FILED
NOT FOR PUBLICATION JUL 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MAJIMAN HAFIZ; ASHARFUN NISHA No. 08-17398
HAFIZ,
D.C. No. 3:07-cv-02114-PJH
Plaintiffs - Appellants,
v. MEMORANDUM *
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted June 16, 2010
San Francisco, California
Before: RYMER and FISHER and RIPPLE, Circuit Judges.**
Plaintiffs Majiman Hafiz and Asharfun Nisha Hafiz appeal the district
court's summary judgment in favor of defendant Metropolitan Life Insurance
Company (MetLife). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for
the Seventh Circuit, sitting by designation.
Under California law, 'a material misrepresentation or concealment in an
insurance application, whether intentional or unintentional, entitles the insurer to
rescind the insurance policy ab initio.' West Coast Life Ins. Co. v. Ward, 33 Cal.
Rptr. 3d 319, 323 (Ct. App. 2005); see also Cal. Ins. Code y 331. Here, plaintiffs
have failed to create a triable issue as to whether the insured, Ramdulari Sewaµ,
misrepresented her property ownership, as reflected in her listed net worth and the
stated purpose for the life insurance policies. They have provided no authority that
misunderstandings based on cultural differences should negate those
misrepresentations, nor have they shown that MetLife waived its right to the
correct information. See Cal. Ins. Code y 336 ('The right to information of
material facts may be waived, either (a) by the terms of insurance or (b) by neglect
to maµe inquiries as to such facts, where they are distinctly implied in other facts
of which information is communicated.').
Plaintiffs have also failed to create a triable issue as to whether Sewaµ's
misrepresentations were material. The declaration of MetLife's underwriter was
uncontradicted, see Wilson v. W. Nat'l Life Ins. Co., 235 Cal. App. 3d 981, 995-96
(Ct. App. 1991), and plaintiffs do not challenge materiality on appeal. In any
event, although the insurance application did not require applicants to list the
relevant properties and mortgage amounts, it did request information about net
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worth and income. Thus, Sewaµ's misstated net worth was material as a matter of
law. See Thompson v. Occidental Life Ins. Co. of Cal., 9 Cal. 3d 904, 916 (1973)
('The fact that the insurer has demanded answers to specific questions in an
application for insurance is in itself usually sufficient to establish materiality as a
matter of law.').
AFFIRMED.
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FILED
Hafiz v. Metropolitan Life Insurance Company JUL 30 2010
No. 08-17398 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
FISHER, Circuit Judge, concurring:
Metropolitan Life Insurance Company (MetLife) has not persuasively shown
that the insurance agreements at issue were for mortgage protection rather than
standard life insurance policies. The only indication that they were of the former
type is a handwritten statement by the sales agent in the application's Additional
Information section, explaining that the purpose of the insurance was to pay off
outstanding mortgage balances on unidentified properties currently owned by the
insured and to be inherited by the beneficiaries of the policies. Notably, the
benefits to be paid upon the death of the insured are not actually linµed to
outstanding mortgage balances, so it is unclear why the beneficiaries' intentions
for the funds mattered from the insurer's point of view. Although MetLife now
says that it would not have issued the policies if not for Sewaµ's
misrepresentations of her property ownership and outstanding mortgage balances,
it did not actually request any of that information in the application itself. The
information came in only indirectly (and incompletely) through the agent's
handwritten statements and the questions regarding the applicant's income and net
worth.
Given my uncertainty about the true nature of the policies, I am sµeptical
that MetLife's decision to insure actually depended on this financial information,
as opposed to the extensive details about Sewaµ's health and other risµ indicators
specifically sought in the application. Nor did the post-hoc rationale by MetLife's
underwriter clarify how the incorrect information affected MetLife's decision. Her
declaration provided only a conclusory assessment, without attempting to
substantiate it by reference to MetLife's general practices with respect to mortgage
protection policies. Under California law, a court may 'inquire into the nature of
the information withheld, and the liµely practice of the insurance company had the
concealed facts been truthfully disclosed.' Old Line Life Ins. Co. v. Superior
Court, 229 Cal. App. 3d 1600, 1604 (Ct. App. 1991). MetLife's failure to provide
evidence explaining - rather than merely asserting - its 'liµely practice' maµes this
a close case.
Ultimately, I concur in the decision to affirm because plaintiffs have failed
to create a triable issue on materiality. Their briefs on appeal do not clearly contest
this issue, and they presented no evidence to the district court to contradict the
MetLife underwriter's conclusions. Thus, despite my sµepticism, I agree with the
majority that summary judgment was proper on this record.
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