There is no evidence that the decedent did not smoke marijuana and was not currently using it at the time he completed the applications. By his own statements made at the time when his health was endangered, he stated that he was a regular and current user of marijuana. Moreover, at the time he gave that history to the doctor, he had every reason to be truthful since his life was at stake. The doctor had noted that, at that time, the decedent was "a very critically ill individual." Kaufman Dep. at 18. In addition, it is significant that at the time he entered the hospital, his medical complaint was a pulmonary abscess. Obviously, smoking might relate to a lung problem and the decedent had never smoked cigarettes on a regular basis. Under these circumstances, it seems most reasonable that the decedent would have advised his treating physician of anything which might have caused the lung abscess. Finally, in this regard, it is noted that Dr. Kaufman was concerned that the lung damage might have been caused by marijuana which had been sprayed with paraquat. Id. at 20.
It is therefore clear that the decedent had used and was using marijuana on September 16, 1977 and on June 3, 1978. His answers in the applications denying such use were false.
The determination that the statements made by decedent in applying for insurance and later for reinstatement were false is not dispositive of the issue before the Court. As the statute provides, a false statement must be made to deceive, or must relate to a material matter.
Here, the only conclusion which can be drawn from the undisputed facts is that the decedent made the false statements with intent to deceive the insurer. Certainly, he did not forget that he smoked marijuana. This is established by the fact that he questioned the agent about what was meant by "regular" use and "current" use. See Washington Dep. at 9-10. He later advised his treating physicians that he had smoked up to "six joints a day" and heavier on the weekends. He told his doctors three days after he signed the application for reinstatement that he was smoking marijuana, currently and regularly. Finally he told Dr. Kaufman that he had been smoking for two to three years. Those statements made to his treating physicians are admissible in evidence. See Fed. R. Evid. 803(3), (4), and (6); 804(b)(3). His answers in the applications were "false and misleading and related to a matter about which the insured could not reasonably have been mistaken." Kavakos v. Equitable Life Assurance Society, 66 App. D.C. 380, 88 F.2d 762 (1936). See also Metropolitan Life Insurance Company v. Adams, 37 A.2d 345, 350 (D.C. Mun. App. 1944) (insured's answer so inherently improbable and contrary to human experience as to make it false in fact and as a matter of law and was made with intent to deceive).
The Court concludes that the false statements were made with the intent to deceive the insurer into issuing a policy of insurance on the decedent's life. For this reason the insurer is entitled to judgment as a matter of law.
The false statement related to a material matter. The test of materiality, as that term is used in the statute is "whether the representation would reasonably influence the insurer's decision as to whether it should insure the applicant." Jannenga v. Nationwide Life Insurance Company, 109 U.S. App. D.C. 385, 388, 288 F.2d 169, 172 (1961). See also Prudential Insurance Company of America v. Saxe, 77 U.S. App. D.C. 144, 153, 134 F.2d 16, 25, cert. denied 319 U.S. 745, 63 S. Ct. 1033, 87 L. Ed. 1701 (1943); Jones v. Prudential Insurance Company of America, 388 A.2d 476 (D.C. App. 1978); Westhoven v. New England Life Insurance Co., 384 A.2d 36 (D.C. App. 1978); Hill v. Prudential Insurance Company, supra.
The law prior to the enactment of Section 35-414, focused, not upon whether the applicant was attempting to mislead the insurer or whether the statement might have led the insurer to accept a risk it might not have taken had it known the truth, but rather upon the misrepresentation itself. Any misrepresentation in the application, no matter how innocent or immaterial, was sufficient to allow the insurer to avoid the contract. The statute is designed to avoid such a harsh result. Thus it requires an intent to deceive or a material misrepresentation. But it seems clear that the statute, like the prior law, focuses on the misrepresentation itself, and if the insurer can establish the essential elements set forth in the statute, it can avoid the contract. For example, the fact that the insurer may or may not have insured others who used marijuana is immaterial.
Stated differently, if the applicant's false statement concerns a matter which would reasonably cause the insurer to consider, either not issuing the policy because of increased risk, or issuing the policy with an increased premium, the insurer need not prove anything else. The record in this case supports the conclusion that under the facts of this case, the insurer either would not have issued the policy had it known the truth, or it would have requested a higher premium. The fact the decedent did not die from the use of marijuana is immaterial. Jones v. Prudential Insurance Company of America, supra.
In sum, the Court concludes that the policy of insurance was in a lapsed status at the time the decedent entered the hospital, and that the decedent had an obligation to advise the insurer of his changed circumstances. Even assuming, that the policy had not lapsed, the statements made by the decedent were false and were made to deceive the insurer. Moreover, the statements related to a material matter which affected the risk undertaken by the insurer. Based upon the above determinations, the defendant is entitled to judgment as a matter of law. In view of the above, defendant's motion for summary judgment is granted.
An appropriate Order has issued.
© 1992-2004 VersusLaw Inc.