May 31, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2262
CARLOS DECLET,
Plaintiff, Appellant,
v.
CONFEDERATION LIFE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Arturo Aponte Pares and Peter John Porrata on brief for
appellant.
Manuel Moreda-Toledo and McConnell Valdes on brief for appellee.
Per Curiam. Having carefully reviewed the record in
this case, including the briefs of the parties, we affirm the
grant of summary judgment to defendant/appellee Confederation
Life Insurance Company of Canada.
According to the undisputed statement of facts, the
decedent made material misstatements as to the condition of
her health in her August 1992 application for reinstatement
of her life insurance policy. By the terms of the policy,
such material misstatements made the policy voidable at the
option of Confederation during the two year contestability
period, which option Confederation exercised in February
1993. Moreover, according to the clear language of the
application, no statement relative to the insured's health
could be deemed communicated to Confederation unless set out
in the evidence of insurability submitted with the
application itself. Consequently, even if appellant did
orally communicate the state of decedent's health to an agent
of Confederation in 1991, Confederation would have had no
duty to investigate, absent some evidence submitted with the
application. Since no such evidence was submitted,
Confederation was within its legal right in rescinding the
policy.1
1
Affirmed. See 1st Cir. Loc. R. 27.1.
1Appellant's claim that Confederation was reluctant to
1
provide him with all relevant discovery material was not
raised below and thus will not be heard on appeal.
-2-