Useldinger v. Old Republic Life Insurance Co.

NIERENGARTEN, Judge,

dissenting:

I respectfully dissent. The trial court erred in summarily finding that the decedent willfully misrepresented his medical history on an application for life insurance where factual questions exist as to whether the decedent had full knowledge of his physical condition when the insurance form was completed.

In Howard v. Aid Association for Lutherans, 272 N.W.2d 910 (Minn.1978) the supreme court cited with approval the standard used to determine whether an insured has willfully misrepresented his physical condition on a life insurance application. Crucial to the standard is the requirement that an insured have full knowledge of his condition at the time of the application. The Howard court stated:

[T]he question should not be whether or not the applicant was afflicted with a particular disease, but whether at the time of application “facts of which the insured had full knowledge were concealed from the insurer * * * and were of such probative force as in all reasonable probability, if brought to the knowledge of the company, would have precluded the issuance of the policy.”

Howard, 272 N.W.2d at 913 (quoting Metropolitan Life Insurance v. Samis, 172 Md. 517, 192 A. 335 (1937)) (emphasis supplied).

The decedent-insured gave negative responses to two questions included in the application for life insurance: (1) Have you ever been told you have high blood pressure?; and (2) Have you ever had any serious illness or disorder? The information possessed by Useldinger at the time he completed the application creates genuine fact issues as to whether his denials intentionally concealed facts which, if known to the insurer, would have precluded the issuance of the policy.

A material fact issue arises concerning whether Useldinger had full knowledge of his high blood pressure. The majority notes in its opinion that each of decedent’s four visitations with Dr. Ryan in 1981-82 resulted in identification of a blood pressure problem. Although diagnosed as having high blood pressure Dr. Ryan never used the term when explaining the condition to Useldinger. Instead he chose to advise Useldinger that he had hypertension, a term which many patients would not *38readily associate with high blood pressure.1 Nor, as the majority reasons, would treatment of his condition necessarily alert Usel-dinger to the fact he had high blood pressure. Dr. Ryan himself admitted at his deposition that regulation of salt intake does not always indicate a high blood pressure problem.

A material fact issue also arises concerning whether Useldinger had full knowledge that his alcoholism and related problems constituted a serious illness or disorder. The majority relies solely on the deposition testimony of Dr. Ryan who stated he consistently warned Useldinger to discontinue use of alcohol. At no time, however, did Dr. Ryan advise Useldinger of the seriousness of his condition or the ultimate consequences to his health if he did not do so. In fact, at Dr. Ryan’s examination of Usel-dinger on October 29, 1981 he suggested a “long-term” treatment program to deal with his condition. Useldinger could well have concluded, given this advice, that his illness was not serious in nature if treatment were possible over a long period of time.

I would reverse the trial court’s grant of summary judgment in favor of the insurer. Factual issues exist as to whether the insured willfully misrepresented his physical condition to the insurer when he completed his application.

. The trial court ruled and the majority agreed that the deposition testimony of Dr. Ronish who examined Useldinger one month after the life insurance application was completed was irrelevant since his findings had no bearing on whether Useldinger wilfully misrepresented his physical condition to respondent. Although the results of his examination may be irrelevant, Dr. Ronish's observations concerning a layman’s understanding of the correlation between high blood pressure and hypertension is certainly relevant to the issue of Useldinger’s alleged misrepresentation. I would allow the deposition of Dr. Ronish for this limited purpose.