4 We find that the insured’s appointment with the physician’s assistant did not satisfy the definition of a physician under the policy, because a physician’s assistant is not “a person licensed as a medical doctor.” We need not reach this argument as to the anesthesiologist because of the distinct nature of the insured’s sickness as evidenced by the appointment on March 28, 2022. 4 Generali relies on Southshore Hospitality Management, LLC v. Independent Specialty Insurance Co., 582 F. Supp. 3d 1222 (M.D. Fla. Jan. 25, 2022). That case is distinguishable because it merely states that an exclusion for losses 7 Thus, the trial court did not err in concluding that the insured’s sickness commenced during the policy coverage. There was competent substantial evidence that the sickness triggering cancellation of the cruise was the insured’s separate condition, which immediately required surgery to avoid the risk of loss of bowel and bladder control, followed by the required post-operative recovery. 2. Whether the Sickness was Foreseeable We also find that the trial court did not err in holding that the insured’s sickness was not reasonably foreseeable. “[T]he general principle [is] that a party may not insure against a loss that he knows has already occurred and that he fails to disclose to the insurer.” Nourachi v. First Am. Title Ins. Co., 44 So. 3d 602, 607 (Fla. 5th DCA 2010). Initially, the instant issue presents an issue of fact resolved by the trial court sitting as the finder of fact in a non-jury trial. Cohen v. Schrider, 533 So. 2d 859, 860 (Fla. 4th DCA 1988) (“Foreseeability is generally a question of fact . . . [u]nless it can be determined that no reasonable persons could differ.”); Calvert Fire Ins. Co. v. Tarr, 391 So. 2d 244, 244- 45 (Fla. 3d DCA 1980) (holding that whether a loss occurred under the terms of an insurance policy was a question of fact which “reaches the appellate court clothed with a presumption of correctness,” where “the trial judge [was] sitting as a trier of the facts”). The trial court’s factual finding, that the insured’s sickness was not foreseeable, is afforded a presumption of correctness on appeal, and will be disturbed only if it is not supported by competent substantial evidence. See Mass. Cas. Ins. Co. v. Johansen, 270 So. 2d 397, 398 (Fla. 3d DCA 1972) (“At trial, the judge was sitting as the trier of fact and he was presented with all the evidence . . . . His findings of fact and the eventual decision as stated in the final judgment come to this court carrying a presumption of correctness. The findings made by the trial judge are entitled to the weight of a jury verdict if supported by substantial competent evidence in the record on appeal.”) (citations omitted). The trial court’s finding that the insured’s sickness was unforeseeable is supported by competent substantial evidence. When the insureds purchased the policy, the insured was still maintaining an active lifestyle, biking and going to the gym. The insureds went on a separate 12-day cruise, also insured by Generali, after they had already purchased the “caused by or resulting from any virus” also excluded losses caused by the COVID-19 virus. Id. at 1226. 8 travel insurance policy for the cruise to the Arctic. The insured knew he was experiencing some back pain while walking long distances, but did not know that he would need surgery until his appointment with the neurosurgeon, only after coverage had commenced. The insured testified that he would have postponed the surgery for months, but for the possible unforeseen effects of loss of bowel and bladder control that postponing the surgery could have resulted in. This was not a foreseeable condition, because there is no evidence in the record that the insured knew of the significant risk of postponing surgery before coverage commenced. Thus, we find that there is competent substantial evidence supporting the trial court’s conclusion that the insured’s sickness was unforeseeable. 3. Whether the Pre-Existing Condition Exclusion Bars Recovery We find that the trial court did not err in determining that the insureds’ recovery is not foreclosed based on the pre-existing condition exclusion in the policy. 5 At the outset, Generali bears the burden of proving that the pre-existing condition exclusion bars coverage. See U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1065 (Fla. 1983) (“The burden of proving an avoidance of the action on the basis that the loss is not covered, since it comes within a specific exclusion contained in the policy is upon the insurer.”) (citation omitted); see also Herrera v. C.A. Seguros Catatumbo, 844 So. 2d 664, 668 (Fla. 3d DCA 2003) (“[W]hile an insured or beneficiary carries the burden of proving coverage under a policy, the insurer bears the burden of proving applicability of a claimed policy exclusion.”). For the pre-existing condition exclusion to apply, the insured must have been treated for the same condition in the 180-day period prior to the effective date of coverage. See Ganson v. State, Dep’t of Admin., Office of State Emps.’ Ins., 554 So. 2d 516, 518 (Fla. 1st DCA 1989) (holding that the appellant’s claim was not barred by the pre-existing condition exclusion because the situational depression she was treated for throughout her life and her later diagnosed bipolar depression were separate conditions, and “the fact that both conditions have certain common symptoms . . . does not mean that they are the same condition”). In Ganson, the final order incorrectly stated that “depression is depression,” not recognizing that situational depression and bipolar 5 Generali also argues that the insureds’ recovery is barred by the policy exclusion for “loss[es] that result[] from an illness, disease, or other condition, event or circumstance which occurs at a time when coverage is not in effect for you.” We find that the analysis for this exclusion is analogous to the first issue. Because we find that the insured’s sickness commenced during the policy coverage, we also affirm on this exclusion. 9 depression, although both seemingly categorized as “depressions,” were clearly separate and distinct conditions. Id. at 519. Similarly, in the present case, although the insured had prior back issues, the present sickness was a separate and distinct condition. See id. There is competent substantial evidence that the pre-existing condition exclusion does not apply in the instant case. The condition which necessitated cancellation of the trip was a distinct condition, and, thus, not the same condition, for which the insured had received treatment within the 180-day period preceding policy coverage. The immediacy of the surgery due to the possibility of loss of “bowel and bladder control” was not known by the insured until March 28, 2022, during the time of policy coverage. Generali relies on Ravenscroft v. CSA Travel Protection & Insurance Services, No. 20-CV-020-JFH-JFJ, 2021 WL 4037832 (N.D. Okla. Sep. 3, 2021). In Ravenscroft, the court held that “the most significant undisputed fact here” was that the complications from the insured’s surgery arose prior to the insurance coverage. Id. at *2. Thus, this was clearly a pre- existing condition for which coverage was excluded. Id. at *3. Ravenscroft is clearly distinguishable from the instant case. Unlike Ravenscroft, it is clear in the instant case that the complication necessitating the trip cancellation did not occur prior to the commencement of insurance coverage. Continental Casualty Co. v. Fooden, 293 So. 2d 758 (Fla. 3d DCA 1974), is persuasive. The insured in Fooden began experiencing heart problems in 1965 and was diagnosed with arteriosclerotic cardiovascular disease. Id. at 758. One month prior to issuance of the insured’s disability insurance policy, the insured was “tentatively diagnosed [with] a right carotid insufficiency” and his doctor “ordered an arteriogram.” Id. The insured had surgery to correct the insufficiency of the right carotid artery. Id. During this surgery, “a piece of ulcerated material apparently broke loose within the carotid artery and traveled to [the insured’s] brain,” leaving the insured with paralysis in his left arm. Id. at 759. The insured’s doctor testified that he was disabled because of the left arm paralysis he received after the surgery. Id. The insurer argued that the insured’s condition was a pre-existing condition excluded from coverage. Id. at 758. The insurer further argued that the insured had heart disease for five years prior to the effective date of the policy and the insured had consulted with a doctor within the twelve-month period prior to the insurance policy. Id. at 759. The Third 10 District held “that the ‘sickness’ which disabled the [insured] became active and was diagnosed by [the surgeon] after the policy became effective.” Id. at 760. Further, “[t]he incapacity to [the insured’s] left arm was not manifested until after the March 15th operation.” Id. The surgeon had stated that the “arteriosclerosis, which afflicted the [insured], is an ‘inescapable part of aging’ which everyone develops to some degree.” Id. at 759-60. Similarly, in the present case, the insured had back issues previously diagnosed in 2011. But just like in Fooden, the insured’s generalized back issues could also be considered part of the “inescapable part of aging,” as the anesthesiologist testified that the insured’s back conditions were “not atypical given his age.” See id. The insured in the instant case, like in Fooden, had undoubtedly received a general diagnosis regarding the conditions in his back prior to the effective date of the policy. However, those prior back issues were not what ultimately led to cancellation of the trip. The trip was canceled due to the immediate necessity of surgery, the resulting surgery itself, and the insured’s status as a post-operative patient. The insured’s prior back conditions did not cause the insureds to cancel their trip, as evidenced by the insured’s active lifestyle of biking and going to the gym up to two days before his surgery, as well as the 12-day cruise the insureds took in March. Thus, based on the facts of this case, the trial court did not err in determining that the pre-existing condition exclusion was not a bar to recovery. In summary, there is competent, substantial evidence supporting the trial court’s conclusions that the insured’s sickness commenced during the policy coverage, that the sickness was unforeseeable at the time coverage was purchased, and that the sickness is not a pre-existing condition excluded from coverage. As such, we affirm. Affirmed. GROSS and FORST, JJ., concur. * * * Not final until disposition of timely-filed motion for rehearing. 11