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May 31, 1994


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 Dr. Willey.

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 follows.

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 material fact.

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 granted.

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 ...

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