The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Metropolitan Life Insurance ("MetLife" or "Plaintiff") brought this action against Defendant Gwendolyn Robinson ("Robinson" or "Defendant") seeking rescission of a disability insurance policy and to recover money paid under that policy claiming that Robinson fraudulently misrepresented her medical history when she applied for the policy. Now before the Court is MetLife's Motion for Summary Judgment. The Court finds that a genuine issue of material fact remains for trial as to whether the misrepresentations in Robinson's application for insurance are attributable to a MetLife agent. Accordingly, MetLife's Motion for Summary Judgment is denied.
At some point in 1996, Robinson was referred to MetLife agent Eugene Moore ("Moore") in connection with her efforts to obtain disability insurance. (Def.'s 56.1(b)(3)(C) ¶ 3; Pltf.'s 56.1 ¶ 6.)*fn1 Moore was -- and today remains -- an employee of MetLife; he has sold MetLife insurance policies since 1965. (Def.'s 56.1(b)(3)(C) ¶ 1). After meeting with Moore, Robinson signed an application for disability insurance coverage (the "Application") on June 7, 1996. MetLife issued Robinson disability insurance policy number 6 350 845 AH (the "Policy") with an effective date of July 10, 1996.
The Application sets forth answers to a number of questions seeking information related to Robinson's medical history. (Pltf.'s Exh. C). The answers set forth in the Application do not indicate that Robinson suffers from any health problems. For example, one question on the Application seeks information from the applicant regarding all instances of examination by a physician or health facility in the last five years. Id. at p.8, question 3. The response on the Application states the name of only one physician, Conrad May, M.D., indicates a date of 1995, and, under the heading "Symptoms or Ailments, or Other Reasons for Consultation, Diagnosis," states only, "check up - in good health." Id. The Application does not contain any response to a question seeking the name and address of Robinson's personal physician, practitioner, counselor, chiropractor, or health facility. Id. at p.8, question 5. The Application also reflects a response of "no" to the questions: (1) "[h]ave you EVER received treatment, attention, or advice from any physician . . .for . . . or been told by any physician . . . that you had . . . chest pain?"; (2) "[h]ave you EVER received treatment, attention, or advice from any physician . . . for . . . or been told by any physician . . . that you had [a]rthritis, disorder or deformity of the bones, muscles or joints . . . ?"; and (3) "[h]ave you EVER: . . . gone to a hospital [or] clinic . . . for observation, examination or treatment not revealed in previous questions?" Id. at p.8, question 6 and p.9, question 7. The following statements appear immediately above Robinson's signature on the Application:
I have read this application and agree that all statements and answers are true and complete to the best of my knowledge and belief. It is also agreed that:
1. The statements and answers in this application are the basis of any policy issued.
2. No information will be considered to have been given to [MetLife] unless it is stated in the application.
On August 21, 1996, Robinson signed and thereafter submitted to MetLife an amendment to the Application (the "Amendment"). (Pltf.'s 56.1 ¶ 6.) The Amendment states "I have had full recovery with no residuals from 06/96 cold, Dr. May." Id. at ¶ 10. Immediately above Robinson's signature, the Amendment further states, "To the best of my knowledge and belief, the statements and answers in the application as amended by this form are true and complete as of the date this form is signed. There are no facts or circumstances which would require a change in the answers in the application, except as shown above." Id. at ¶ 11.
The information contained in the Application does not accurately describe Robinson's medical history prior to June 7, 1996. In January 1994, Robinson was admitted to MacNeal Hospital complaining of a one-week history of severe headaches, dizziness, numbness and lower extremity weakness. Id. at ¶ 13. At that time, Robinson was examined and treated by Daniel Hirsen, M.D. ("Dr. Hirsen"), a physician specializing in rheumatology. Id. at ¶ 12, 13.
Dr. Hirsen also examined and/or treated Robinson on each of the following dates: February 15, 1994; May 15, 1994; July 14, 1994; July 26, 1994; August 23, 1994; August 31, 1995; and September 21, 1995. Id. at 14. Dr. Hirsen's notes reflect that on February 15, 1994, Robinson complained of occipital headaches, generalized stiffness and joint pain in her legs and left arm. Id. at 15. Dr. Hirsen's working diagnosis on February 15, 1994 was "a lupus-like illness." (Pltf.'s Exh. E at MLCL 00221.) Dr. Hirsen's notes reflect that on May 15, 1994, Robinson reported having increased occipital headaches in the preceding five to six days and that Robinson had resumed taking Prednisone. Id. at ¶ 16 (citing Pltf.'s Exh. E at MLCL 00219-00220). On July 14, 1994, Dr. Hirsen increased Robinson's dosage of Prednisone, noting that Robinson had reported experiencing recurrent severe headaches, anterior rib pain, and hand and wrist pain during the preceding two weeks. Id. at ¶ 17. Dr. Hirsen also noted that Robinson reported that her headaches had made it very difficult for her to function. Id. On July 26, 1994, Dr. Hirsen noted that Robinson had reported that her symptoms had led her to cut her work schedule to only two to three hours daily and he again increased her Prednisone dosage. Id. at ¶ 18. On August 23, 1994, Dr. Hirsen noted that Robinson complained primarily of knee and ankle pain and that she had begun working some full days as opposed to two to three hours per day as had been the case in July of 1994. Id. at ¶ 19. Dr. Hirsen prescribed Plaquenil and noted that Robinson would continue taking Naprosyn and Prednisone. Id.
Approximately one year later, on August 31, 1995, Dr. Hirsen noted that Robinson had reported experiencing generalized joint pain, tiredness and anterior pleuritic chest pain during the preceding three weeks. Id. at 20. On September 21, 1995, Dr. Hirsen noted that Robinson's condition had improved but that she continued to complain of pleuritic chest pain, joint pain and occasional headaches. Id. at 21.
Robinson was examined and/or treated by John Skosey, M.D. ("Dr. Skosey") on July 13, 2000. Id. at 25. On that day, Dr. Skosey drafted a letter to Robinson's treating internist, Steve Michel, M.D., describing Robinson as a patient with a history of systemic lupus erythematosus of an eight-year duration. Id. Similarly, hospital records from ...