Stone v. Paul Revere Insurance

• Court: District Court, D. New Hampshire
• Decided: September 10, 1999
• Docket: CV-98-659
• Status: Published

Opinion

Stone v . Paul Revere Insurance CV-98-659 09/10/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David M . Stone, Plaintiff

v. Civil N o . 98-659-M

Paul Revere Life Insurance Company, Defendant

O R D E R

Plaintiff’s motion for summary judgment is denied, without

prejudice, because it is inadequately supported and fails to

establish either that there is no genuine dispute as to any

material fact or that he is entitled to judgment as a matter of

law.

Plaintiff’s motion and supporting memorandum raises, but

skirts, some fairly complex legal issues. See, e.g., Golden Rule

Ins. C o . v . Hartwell, N o . 94-332-M, 1995 U.S. Dist. LEXIS 10350 (D.N.H. July 1 7 , 1995) (discussing the interplay between N.H.

Rev. Stat. Ann. (“RSA”) 415:6 and 415:9 and summarizing the

circumstances under which an insurer may ordinarily rescind a

policy based upon mistatements contained in the insurance

application). By not acknowledging some, and treating others

rather superficially, the motion fails to persuade. The

following difficulties are noted, just in passing. First, and perhaps most importantly, the insurance policy

plaintiff seeks to enforce has not been provided. The “Outline

of Coverage” on which plaintiff seems to rely to establish the

policy’s terms specifically recites: “This is not the insurance

contract and only the actual policy provisions will control.”

Next, plaintiff seems to argue that defendant has denied

benefits “because of a disease or condition that existed before

the policy went into force,” Plaintiff’s Memorandum of Law at 6.

Defendant, on the other hand, says it terminated benefits not due

to a preexisting condition but due to fraudulent

misrepresentations entitling it to rescind. Thus, defendant

seeks to void the policy (and recover benefits previously paid),

rather than merely deny plaintiff’s continuing request for

benefits under that policy. It is not clear whether plaintiff

denies that he made material fraudulent misrepresentations, o r ,

concedes that there were fraudulent misrepresentations, but

claims fraud cannot serve as a basis for rescinding the policy

under New Hampshire law.

Additionally, there is no indication that, as required by

statute, the New Hampshire Insurance Commissioner approved

inclusion in the policy at issue incontestability language that

is (apparently) different from that required by RSA 415:6,I, nor

2 does either party’s memorandum address the effect, if any, of

failure to obtain approval (if it was indeed not obtained).

And, finally, plaintiff’s invocation of the limitations bar

to defendant’s counterclaim, and defendant’s response, raise

apparent issues of disputed material fact related to the

discovery rule (e.g., fraudulent concealment, reasonable

diligence, reasonable reliance), which obviously precludes

plaintiff from prevailing on his motion for summary judgment on

defendant’s counterclaim.

Should plaintiff decide to refile at some point, counsel

should at least submit the policy. It might also be helpful to

more clearly identify the uncontested material facts relied upon,

and more fully develop plaintiff’s legal argument in light of

applicable New Hampshire law.

The motion for summary judgment (document n o . 13) is denied

without prejudice.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 1 0 , 1999

cc: Peter N . Tamposi, Esq. Lisa S . Wade, Esq.