The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Tina Ward-Kelley is the primary beneficiary of her husband's life
insurance policy. Larrue Kelley purchased the policy in 1999 from Fortis
Insurance Company ("Fortis"). On February 16, 2000, Mr. Kelley was killed
in an accident. Ms. Ward-Kelley made a claim on the policy, which Fortis
denied on the grounds that Mr. Kelley misrepresented his weight and
medical history during the application process. The insurance application
form, which Mr. Kelley signed on March 8, 1999, stated that Mr. Kelley
was five feet nine inches tall and weighed 240 pounds. The form further
stated that Mr. Kelley had not had a physical examination, had any
medical treatment, or taken any medications during the preceding five
years, nor had he lost more than 15 pounds during the previous 10 years.
It is uncontested that Mr. Kelley in fact sought treatment from a Dr.
Aldover at a diet clinic between September 11, 1997 and December 24,
1998, during which time his weight fluctuated between 319 and 336
pounds. He was also taking the drug phentermine to help control his
weight. According to his autopsy report, at the time of his death, Mr.
Kelley weighed 335 lbs. Ms. Ward-Kelley sued Fortis for breach of
contract in the Circuit Court of Cook County, and the defendant removed
the case. Fortis now moves for summary judgment.
In Illinois, a life insurance policy is void if the insured made
misrepresentations that materially affect the risk undertaken by the
insurer. Federal Kemper Life Assur. Co. v. Eichwedel, 639 N.B.2d 246, 251
(Ill.App. Ct. 1984) Portis asserts that it would not have issued a policy
to Mr. Kelley on the stated terms had it had complete and honest
information regarding his physical condition, and that it should
therefore be excused from performance on the policy. Grant Aff. at
Paragraph 8. Ms. Ward-Kelley counters that all information on the
insurance application was either accurate, immaterial, or not
attributable to Mr. Kelley, as the form was actually filled out by
In deciding a motion for summary judgment, I evaluate the facts in the
light most favorable to the nonmoving party. Popovits v. Circuit City
Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). Even applying this
standard, I find that no genuine issues of material fact exist. Whether
Mr. Kelley or Fortis' agent actually wrote Mr. Kelley's weight on the
insurance form is irrelevant; an insured is bound by the representations
on a form he signs. Small v. Prudential Life Ins. Co., 617 N.E.2d 80, 83
(Ill.App. Ct. 1993). Ms. Ward-Kelley does not dispute the authenticity of
Mr. Kelley's signature. Thus, Mr. Kelley represented that his weight was
240 pounds at the time he applied for life insurance,
Ms. Ward-Kelley argues that Mr. Kelley might actually have weighed 240
pounds at that time. If Mr. Kelley weighed 240 pounds on March 8, 1999,
then he would have lost at least 79 pounds in the 74 days since December
24, 1998. Such a drastic and sudden loss is not plausible. However, even
if such a loss did take place, Mr. Kelley's statement that he had not
lost more than 15 pounds during the preceding five years would have been
Mr. Kelley misrepresented his weight and his medical history on his
insurance application. The only question that remains is whether these
misrepresentations were material. A misrepresentation is material if
"reasonably careful and intelligent persons would regard the facts as
stated to substantially increase the chances of the event insured
against, so as to cause rejection of the application." Methodist Med.
Ctr. of Ill. v. Am. Med. Sec. Inc., 38 F.3d 316, 320 (7th Cir. 1994),
quoting Small, 617 N.E.2d at 896, 897. Materiality is ordinarily a
question of fact, but "where the misrepresentation is of such a nature
that all would agree that it is or is not material, the question is
appropriate for summary judgment." Garde v. Country Life Ins. Co., 498
N.B.2d 302, 308 (Ill.App. Ct. 1986). Misrepresentations which have been
held to meet this standard include an applicant's failure to disclose
existing life insurance policies, id. at 309, prior hospitalizations for
depression, Small, 617 N.E.2d at 83, a prior hospitalization for
"palpitation and apprehension," Hatch v. Woodmen Accident & Life Co.,
409 N.E.2d 540, 543 (Ill.App. Ct. 1980), and a prior diagnosis of silent
myocardial eschemia, a heart condition, Methodist Med. Ctr. of Ill., 38
F.3d at 321.
Any reasonable person would agree that a life insurer assumes a
substantially greater risk by insuring a five-foot-nine, 319-pound
applicant than by insuring a five-foot-nine, 240-pound applicant. Thus,
Mr. Kelley's misrepresentation of his weight was material, and summary
judgment in favor of Fortis is appropriate.
Therefore, the defendant's motion for summary judgment is GRANTED.
© 1992-2003 VersusLaw ...