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 necessarily
conclusive on the issue though and may be controverted by the
applicant, thus creating a genuine issue of material fact
precluding summary judgment.*fn9
However, the facts asserted in an uncontroverted affidavit will
be taken as true on summary judgment. ACMIC has submitted an
affidavit by its underwriter stating that ACMIC would have denied
insurance coverage to Mr. Berry had it known of the examination
results by Dr. Pegg. This assertion has not been directly
controverted by Mr. Berry; instead, he side-steps the issue,
submitting affidavits by employees of Dr. Goldberg and Dr. Horng,
which assert that ACMIC never requested Mr. Berry's records. Mr.
Berry thus contends that even if the names of Dr. Sawicki and Dr.
Pegg had been listed on the application, ACMIC would not have
checked these records, thereby assuming the risk of providing
coverage to him. Mr. Berry's argument suggests that the omissions
were not material because ACMIC's assumed risk would have been
made without the omitted information.
A similar argument was rejected in Commercial Life Insurance
Co. v. Lone Star Insurance Co., 727 F. Supp. 467 (N.D.Ill. 1989),
and summary judgment granted in favor of the insurance company,
where a district court found that the insurance company's failure
to check records and undertake other underwriting precautions did
not preclude it from relying on the truthfulness of the
applicant's answers and assuming a risk on the basis of these
answers. Judge Aspen wrote in Lone Star that "[t]he implicit
foundation of this argument is an assumption that Lone Star had
an obligation to take these measures . . . [and] that assumption
is incompatible with Illinois law." Id. at 470.
Summary Judgment was also granted in Small v. Prudential Life
Insurance Company, 246 Ill. App.3d 893, 617 N.E.2d 80, 186
Ill.Dec. 841 (1st Dist. 1993), where the defendant's underwriter
testified that if the omitted medical history had been disclosed,
the insurance company would not have issued the policy and the
plaintiff offered no evidence to counter this testimony. Id.,
617 N.E.2d at 83, 186 Ill.Dec. at 844.
Although there may be a question of fact regarding whether Mr.
Berry actually had MS in June of 1988, this question is not
material for purposes of the legal issue in this case, namely,
whether Mr. Berry made a material misrepresentation by omitting
from his insurance application the names of Dr. Sawicki and Dr.
Pegg and the purpose for their examinations. Although this
determination is usually made by a jury applying an objective
"reasonable person" test to the facts, the Court believes that
the uncontroverted affidavit of ACMIC's underwriter disposes of
the relevant factual question in this case, leaving the Court to
conclude that if Plaintiff cannot dispute the materiality of this
misrepresentation with appropriate expert testimony on summary
judgment, a reasonable jury could not help but find the issue of
materiality in favor of Defendant. Accordingly, summary judgment
will be ordered in favor of ACMIC.
IT IS THEREFORE ORDERED that the Motion for Summary Judgment
filed by Defendant, American Community Mutual Insurance Company
is GRANTED (# 5-1). The Clerk of the Court is directed to enter
judgment in favor of Defendant and against Plaintiff. Each party
is to bear their own costs. CASE TERMINATED.