Small v. Prudential Life Insurance

617 N.E.2d 80, 246 Ill. App. 3d 893, 186 Ill. Dec. 841
CourtAppellate Court of Illinois
DecidedApril 29, 1993
Docket1-92-1104
StatusPublished
Cited by11 cases

This text of 617 N.E.2d 80 (Small v. Prudential Life Insurance) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Small v. Prudential Life Insurance, 617 N.E.2d 80, 246 Ill. App. 3d 893, 186 Ill. Dec. 841 (Ill. Ct. App. 1993).

Opinion

JUSTICE CAHILL

delivered the opinion of the court:

The plaintiff, Patricia Small, beneficiary of an insurance policy on the life of her husband, Ronald Small, sued the defendant, Prudential Life Insurance Company, for failure to indemnify her when Ronald died. The defendant filed a counterclaim for rescission, alleging misrepresentations in the policy application. After a bench trial, the court found in favor of the defendant. On appeal, the plaintiff contends that the trial court’s decisions that the decedent made a misrepresentation and that the misrepresentation was material were against the manifest weight of the evidence. She also contends that the defendant did not prove that the application was attached to the policy when it was issued, as required by law, and that the court erred in admitting the application in evidence. We affirm.

The defendant issued the decedent a life insurance policy dated May 9, 1985, for $100,000. Before the policy was issued, the decedent underwent a required medical exam. On May 9, 1985, Dorothy Lang, a registered nurse employed by Vital Measurements, went to the Smalls’ home and administered the exam. She also asked them questions about Mr. Small’s medical history and wrote the responses on the application. This litigation is based on the responses recorded for three questions. On the application form, the “Yes” box was marked for the following question.

“7. Has the person examined ever:
* * *
b. been in a hospital, sanitarium or other institution for observation, rest, diagnosis or treatment?”

The “No” box was marked for the next question.

“8. Has the person examined ever been treated by a doctor for or had any known sign of:
* * *
f. nervous trouble, convulsions, epilepsy or mental disorder?”

Question 12 asks for the full details of any answer to questions 6 through 11 which was marked “yes.” In response to this question, the nurse wrote that the decedent was hospitalized in 1965 for stomach ulcers. She also included the decedent’s visits to doctors in 1965 and 1984.

In addition to the 1965 hospitalization, the decedent, in fact, had been hospitalized from January 2, 1983, to February 12, 1983, from March 27, 1983, to April 7, 1983, and from July 26, 1984, to August 18, 1984, for major depressive disorder. These three hospital stays were not disclosed on the application. At the bottom of the application is the statement, “I declare that, to the best of my knowledge and belief, the above statements are complete and true.” Below this statement is the decedent’s signature.

On November 3, 1986, Mr. Small died from cardiac arrest caused by a ruptured aneurysm. Because his death occurred within two years after the policy was issued, the defendant contested indemnity under the terms of the insurance contract. The trial court found that the decedent failed to disclose “essential facts requested in the application” and that the evidence was “overwhelming, uncontradicted and inherently persuasive that the policy would not have been issued if all the facts had been known.”

The plaintiff first argues on appeal that the court’s decision that the decedent made a misrepresentation was against the manifest weight of the evidence and that the defendant should be estopped from asserting misrepresentation. She cites Good v. National Life & Accident Insurance Co. (1976), 37 Ill. App. 3d 831, 347 N.E.2d 460, which states that when an applicant gives correct oral answers which are incorrectly recorded by the authorized agent, the insurer cannot rely on the false answers to avoid the policy. The plaintiff does not contest that the decedent was hospitalized three times for depression, but instead argues that she and the decedent told the nurse about the hospitalizations for depression and that the nurse failed to record this information. She argues further that her testimony was uncontradicted because the nurse did not testify.

The trial court found that the plaintiff suffered a “credibility gap” on this issue. The plaintiff testified at trial that she told the nurse about the decedent’s depression and the dates that he was in the hospital. But she was impeached on cross-examination with her deposition testimony. At her deposition the plaintiff was asked, “And you told [the nurse] the dates that [decedent] was at those three hospitals?” The plaintiff replied, “She didn’t ask the dates.” The plaintiff further testified at trial that she also told “Carol” about the decedent’s depression. Carol Murphy was employed by the defendant and completed the portion of the decedent’s application which did not include any medical information. Carol Murphy testified that the Smalls told her nothing about the decedent’s medical history.

We find that the evidence supports the court’s conclusion that the decedent made a misrepresentation. We are not persuaded by the plaintiff’s argument that her testimony was uncontradicted because the nurse did not testify. The plaintiff’s deposition contradicted her trial testimony. Also, the nurse was employed by an independent company which had no interest in whether the decedent’s application for insurance was accepted or denied. We are not persuaded that the nurse would include a hospital stay which occurred 20 years before the policy was issued and ignore three hospital stays which occurred within two years of the policy’s date. More importantly, the decedent swore the application contained a complete description of his medical history. Yet he affirmatively denied any history of mental disorder and omitted three hospitalizations for major depressive disorder. Even if the decedent did not read the application before he signed it, as the plaintiff argues, he nevertheless is bound by the document. Harney-Morgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 455 N.E.2d 130 (to negligently sign an unread document does not relieve the signer of the legal consequences of its contents).

Next the plaintiff maintains that4 there was insufficient evidence presented at trial to establish that the misrepresentation materially affected the defendant’s acceptance of the risk.

An insurer may refuse to pay benefits under a life insurance policy where a misrepresentation “materially affects *** the acceptance of the risk.” (Ill. Rev. Stat. 1991, ch. 73, par. 766.) Materiality is determined by whether or not reasonably careful and intelligent persons would regard the facts as stated to substantially increase the chances of the event insured against, so as to cause a rejection of the application. Materiality may be established by the testimony of the insurer’s underwriter. Garde by Garde v. Country Life Insurance Co. (1986), 147 Ill. App. 3d 1023, 498 N.E.2d 302.

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617 N.E.2d 80, 246 Ill. App. 3d 893, 186 Ill. Dec. 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-prudential-life-insurance-illappct-1993.