The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is a Motion for Summary Judgment filed by
Defendant, American Community Mutual Insurance Company (# 5-1)
("ACMIC"), seeking a determination that Plaintiff, Thomas C.
Berry ("Mr. Berry"), made a material misrepresentation on an
insurance application which nullifies his policy under the
Illinois Insurance Code, 215 ILCS 5/154 (1992). For the reasons
set forth below, the motion is granted.
On March 17, 1992, Thomas and Diana Berry signed an application
for group health insurance with American Community Mutual
Insurance Company. The ACMIC insurance application requires the
applicant to disclose examinations, advice, and treatment
received during the previous ten years. In response to this
request for disclosure, Mark Miller, Mr. Berry's agent,
acknowledged that Mr. Berry suffered from stomach problems for
which he had taken several medications and sought the advice of
three attending physicians: Dr. Goldberg, Dr. Hourng (sic), and
However, Mr. Berry, through his agent, failed to disclose that
in April and June of 1988 he had sought the advice, examination,
and treatment of Dr. Sawicki,*fn1 an internist, and Dr. Edward
W. Pegg III, a specialist in neurology, for symptoms of pain and
numbness in the left leg, left flank, and left side of his chest
which he had been experiencing for five to six weeks. The results
of these examinations are recorded in examination notes and by
the uncontroverted deposition testimony of Dr. Pegg which
In a letter to Dr. Sawicki dated April 14, 1988, Dr. Pegg
reported that his examination revealed that the numbness and pain
experienced by Mr. Berry on the left side of his body were
consistent with hyperalgesia*fn2 and a lesion, noting that other
symptoms associated with the onset of multiple sclerosis ("MS")
such as blurred vision, were not present. The letter concluded by
recommending further evaluation. On April 16, 1988, Dr. Pegg
advised Mr. Berry that his resolving symptoms were consistent
with the possibility
of MS or some type of collagen vascular process,*fn3 recording
these statements in his notes.*fn4 On June 15, 1988, Mr. Berry's
symptoms had completely resolved.*fn5 Although Dr. Pegg noted
that he was suspicious of a demyelinating disorder,*fn6 he made
no diagnosis at that time. Further observation was planned, but
Mr. Berry did not keep the next two scheduled appointments and
the examinations were discontinued.
On July 21, 1992, Mr. Berry again sought advice and treatment
from Dr. Pegg. On that occasion, Mr. Berry presented blurred
vision in the right eye. Dr. Pegg referred Mr. Berry to an
ophthalmologist, Dr. Kasbeer, but concluded that Mr. Berry "was
showing signs that would support the diagnosis of MS which
warranted further examination."
The Illinois Insurance Code provides that a misrepresentation
made by an insured in the negotiation for a policy of insurance
shall defeat or avoid the policy where the misrepresentation was
made with actual intent to deceive or materially affects either
the acceptance of the risk or the hazard assumed by the insurance
company. 215 ILCS 5/154 (1993). A misrepresentation is defined as
"a statement of something as a fact which is untrue and affects
the risk taken by the insurer."*fn7 Northern Life Insurance Co.
v. Ippolito Real Estate Partnership, 234 Ill. App.3d 792,
601 N.E.2d 773, 176 Ill.Dec. 75 (1st Dist. 1992).
Materiality, like probable cause, is ordinarily a question of
fact reserved for the jury because its determination requires an
assessment of whether "reasonably careful and intelligent persons
would have regarded the facts stated as substantially increasing
the chances of the events insured against, so as to cause a
rejection of the application." Northern Life Insurance Co., 601
N.E.2d at 779, 176 Ill.Dec. at 81. Summary Judgment is
appropriate, however, "where the misrepresentation is of such a
nature that there can be no dispute as to its materiality."
Commercial Life Insurance Co. v. Lone Star Insurance Co. et
al., 727 F. Supp. 467 (N.D.Ill. 1989).
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
By its very terms, this standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there is no genuine issue of
As to materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.
As to genuine issue, summary judgment will not lie if the
dispute about a material fact is "genuine," that is, if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As stated in
Anderson, "at the summary judgment stage the judge's function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial." When a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing
that there is a genuine issue for trial. There is no issue for
trial unless there is sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not significantly probative,
or is no more than a scintilla, a summary judgment may be
Contrary to Plaintiff's assertion, no genuine issue of fact
exists with respect to the question of materiality in this case,
because Plaintiff has failed to meet ACMIC's affidavit on this
issue.*fn8 The case law indicates that "[t]he materiality of a
misrepresentation may be established by the underwriter's
testimony." Garde by Garde v. Country Life Insurance Co.,
147 Ill. App.3d 1023, 498 N.E.2d 302, 101 Ill.Dec. 120 (4th Dist.
1986); Commercial Life Insurance Co., 727 F. Supp. at 469
(N.D.Ill. 1989). The underwriter's opinion is not ...