IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-31075
Summary Calendar
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CYNTHIA POWELL GUIDRY,
Plaintiff-Appellant,
v.
THE PAUL REVERE LIFE INSURANCE COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-1579)
_________________________________________________________________
June 26, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Cynthia Powell Guidry brought this lawsuit against The Paul
Revere Life Insurance Company (“Paul Revere”) to recover benefits
under a disability income insurance policy, penalties, and
attorney’s fees. Guidry appeals the district court’s dismissal
of her claims following a jury verdict in favor of Paul Revere.
We affirm.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I. FACTS AND PROCEDURAL HISTORY
In October of 1993, Guidry bought a disability income
insurance policy from Paul Revere. Prior to obtaining the
policy, Guidry was required to fill out an application which
included questions about her medical history. Guidry’s
application was completed at her residence by Carla Wormser, an
agent acting for Paul Revere. Wormser read the questions out
loud and filled out the application based on Guidry’s responses.
Two questions on the application are important to this case.
First, question 6(c) asks “[h]ave you ever been treated for or
had any known indication of . . . [d]isease or disorder of the
stomach or intestines, liver, thyroid, bones, muscles, joints,
back or neck?” (emphasis in original). This question is answered
“no.” Next, question 7 asks “[i]n the past 5 years have you had
any medical advice or operation, physical exam, treatment,
illness, abnormality or injury not listed above?” (emphasis in
original). This question is answered “yes.” The question
continues, “[a]re you currently receiving any medical advice or
treatment?” This question is also answered “yes.”
If the applicant answers “yes” to any questions pertaining
to medical condition, question 9 then asks for detailed
explanations including exact diagnoses, dates, duration,
physicians and addresses. Guidry’s application contains detailed
information concerning 1) fibroids, endometriosis, and a total
2
hysterectomy, 2) fibrosistic disease of the left breast,
3) surgery for a deviated septum, 4) flu and sinus infection, and
5) hormone replacement. After Wormser completed the application,
Guidry was asked to read and sign the application. Guidry also
signed an authorization for the release of medical information.
Guidry contends that, in filling out the application, she
told Wormser about an incident she had in 1989 when she twisted
her low back, discussed several incidents or episodes when she
suffered from low back pain, and told her that surgery was
contemplated at one time. Guidry further asserts that after she
revealed that she had not had surgery and had been working for
the past three and one-half years without any back trouble,
Wormser indicated that she was not going to check “yes” in answer
to question 6(c). Wormser, on the other hand, testified that in
answer to question 6(c), Guidry said “no” and Wormser recorded
Guidry’s response by placing an “x” in the appropriate box on the
application.
Upon accepting the application, Paul Revere issued a policy
dated October 11, 1993, which provided for monthly disability
benefits in the amount of two thousand dollars. The policy
excluded coverage for a pre-existing condition not disclosed on
the application.
On November 29, 1994, Guidry suffered a back injury during a
work-related emergency preparedness drill. After an unsuccessful
attempt to return to work one week later, Guidry sought medical
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attention. As of the time of trial, Guidry has still been unable
to return to work.
In January of 1995, Guidry submitted a claim for disability
benefits to Paul Revere. On the section of the claim form
requesting information about similar injuries, Guidry indicated
that she had a similar injury in September of 1989. She reported
that she had a “bulging L4-5 disc” and that she had been treated
by Dr. Charles Olivier and Dr. Stephen Goldware.
Diane Kacevich, an associate claim consultant for Paul
Revere, was responsible for handling Guidry’s claim. Kacevich
obtained and reviewed medical treatment records from Dr. Olivier
and Dr. Goldware which revealed a medical history including the
following incidents. Guidry suffered her first back injury while
diving into a pool when she was approximately twelve years old.
Her next back injury occurred in 1979 when she was involved in a
motor vehicle accident. In September of 1989 she injured her low
back while attempting to remove a bicycle from a rack in her
garage. Finally, in 1990, Guidry pulled her back helping her
husband out of bed. As a result of these incidents, Guidry saw
various doctors, underwent numerous tests and treatments, and
took prescription medication. Additionally, surgery was
discussed during some of Guidry’s doctor visits. All of these
incidents occurred prior to October of 1993, yet they were not
disclosed on Guidry’s disability insurance application. After
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further investigation by Paul Revere, Guidry’s claim was denied
in April of 1995.
On August 3, 1995, Guidry filed suit in Louisiana state
court seeking to recover disability benefits, penalties, and
attorney’s fees from Paul Revere. The matter was removed to
federal court based on diversity jurisdiction. Following a
three-day trial, the jury returned special interrogatories
representing a verdict in favor of Paul Revere. Judgment in
accordance with the jury’s verdict was entered into the record on
September 16, 1996. Guidry timely appealed.
On appeal, Guidry asserts the following: 1) no substantial
evidence existed to support the jury’s findings in favor of Paul
Revere, and 2) the district court erred in changing its ruling on
the last day of trial to allow Paul Revere to assert its defense
of pre-existing condition.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
In reviewing for sufficiency of the evidence, the findings
of the jury are given great deference. “Where a question has
been submitted to a jury, the evidence is sufficient to support
the jury’s finding if -- taking all evidence and all reasonable
inferences that can be drawn from that evidence in favor of the
finding -- a reasonable person could have made such a finding.”
5
Atchison, Topeka & Santa Fe Ry. v. Sherwin-Williams Co., 963 F.2d
746, 749 (5th Cir. 1992).
B. Discussion
Paul Revere asserts that Guidry’s claim for benefits was
denied because she made a material misrepresentation with the
intent to deceive in applying for her policy and, thus, they have
no liability to her under the policy. Louisiana Revised Statute
§ 22:619 sets forth the burden that Paul Revere must carry in
order to prove this affirmative defense.
In any application for life or health and
accident insurance made in writing by the
insured, all statements therein made by the
insured shall, in the absence of fraud, be
deemed representations and not warranties.
The falsity of any such statement shall not
bar the right to recovery under the contract
unless such false statement was made with
actual intent to deceive or unless it
materially affected either the acceptance of
the risk or the hazard assumed by the
insurer.
LA. REV. STAT. ANN. § 22:619(B) (West 1995). The jurisprudence
interpreting this statute places the burden on the insurer to
prove that 1) the applicant’s statement was false, 2) the false
statement was made with the intent to deceive, and 3) the false
statement materially affected the acceptance of the risk by the
insurer or the hazard assumed. Wohlman v. Paul Revere Life Ins.
Co., 980 F.2d 283, 285 (5th Cir. 1992).
The jury found from a preponderance of the evidence that
Guidry knowingly made a false statement by failing to disclose
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information in her application. Guidry admitted at trial that
prior to the date of her application she had a medical history of
incidents involving her back and/or neck, she had seen numerous
doctors, she had an extensive record of treatment, she was
prescribed various medications, and she had periods of disability
from working due to back pain.
The jury found from a preponderance of the evidence that
Guidry made a material misrepresentation on her application with
the intent to deceive Paul Revere. Courts allow the insurer to
satisfy the burden of proving intent to deceive by showing “facts
and circumstances surrounding the application process indicating
the insured’s knowledge of the falsity of the representations
made in the application and his recognition of the materiality of
his misrepresentations or from circumstances which create a
reasonable assumption that the insured recognized the
materiality.” Wohlman, 980 F.2d at 286. Guidry admitted at
trial that she knew the information provided about her medical
history was important to Paul Revere and would provide the basis
for the policy issued. Guidry also signed the application which
served as an affirmation that she read the statements and answers
provided in the application and that they were complete and
correctly recorded. Additionally, Paul Revere brings forth
impeachment evidence to support the jury’s finding of intent to
deceive. Guidry testified that in 1989 or 1990 Dr. Olivier told
her that she would not be able to work for six to twelve months
7
if she had a lumbar fusion for her back. Guidry was then asked
if upon being told this her immediate thought was “what if I have
to end up having a fusion and I’m out of work for a year? How am
I going to afford to pay my bills?” Guidry denied that this was
her concern. Guidry then read her deposition which reflected
that this had been her reaction.
The jury found from a preponderance of the evidence that
Guidry’s material misrepresentation affected the risk assumed by
Paul Revere. “The test of materiality involves considering
whether knowledge of the facts would have influenced the insurer
in determining whether to assume the risk or in fixing the
applicable premium.” Wohlman, 980 F.2d at 286. Paul Peter, the
director of individual underwriting for Paul Revere, testified
that based on medical underwriting guidelines, if Paul Revere had
known of Guidry’s back history, it would have issued her
disability insurance policy with a full exclusion rider for the
low back. Such a policy would not have provided benefits to
Guidry had she sustained an injury or an accident to the low
back. Peter described the omitted information regarding Guidry’s
back history as “very important.”
Despite this evidence, Guidry contends that no substantial
evidence existed to support the jury’s finding that she made a
material misrepresentation with the intent to deceive Paul
Revere. In support of this contention, she offers circumstantial
evidence which she believes shows that the jury’s verdict does
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not reflect the “truth and right of the case.” Guidry asserts
that if she wanted to deceive Paul Revere, she would not have
signed an authorization for the release of medical information,
she would not have disclosed information regarding her other pre-
existing conditions on her application, and she would not have
informed Paul Revere of her pre-existing low back condition on
the claim form. Also, while Wormser had no specific recollection
of going over questions in the application, Guidry did have
specific recollections of telling Wormser about her prior back
history.
“Even though we might have reached a different conclusion if
we had been the trier of fact, we are not free to reweigh the
evidence or to re-evaluate credibility of witnesses.” Rideau v.
Parkem Indus. Servs., Inc., 917 F.2d 892, 897 (5th Cir. 1990).
Viewing the evidence and all reasonable inferences in the light
most favorable to the jury’s verdict, we find that the jury had
sufficient evidence from which to conclude that Guidry materially
misrepresented her true medical condition with the intent to
deceive Paul Revere.
Because we agree with the district court that Paul Revere
bore the requisite burden of proof under Louisiana Revised
Statute § 22:619, we also conclude that the jury had a sufficient
evidentiary basis for finding that Paul Revere had just and
reasonable grounds for denying Guidry’s claim for disability
benefits. Further, because the finding of material
9
misrepresentation with the intent to deceive bars Guidry’s
recovery under the Paul Revere disability policy, we need not
address Guidry’s contention that there was no evidence to support
a second jury finding barring recovery, that is, that Guidry’s
disability was caused by a pre-existing condition.
III. DISTRICT COURT’S CHANGED RULING
Guidry asserts that the district court committed reversible
error in changing its ruling on the last day of trial to allow
Paul Revere to assert the affirmative defense of pre-existing
condition. In pre-trial conference, the district court judge
decided that Paul Revere could not assert the affirmative defense
of pre-existing condition. On the morning of the final day of
trial, however, the district court judge determined that there
would be an interrogatory and jury instructions on the pre-
existing condition defense. Guidry believes that in order to
assert this defense, Paul Revere must meet the requirements of
Louisiana Revised Statute § 22:619. The jury instructions,
however, did not require that Paul Revere meet the burden set
forth by this statute.1 Guidry asserts that the district court
1
The jury instructions regarding the pre-existing condition
defense stated:
[t]he burden of proof is on the insurer to prove, by a
preponderance of the evidence, that plaintiff’s
disability resulted from an undisclosed pre-existing
condition as defined in the policy. Thus, it is Paul
Revere’s burden to prove the pre-existing condition was
not disclosed by plaintiff to defendant and to prove
the plaintiff’s disability resulted from a physical
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not only erred in its interpretation of the applicable law for
the pre-existing condition defense, but also violated the law of
the case doctrine in changing its ruling on the last day of trial
thereby preventing Guidry from addressing all the issues
presented at the trial in opening statements and the case in
chief. Guidry further asserts that this must have confused the
jury and caused Guidry’s counsel to lose credibility.
The law of the case doctrine states that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages of the same case.
Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1423 (5th Cir.
1995). This doctrine is a discretionary rule of practice which
does not limit the power of the court to revisit a legal issue.
Id. at 1424.
While the jury did find that Guidry’s disability was caused
by a pre-existing condition as defined by the policy, they also
found the elements necessary to establish the defense of material
misrepresentation with the intent to deceive. These elements
fulfill the requirements of Louisiana Revised Statute § 22:619,
which is what Guidry urges is necessary to uphold a pre-existing
condition defense.
condition for which, prior to the date of issue of the
policy, symptoms existed that would have caused an
ordinarily prudent person to seek diagnosis, care, or
treatment or for which medical advice or treatment was
recommended by or received from a physician.
11
Even if the jury instructions were erroneous, we will not
reverse if we determine that the challenged instruction could not
have affected the outcome of the case. FDIC v. Mijalis, 15 F.3d
1314, 1318 (5th Cir. 1994). The jury’s finding relating to the
pre-existing condition defense is irrelevant in light of the
jury’s answers to the previous interrogatories establishing
material misrepresentation with the intent to deceive thus
relieving Paul Revere of liability for Guidry’s claim for
disability benefits.
Assuming without deciding that the district court committed
error in allowing the pre-existing condition defense, it was
harmless error within the meaning of FED. R. CIV. P. 61.2 Nothing
in the record indicates jury confusion or the loss of credibility
of Guidry’s counsel as a result of the district court’s decision
to allow the additional defense on the third day of trial. The
district court’s decision to allow the defense of pre-existing
2
Rule 61 provides:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order
or in anything done or omitted by the court or by any
of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying,
or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error
of defect in the proceeding which does not affect the
substantial rights of the parties.
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condition did not affect the outcome of the case and was
therefore harmless.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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