The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Pending before the Court is Fortis Insurance Company's motion for summary judgment (Doc. 23). Zamarioni opposes the motion (Doc. 44). Based on the pleadings and the applicable case law, the Court grants Fortis Insurance Company's motion for summary judgment.
On October 21, 2004, Dennis Zamarioni filed this breach of contract suit against Fortis Insurance Company ("Fortis") in the Madison County, Illinois Circuit Court (Doc. 2). According to the complaint, Zamarioni purchased a health insurance policy from Fortis in February 2003 (Doc. 2, ¶ 3). The complaint states that in January 2004 while Zamarioni was covered by the insurance policy, Zamarioni became ill, received medical care, was hospitalized, and underwent surgery (Doc. 2, ¶ 4). Zamarioni's complaint alleges that "by reason of said illness and the medical care, treatment, hospitalization and surgical operation performed . . ., the Plaintiff became entitled under the terms and conditions of said policy, to receive a sum of money, that being, approximately, Ninety Thousand Dollars ($90,000.00) for payment of said medical care, treatment, hospitalization and surgery required to treat, cure and alleviate his medical condition." (Doc. 2, ¶ 6). The complaint also alleges that "Defendant became liable to Plaintiff for the medical expenses incurred to treat his illness in the sum of Ninety Thousand Dollars ($90,000.00), that the Defendant has made no payment, but though often requested to do so, Defendant has failed and refused and still fails and refuses to pay the balance and remainder, or any part thereof, namely Ninety Thousand Dollars ($90,000.00), to Plaintiff, for the loss and damage sustained by him as a result of said illness with interest therein from the date of said loss." (Doc. 2, ¶ 7). Zamarioni claims that the refusal to pay was vexatious and unreasonable and seeks $90,000.00 in damages as well as attorney's fees, penalties and sanctions (Doc. 2, ¶ 8).
On November 23, 2004, Fortis removed the case to this Court pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1332(a) (Doc.1). Thereafter, Zamarioni moved to remand the case which the Court denied on January 4, 2005 (Doc. 7). On December 29, 2005, Fortis filed a motion for summary judgment (Doc. 23). Specifically, Fortis argues that it is entitled to summary judgment as to both Plaintiff's complaint and its counterclaim for rescission because Zamarioni made a material misrepresentation in his application for insurance coverage in that he omitted material information regarding his medical history. On May 18, 2006, Zamarioni responded to the motion contending that Fortis applied the wrong standard in evaluating his conduct; that his innocent misrepresentation cannot serve as a basis for rescission; and that materiality of an insurance applicant's misrepresentation is a question of fact for the jury (Doc. 44). Fortis replies that it is entitled to summary judgment because the information contained in the Zamarioni's medical records concerning his heart condition, which was not reported to Fortis in the enrollment form, materially effected the Defendant's acceptance of the risk in insuring Zamarioni, as well as the hazard to be assumed by Fortis in issuing coverage to Zamarioni. The Court now turns to address the merits of the motion.
Dr. Carlos A. Suec is a board-certified cardiologist who has been practicing in that field of medicine for about 20 years. (Doc. 24; Exhibit 4, p. 9). Dr. Suec first saw Dennis Zamarioni as a patient in July 1986 and has been his cardiologist ever since that time. (Doc. 24; Exhibit 4, p. 10). Dr. Suec first saw Zamarioni as a referral from Zamarioni's family physician. (Doc. 24; Exhibit 4, ps. 11 & 12). At that time, Zamarioni complained of chest pains. (Doc. 24; Exhibit 4, p. 12). The stress test performed at that time yielded abnormal results. (Doc. 24; Exhibit 4, p. 12). Dr. Suec continued to monitor Zamarioni.
On August 11, 1993, Zamarioni saw Dr. Suec and complained of "atypical chest pain and shortness of breath." (Doc. 24; Exhibit 4, p. 15). Results of laboratory work from around this visit were characterized by Dr. Suec as "abnormal with cholesterol evaluation." (Doc. 24; Exhibit 4, p. 15). Dr. Suec informed Zamarioni of this, gave him dietary recommendations and told him to lose weight. (Doc. 24; Exhibit 4, ps. 15-16). Further, an EKG performed on that date revealed sinus rhythm and a condition known as right bundle branch block. (Doc. 24; Exhibit 4, p. 21 ). Dr. Suec described this condition as a "minor electrical irregularity of the heart that does not have any implications of morbidity or mortality." (Doc. 24; Exhibit 4, p. 21). Shortly thereafter, Zamarioni saw Dr. Suec on December 1, 1993 and he again complained of shortness of breath. Dr. Suec again recommended weight loss, exercise and medications. (Doc. 24; Exhibit 4, ps. 16 & 17). Next, Zamarioni saw Dr. Suec on June 29, 1994 and he did not have any complaints. (Doc. 24, Exhibit 4; p. 18). Thereafter, he saw Dr. Suec on July 13, 1995 and he complained of "right rib pains lasting for hours or days and occasional nausea, especially after meals." (Doc. 24; Exhibit 4, p. 19). Dr. Suec recommended that he have a gallbladder ultrasound as he may have gallbladder disease. (Doc. 24; Exhibit 4, p. 19).
On January 16, 1996, Zamarioni had another EKG. (Doc. 24; Exhibit 4, ps. 20 & 21). The EKG showed that the right bundle branch block was still present along with a condition described as "sinus rhythm and left access deviation." (Doc. 24; Exhibit 4, ps. 20-21 & 25). Dr. Suec testified that the results of these kinds of tests are usually explained to the patient in general terms but not scientific terms. (Doc. 24; Exhibit 4, p. 22).
Zamarioni then saw Dr. Suec on November 24, 1997 (Doc. 24; Exhibit 4, ps. 27-28). Again, Zamarioni complained of shortness of breath and chest pain (Doc. 24; Exhibit 4, ps. 27-28). At that time, another EKG was done. After reviewing the EKG, Dr. Suec characterized Zamarioni's condition as "chronic conductor abnormalities without implications towards his health," but not of the type that would require "medical intervention or treatment" (Doc. 24; Exhibit 4, ps. 27-28).
Zamarioni returned to see Dr. Suec on February 23, 1999. (Doc. 24; Exhibit 4, p. 28). He had a no complaints, but did have an urinary tract infection. (Doc. 24; Exhibit 4, p. 28).
Zamarioni again saw Dr. Suec on May 3, 2000. This time he complained about "bilateral high chest pains associated with anxiety or stress" and some shortness of breath. (Doc. 24; Exhibit 4, p. 29). Another EKG was done. This EKG revealed no changes from the prior EKGs. (Doc. 24; Exhibit 4, p. 29). Dr. Suec prescribed the medication ZEBETA, a beta blocker, for Zamarioni. (Doc. 24; Exhibit 4, p. 32).
Zamarioni went to see Dr. Suec on June 29, 2001 (Doc. 24; Exhibit 4, p. 32). At this time, Zamarioni was doing well. (Doc. 24; Exhibit 4, p. 32). Dr. Suec instructed Zamarioni to continue with a low cholesterol diet. (Doc. 24; Exhibit 4, p. 33). Zamarioni went to Dr. Suec on March 25, 2002. (Doc. 24; Exhibit 4, p. 33). Zamarioni did not have any complaints at this time.
On October 7, 2002, another EKG test was ordered which showed normal sinus rhythm, right bundle branch block along with a possible "inferior infarction." (Doc. 24; Exhibit 4, p. 35). Dr. Suec described the inferior ...