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09/30/88 Catherine A. Cohen, v. Washington National

September 30, 1988

CATHERINE A. COHEN, PLAINTIFF-APPELLEE

v.

WASHINGTON NATIONAL INSURANCE COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

529 N.E.2d 1065, 175 Ill. App. 3d 517, 124 Ill. Dec. 948 1988.IL.1491

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by defendant Washington National Insurance Company from a trial court's grant of summary judgment in favor of plaintiff Catherine A. Cohen. The cause arises out of a health insurance policy issued to Cohen by defendant and involves alleged misrepresentations by Cohen in applying for that policy.

The facts disclose that Cohen made an application to defendant insurer for health insurance on December 27, 1983. On the application form, Cohen marked the "No" box for the following questions.

"5. Have you . . . ever had, or been told you had, or been treated for or are now on medication for any of the following:

d. Disease of the nervous system, mental or emotional disorder, dizziness, loss of consciousness, convulsions or epilepsy?

6. Have you . . . during the past years, had a physical check up or consulted any physician or practitioner for any reason not previously mentioned, or been to or in a clinic, hospital or sanitarium for observation, operation, or treatment?"

Cohen admits that she reviewed and signed the application. Prior to signing, Cohen had, in fact, had over 130 professional sessions with a psychologist, Dr. Ann Cohn. Cohen saw the psychologist approximately twice a week between July 1981 and April 1983. Dr. Cohn diagnosed Cohen as having a depressive neurosis dysthemic disorder, i.e., DSM III 300.40 as established by the American Psychiatric Association. The record contains no evidence that Cohen was aware of Dr. Cohn's diagnosis.

On November 8, 1984, Cohen was admitted to the Institute of Psychiatry at Northwestern Memorial Hospital and, upon admittance, was diagnosed as suffering from DSM III 300.40 by a hospital therapist. Cohen was discharged from the hospital on February 25, 1985, and eventually filed a claim with the insurer to cover her hospitalization costs and subsequent out-patient treatment. After an investigation, the insurer determined that Cohen was treated by the hospital for the same mental condition for which she had seen Dr. Cohn. Defendant then sent a letter to Cohen on April 2, 1985, declaring the policy void for the material misstatements made on her application, which misstatements, if known, would have resulted in the insurer's refusal to issue a policy to Cohen.

Cohen then filed suit for a declaratory judgment. Defendant insurer filed a counterclaim for rescission based on the material misstatements in Cohen's application and both parties then filed cross motions for summary judgment, which were denied by the trial court. After granting a rehearing, the court granted Cohen's motion for summary judgment on the basis that, as a matter of law, the insurer had a duty to pose its questions and inquiries in a more specific fashion. The court concluded that the word "practitioner" as used in the insurer's application was ambiguous and did not include the term "psychologist" in its meaning. This appeal by the defendant insurer followed.

Defendant contends that Cohen's application did contain misrepresentations because the phrasing of questions 5 and 6 required her to reveal her visits to a psychologist and, further, that the court's finding that a psychologist is not a "practitioner" within the context of question 6 is contrary to Illinois law. Defendant also asserts that it proved that the ...


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