Buy cheap gay porn.

LITARA LANGKILDE, Plaintiff,v

LITARA LANGKILDE, Plaintiff,
v.
NATIONAL WESTERN LIFE INSURANCE COMPANY and
SOUTH SEAS FINANCIAL SERVICES, INC., Defendants.
High Court of American Samoa
Trial Division
CA No. 55-01
April 30, 2002

 

[1] Court deciding motion for summary judgment must assume truth of
evidence presented by non-moving party and draw inferences from
evidence most favorable to non-moving party.
[2] Summary judgment is only appropriate when no genuine issue as to
material fact exists and moving party is entitled to judgment as matter of
law.
[3] Even if references in defendants’ letter and statement to medical
records were insufficient foundation to consider medical records as
evidence, each of these sources is evidence of contents of medical
record.
[4] As decedent represented that he did not have, or take medication for,
medical condition other than hypertension for five years preceding date
of application, and there is uncontested evidence that decedent in fact
had knowledge of another medical condition and had been medicated for
medical condition, decedent in fact misrepresented his medical condition
when he applied for life insurance.

[5] Untrue statement regarding matter materially affecting health of life
insurance applicant, made by one who knows statement is not true,
allows insurer to avoid policy.
[6] If misrepresentation causes insurer to assume risk it otherwise would
not have taken, or would not have taken at rate of premium charged,
there is legal ground for avoidance.
Before RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge.
Counsel: For Plaintiff, David P. Vargas
For Defendant, Katopau T. Ainuu
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiff Litara Langkilde is the named beneficiary of a life insurance
policy issued to deceased Marcus Langkilde (“decedent”) by defendant
National Western Life Insurance Company (“NWL”), and purchased
through defendant South Seas Financial Services, Inc. (“South Seas”).
Plaintiff submitted a claim for the insurance proceeds to NWL upon
deceased’s death. NWL denied the insurance claim because decedent
allegedly withheld information concerning his health at the time of
application—a misrepresentation that would void the policy.
Plaintiff subsequently brought suit against NWL and South Seas. NWL
and South Seas moved for summary judgment, and at the hearing on the
motion on March 11, 2002, the issue was submitted on the parties’
briefs.
Standard of Review
[1-2] A court deciding a motion for summary judgment must assume the
truth of the evidence presented by the non-moving party and draw from
the evidence the inferences most favorable to the non-moving party.
Plaza Dep’t Store, Inc. v. Duchnak, 26 A.S.R.2d 82, 83 (Trial Div.
1994); D. Gokal & Co., Ltd. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12
(Trial Div. 1989). Summary judgment is only appropriate when no
genuine issue as to any material fact exists and the moving party is
entitled to judgment as a matter of law. Plaza Dep’t Store, 26 A.S.R.2d
at 83; T.C.R.C.P. 56(c).
Discussion
Based on the legal arguments at hand, we raise two questions to decide
205
this motion. First, what did decedent represent to NWL as his medical
condition at the time of the application? Second, was this a
misrepresentation based on the evidence at hand?
A. Decedent’s Representations to NWL
In April 1999, decedent met with South Seas’ employee Afa Roberts
(“Roberts”) to fill out his application for life insurance. The application
sought information pertaining to decedent’s medical condition at that
time. This line of inquiry, according to Roberts, involved the oral
question of whether decedent had been hospitalized for any reason over
the previous five years and whether he had any illnesses. The
corresponding written questions on the application itself asked if
decedent, in the past five years, had received any diagnostic medical test,
had taken medication for any disease, or knowingly had any disease not
listed in the earlier portion of the application. Decedent’s answer to
these questions was that he suffered from high blood pressure. Decedent
then signed the application.
Plaintiff, who applied for life insurance with decedent and attended this
meeting, claims that Roberts did not ask her or decedent to review the
application before signing it. Plaintiff points out that Roberts never
specifically asked decedent if he had diabetes or heart disease. She also
does not remember Roberts specifically asking decedent if he had any
illnesses, other than those inquired about earlier in the application. In
fact, according to plaintiff, in conjunction with questions four and five of
the application, Roberts only orally asked decedent if he was taking any
medication and if decedent had been hospitalized within the previous
five years. Plaintiff claims that she had no knowledge of decedent’s
diabetes or heart condition at the time of application.
As discussed above, we must accept the evidence that sheds the best
light on the non-moving party’s case. This leaves us with the written
application, signed by both decedent and plaintiff, and Roberts’ oral
questions on whether decedent had been hospitalized in the previous five
years and whether decedent was taking any medication, to which
decedent admitted to being medicated for high blood pressure, but did
not admit to having diabetes or a heart condition.
First, we consider decedent’s oral representations. As information about
the high blood pressure medication was the only response by decedent,
even according to plaintiff’s statement, we can conclude that decedent
orally represented to Roberts that he was not taking medication for
diabetes or anything other than high blood pressure. See, e.g., Phoenix
Mut. Life Ins. Co. v. Raddin, 120 U.S. 183, 189 (1886) (where an answer

of the applicant to a direct question purports to be a complete answer to
the question, any substantial omission in the answer avoids a policy
issued on the faith of the application); Gillan v. Equitable Life Assur.
Soc., 10 N.W.2d 693, 696-97 (Neb. 1943); 46 AM. JUR. 2D Insurance §
1008 (2000). Also based on plaintiff’s statement, we can conclude that
decedent orally represented to Roberts that he was not hospitalized in the
five years previous to the date of application.
Next, we consider decedent’s written representations, made by signing
the insurance application. Questions four and five of the insurance
application demanded of decedent whether, in the past five years, he had
been given a blood or urine test, or had taken any medication for any
condition, or even had any disease or condition not indicated earlier in
the application. While the boxes for each question are marked yes, the
application indicates that decedent was treated for, and taking
medication for, hypertension. This comports with plaintiff’s oral
testimony. Accordingly, by signing the application, we can conclude
decedent made the written representation that the only disease decedent
had in the preceding five years was hypertension, and the only
medication he had taken in the past five years was for hypertension. See
Phoenix Mut., 120 U.S. at 189.
B. Decedent’s Misrepresentations
Plaintiff has not produced evidence that decedent was not diabetic or did
not have knowledge of his diabetes, only that she did not have
knowledge of his condition at the time of the application. Plaintiff also
argues that decedent was not taking medication for diabetes at the time
of the application. However, she did not claim that decedent did not take
any medication for diabetes in the preceding five years. Of course, the
burden is on the moving party to establish the facts that would cause
decedent’s representations to be misrepresentations.
NWL and South Seas point to decedent’s medical records submitted with
the motion. Plaintiff objects to the admissibility of these records for lack
of foundation, failure to authenticate, and hearsay. NWL and South Seas
also submitted their letter to plaintiff of October 19, 1999, denying
plaintiff’s claim, and the statement of NWL’s employee Al Steger
(“Steger”). Each of these submissions accuse decedent of having
concealed a busy medical history in the five years preceding application,
a medical history substantiated by the medical records submitted. This
history included treatment for diabetes and other problems, including the
prescription of diabetes medication. The letter asserts that decedent was
noncompliant with his medical regime for treatment of diabetes. The
letter also asserts decedent was referred to a medical center for cardiac

arrest.
[3] As noted above, plaintiff has not contradicted this evidence. Even if
the references in the letter and statement to the medical records were
insufficient foundation to consider the medical records as evidence, each
of these sources is evidence of the contents of the record. It is true that
we must look at the evidence in the best light possible for the nonmoving
party. However, when the moving party introduces evidence of
a set of facts and the non-moving party fails to contradict this evidence,
even with a simple statement disagreeing with their truth, it is difficult to
find a positive light for the non-moving party.
[4] As decedent represented that he did not have any medical condition
other than hypertension, and did not take medication for any medical
condition other than hypertension, for the five years preceding his date
of application, and there is uncontested evidence that decedent in fact
had knowledge of another medical condition or conditions and had been
medicated for a medical condition, decedent in fact misrepresented his
medical condition to NWL and South Seas when he applied for life
insurance.
C. Effect of Misrepresentations
[5-6] An untrue statement in regard to a matter materially affecting the
health of a life insurance applicant, made by one who knows the
statement is not true, allows the insurer to avoid the policy. See 43 AM.
JUR. 2D Insurance § 1056 (2000) (the rule is “unanimous”). Plaintiff
challenges the evidence presented by NWL and South Seas indicating
that NWL would not have issued the life insurance policy if full
information had been disclosed, apparently asserting any alleged
misrepresentation would be immaterial. However, NWL and South Seas
need not prove the policy would not have been issued at all to show
materiality. If a misrepresentation causes the insurer to assume a risk it
otherwise would not have taken, or would not have taken at the rate of
premium charged, there is a legal ground for avoidance. See Bagwell v.
Canal Ins. Co., 663 F.2d 710, 711 (6th Cir. 1981); Allstate Ins. Co. v.
Winnemore, 413 F.2d 858, 862 (5th Cir. 1969); 43 AM. JUR. 2D
Insurance § 1015 (2000). Plaintiff has not introduced any evidence to
counter Steger’s statement, and the logical assumption, that the rate of
premiums would have been different if the insurer had known decedent’s
true medical condition. To suggest the premiums would have remained
unchanged even if NWL had knowledge of decedent’s diagnosed
diabetes is absurd. Thankfully plaintiff has not made this suggestion.
Accordingly, decedent’s misrepresentations were material to the risk,
and justify avoiding the policy.
208
Order
Even when viewing the submitted evidence in the best light for
plaintiff’s case, decedent materially misrepresented the conditions of his
health when he applied for life insurance. Accordingly, NWL and South
Seas properly denied plaintiff’s claim for the insurance proceeds.
The motion of NWL and South Seas for summary judgment against
plaintiff is therefore granted.
It is so ordered.