this Court held that an omitted medical condition was material where the insurer offered similar proof that it would have denied the application if the medical history had been disclosed.
Plaintiff challenges the materiality element on the ground that, contrary to the death certificate, Jenson did not die of alcohol-related causes, and the omissions on her application must therefore be immaterial. There is no need to reach the evidentiary issues as to the cause of Jenson's death. It is well-settled under District of Columbia law that material false statements need not be related to the cause of death in order to void the policy. E.g., Johnson v. Prudential Ins. Co., 589 F. Supp. 30, 35 (D. D.C. 1983), aff'd, 240 U.S. App. D.C. 254, 744 F.2d 878 (D.C. Cir. 1984); Jones v. Prudential Ins. Co., 388 A.2d 476 (D.C. 1978).
Turning to estoppel, the best case that can be made for Hood is as follows.
Hood has offered an affidavit attesting that it is a common insurance industry practice for salespersons to ask the application questions orally, and to mark the answers for the proposed insured. Prudential conceded this point at oral argument. If it was Agarwal, and not Jenson, who inserted the false answers on the application, and if Jenson signed the application ignorant of the misrepresentations it contained, then there is some basis in District of Columbia law for an equitable estoppel binding Prudential to the actions of Agarwal, its putative agent,
and barring it from raising the statutory defense. Metropolitan Life, 363 A.2d at 988; Blair v. Prudential Ins. Co., 153 U.S. App. D.C. 281, 472 F.2d 1356, 1359-63 (D.C. Cir. 1972).
District of Columbia case law on this question is not crystal-clear and, if anything, is probably more hostile to equitable estoppel than is being assumed here.
Nonetheless, at the very least the case law indicates that Hood must establish two things in order to prevail on an estoppel theory: that Agarwal filled in the false answers knowing them to be false, and that Jenson signed the application ignorant of the fact that false answers were being or had been inserted by Agarwal.
If Jenson signed the application aware that it did or would contain false answers, there would be no basis to estop Prudential from challenging the policy.
If a showing of Agarwal's involvement in the deception alone created an estoppel, it is possible that summary judgment for Prudential would be inappropriate, for Hood's affidavit of industry practice might be sufficient to warrant a trial on the issue of whether Agarwal filled in the false answers.
But to establish an estoppel, the party asserting the estoppel is required to prove each element. Hood points to no facts from which a reasonable jury could conclude that, assuming Agarwal wrote the answers, Jenson was unaware that the application she herself signed contained such false answers. At a minimum, in order to survive a motion for summary judgment, Hood would have to offer evidence to show that Jenson did not read the application after it was completed.
Again, no such evidence has been offered.
The plaintiff's burden to produce credible evidence must be met at the summary judgment stage, and speculation about potential evidence at trial would not carry that burden. See Celotex, supra. It is worth noting, however, that there is no reason to suppose that additional evidence on this issue would be available at trial. At oral argument, plaintiff's only suggestion of possible further evidence to support his contentions was that Agarwal, who so far has avoided service of the third-party complaint naming him as a defendant in this case, might appear in time to testify at trial. It was suggested that Agarwal may have fled the country, but in any event, there is little reason to believe that he would appear at trial, and no reason to think he has any interest in exculpating Jenson, thereby inculpating himself. Accordingly, summary judgment is GRANTED on Count I of the amended complaint.
B. Counts II and III
Prudential's motion for summary judgment sought dismissal of the entire complaint. The discussion in the motion, however, was directed toward the policy claim in Count I, with little or no mention of Counts II and III, the "misrepresentation" and "agency" claims. Hood's response similarly did not address Counts II or III or assert that they represented independent claims or barred summary judgment on the entire complaint. Nevertheless, out of an abundance of caution, the Court at oral argument questioned Hood's counsel as to whether Counts II and III were intended as independent claims and, if so, how each stated a cause of action.
At argument, Hood's counsel conceded that Count III does not comprise an independent cause of action. Indeed, it is clear that Count III on its face merely alleges facts that might relate to the claim made in Count I.
Accordingly, Count III must be dismissed for failure to state a claim on which relief can be granted.
It was not clear to the Court at oral argument that plaintiff was prepared to make a similar concession as to Count II and, accordingly, the misrepresentation claim must be addressed on its merits. Count II asserts in substance that Agarwal made misrepresentations to Jenson and knew the application to be false;
earlier paragraphs of the complaint make evident that the misrepresentations charged are that Agarwal knew that he was unable to write Prudential policies for District of Columbia residents but nevertheless misrepresented to Jenson that he could write a policy for Jenson using Agarwal's own address in Maryland. Amended complaint paras. 10-12. The application was false, by this theory, because the application shows the application to have been written in Lanham, Maryland, whereas the policy was actually written in the District of Columbia. Id. P 13.
There are two possible ways of viewing these assertions incorporated by Count II, but neither leads to a favorable result for Hood. First, assuming that the misrepresentations attributed to Agarwal had not been made and that Jenson's address had been correctly stated, the only immediate likely consequence would be that no Prudential policy would have been issued to Jenson. In that event, however, Hood would not be able even to assert his present policy claim. The alleged misrepresentation and false address might be relevant to Count I if Hood claimed on the policy and Prudential then asserted that the policy was void because Prudential had no authority to issue a policy in the District of Columbia, but that is a defense that Prudential has never made.
Second, it might be argued that a secondary consequence of Agarwal's alleged misrepresentation of his authority and misstatement of the address is that, if he or Prudential instead had refused Jenson's application, she would then have sought insurance coverage from other carriers despite two rejections, honestly answered their questionnaires, obtained a valid policy, and made Hood the beneficiary under it. However, this chain of events is sheer speculation and, on one crucial point, wholly improbable: given Jenson's medical history, there is no basis for supposing that any company would have issued a policy on her life. Indeed, one company had already turned her down, and Prudential's affidavit asserts that it too would have done so if her medical history had been revealed. Under these circumstances, Count II of the amended complaint must also be dismissed for failure to state a claim on which relief can be granted, because even assuming that the misrepresentation of authority and misstated address can be found and imputed to Prudential, they do not connect to any colorable claim of injury.
In accordance with this Memorandum Opinion, an Order will be entered granting defendant's motion for summary judgment and dismissing this case.
ORDER - March 14, 1991, Filed
Upon consideration of defendant Prudential Insurance Company's motion for summary judgment, the opposition and reply memoranda thereto, and the other pleadings and papers filed in this case, and for the reasons set forth in the Court's Memorandum Opinion of this date, it is hereby
ORDERED, that defendant's motion for summary judgment is GRANTED. Accordingly, judgment is hereby entered in favor of defendant Prudential Insurance Company, and this case is dismissed.
IT IS SO ORDERED.