Phyllis J. Sivertsen v. The Guardian Life Insurance Company of America

423 F.2d 443

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 23, 1970
• Docket: 13282_1
• Status: Published

Opinions

HARVEY, District Judge.

Suit on a life insurance policy issued by The Guardian Life Insurance Company of America (Guardian) was brought in the court below by the widow of the deceased insured. Following a three-day trial, the jury returned a verdict on January 10, 1968 in favor of the widow in the amount of $20,000. Motions for a directed verdict, for judgment n. o. v. and for a new trial made by Guardian before the entry of judgment were denied by the District Judge for reasons stated in a Memorandum filed February 1, 1968. Claiming that the insured made statements in the application for the insurance policy which were materially false, Guardian thereafter filed under Rule 50(b), F.R.Civ.P., another motion for a judgment n. o. v. The trial testimony was written up and reviewed by the District Judge who subsequently filed a Memorandum Order dated December 30, 1968 concluding that he had erred in his earlier ruling and granting the insurance company’s motion.

From the setting aside of the jury verdict and the entry of judgment for Guardian, the widow now appeals. We affirm for the reason that the only reasonable conclusion that can be drawn from the evidence is that the insured made materially false statements concerning his health in filling out the application which resulted in the issuance of the policy in question.

Lt. Col. Warren S. Sivertsen, the insured, retired from the Marine Corps in 1962. In early 1965, he accepted a position with a new educational institution known as Virginia Wesleyan College. Through a friend who was an agent of Guardian, he arranged for a so-called “baby group” insurance plan for employees of the college. On August 10, 1965, Sivertsen himself filed a written application with Guardian for an individual policy of term life insurance to be issued under the plan. Included in the application were the following questions :

<<g * * *

“4. Have you consulted any physician or medical practitioner or been treated in any hospital, clinic, sanitarium or similar institution during the past five years? * * *

“C.l. Are you now ill?

“2. Have you ever had heart trouble, chest pain, high blood pressure or any other circulatory impairment, * * * or had any other * * * health impairment?”

The application further provided that if the answers to any of these questions would be “yes” then the applicant should give details “including the results of any routine physical examinations or periodic physical check-ups.” Sivertsen answered “No” to questions C.l. and C.2. and “Yes” to question B.4. The only detail supplied was information that he had consulted Dr. A. White of Virginia Beach, Va., in April of 1965 for flu. Guardian communicated with Dr. White, who was Sivertsen’s family physician, and finding no evidence of any significant health impairment or disease, issued the policy on September 15, 1965.

When the evidence as to Sivertsen’s medical history for the five years immediately preceding the filing of the application is viewed in a light most favorable to the widow, the only conclusion that can be reached is that he falsely represented material facts in answering the questions set forth hereinabove. This particular insured was a well-educated man, 48 years of age and Vice President of a newly formed college at the time that he completed the application. He had previously had many years of administrative experience as a regular officer in the United States Marines, and he himself was instrumental in arranging for the purchase by the college of the plan of which his own policy was a part. On July 19, 1965, only three weeks before he filed the application, Sivertsen had been advised by the Physical Review Council of the Navy Department that he had been found unfit to perform the duties of his rank because of physical disability and was being retired permanently with a disability rating of 20%. Included among the medical findings were the following:

“Hernia, * * * Neuralgia, * * Arthritis due to direct trauma, * * Cicatrix, * * * Hypertensive cardiovascular disease, benign, labile, * * * Tinnitus, * *

Sivertsen died on June 26, 1966. In a rating decision, ,the Veterans Administration subsequently found that the primary causes of his death were leukemia and pneumonia and that a contributing cause of his death was hypertensive cardiovascular disease, a condition which arose during Sivertsen’s period of military service.

The finding of permanent disability by the Navy Physical Review Council in 1965 was the culmination of some three years of medical examinations of Sivertsen and extensive administrative review of the degree of disability to which he was entitled on his retirement. In 1962, he was confined in a Naval Hospital for periods of 11 and 17 days respectively for pre-retirement physical examinations. An initial conclusion that he was physically fit for duty was appealed by Sivertsen to the Physical Evaluation Board of the Marine Corps which overruled the lower board and made an interim finding of a 30% disability. During the next three years, Sivertsen was examined further to determine whether his disability was temporary or permanent, including a final physical examination in May of 1965 at a Naval Hospital which led to the ultimate conclusion by the Physical Review Council that he should be permanently retired with a disability rating of 20%. Three of the reports made by examining physicians during these years mentioned the presence of hypertensive cardiovascular disease.

In answering questions in the application relating to his health, no mention whatsoever was made by Sivertsen of this extensive medical record which had so recently led to the Navy’s conclusion that he was entitled to a permanent disability rating. Sivertsen did no more than give Guardian the name of his family doctor who had treated him for flu in April of 1965 and who was not familiar with the Navy proceedings.

When questions B.4., C.1. and C.2. are considered in the light of the insured’s medical history and his permanent disability rating from the Department of the Navy, the evidence is so overwhelmingly against the widow as to leave “no room to doubt what the fact is.” Garrison v. United States, 62 F.2d 41, 42 (4th Cir. 1932); Richmond Television Corp. v. United States, 354 F.2d 410, 414 (4th Cir. 1965). Under Virginia law, which we must apply in this case, a false material representation voids an insurance policy. Hawkeye-Security Ins. Co. v. Government Emp. Ins. Co., 207 Va. 944, 154 S.E.2d 173 (1967); Chitwood v. Prudential Insurance Co. of America, 206 Va. 314, 143 S.E.2d 915 (1965). As the record permitted only one finding, we conclude that the District Court correctly set aside the jury verdict and granted Guardian’s motion for judgment n. o. v.

The appellant has filed a motion under Appellate Rule 30(b) seeking to have imposed on Guardian a portion of the costs on appeal. Our review of the joint appendix leads us to conclude that Guardian has caused matters to be included in the joint appendix unnecessarily, and we therefore direct that $485.56 of the printing costs be paid by Guardian.

Affirmed.