MASSACHUSETTS CASUALTY INSURANCE COMPANY, a Massachusetts Corporation, Plaintiff-Appellant, v. Kenneth B. FORMAN, Defendant-Appellee

MASSACHUSETTS CASUALTY INSURANCE COMPANY, a Massachusetts Corporation, Plaintiff-Appellant, v. Kenneth B. FORMAN, Defendant-Appellee. No. 74-1504. United States Court of Appeals, Fifth Circuit. Nov. 14, 1975. L. J. Cushman, S. E. Cushman, Miami, Fla., Richard H. M. Swann, Coral Gables, Fla., for plaintiff-appellant. Burton Young, Albert G. Caruana, North Miami Beach, Fla., for defendantappellee. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion 7-25, 1975, 5 Cir., 1975, 516 F.2d 425). Before TUTTLE, GODBOLD and MORGAN, Circuit Judges. [MAJORITY — PER CURIAM:] PER CURIAM: Neither Continental Casualty Co. v. Gold, 194 So.2d 272 (Fla., 1967), nor Con tinental Casualty Co. v. Fooden, 293 So.2d 758 (Fla.App., 1974), requires that we affirm the trial court. In neither of those cases was there evidence, such as there is in the present case, that before the effective date of the policy the insured’s condition, by reason of its disabling consequences, was a “sickness” as opposed to a mere “symptom” or a “disease.” The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is denied.