United States District Court, S.D. West Virginia, Huntington Division
HEATHER ROBERTSON, individually and as the personal representative of Jon Robertson, deceased, Plaintiff,
THE CINCINNATI LIFE INSURANCE COMPANY, a foreign corporation, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court are the Motions for Summary Judgment
submitted by Plaintiff Heather Robertson and Defendant
Cincinnati Life Insurance Company. ECF Nos. 119, 120. In her
complaint, Plaintiff alleges claims against Defendant under
four causes of action: (1) breach of contract; (2) violation
of the West Virginia Unfair Trade Practices Act
(“UTPA”); (3) common law bad faith; and (4)
reasonable expectations. See Compl., ECF No. 1-1, at
moves for summary judgment on her breach of contract claim
and violation of the UTPA claim-counts one and two of her
complaint, respectively. Pl.'s Mot. for Summ.
J., at 2. Plaintiff claims she is entitled to summary
judgment on these two counts because Defendant failed to pay
her benefits upon the death of her husband, Jon Robertson,
and failed to conduct a reasonable investigation into whether
Mr. Robertson made material misrepresentations on his
application for life insurance. See Mem. In Supp. of
Pl.'s Mot. for Summ. J., ECF No. 122, at 4, 18.
Plaintiff also moves for summary judgment on her allegation
that Defendant violated section 114-14-8 of the West Virginia
Insurance Regulations, arguing that Defendant failed to adopt
written standards for the investigation of claims.
Id. at 23.
moves for summary judgment on all counts Plaintiff asserts
against it in the complaint. Def.'s Mot. for Summ.
J., at 1. Defendant claims it is entitled to summary
judgment on all counts because Mr. Robertson made material
misrepresentations on his application for life insurance, and
Defendant reached this conclusion after conducting a
reasonable investigation. See Mem. In Supp. of Def.'s
Mot. for Summ. J., ECF No. 121, at 9-14.
parties have fully briefed the issues and the motions are now
ripe for adjudication. As explained below, the Court
GRANTS, IN PART,
AND DENIES, IN PART, both
Plaintiff's and Defendant's Motions for Summary
January 3, 2013, Plaintiff's decedent, Jon Robertson,
applied for life insurance with Defendant.
Application, ECF No. 122-3, at 1, 3. Question 30 of
the application asked if the “Proposed Insured had or
had been told by a medical professional he/she had any of the
following” twenty-two listed medical conditions.
Id. at 2. The only checked box related to
“High Blood Pressure, ” and the remaining 21
boxes, which included one listing chest pain, were unchecked.
Id. Question 31(a) of the application asked whether
the proposed insured had, in the last five years, “been
hospitalized or consulted, been examined or treated by any
physician, psychiatrist or other medical professional not
disclosed in response to the prior questions.”
Id. Mr. Robertson answered no. Id. Question
34 of the application asked if “the Proposed Insured
ever used tobacco or nicotine Products.” Id.
The checked box was in the “No” column.
Id. On January 30, 2013, Defendant issued a policy
of life insurance to Plaintiff's decedent, naming Mr.
Robertson as an insured thereunder. Compl., at 8;
Dep. of Singer, ECF No. 122-21, at 2. Less than two
years later, on January 13, 2015, Mr. Robertson died from
esophageal cancer. Death Certificate, ECF No. 122-1.
January 23, 2015, Plaintiff made a claim for benefits
provided by Defendant. Claim, ECF No. 122-9.
However, this claim was denied, and Defendant voided the
policy via a letter dated April 8, 2015, after Defendant
determined that Mr. Robertson provided inaccurate information
in response to Questions 30, 31(a), and 34 of the
application. Denial Letter, ECF No. 122-2.
April 4, 2016, Plaintiff filed this action against Defendant
in the Circuit Court of Cabell County, West Virginia.
Notice of Removal, ECF No. 1, at 1. A Notice of
Removal to this Court was then filed by Defendant on May 6,
2016, pursuant to 28 U.S.C. § 1441. Id. Both
parties filed their motion for summary judgment on October
30, 2018. ECF Nos. 119, 120. Both parties then filed their
response and reply on November 13, 2018, and November 20,
2018, respectively. ECF Nos. 127, 129, 132, 133.
STANDARD OF REVIEW
obtain summary judgment, the moving party must show that no
genuine issue as to any material fact remains and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, a court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
a court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Any inference,
however, “must fall within the range of reasonable
probability and not be so tenuous as to amount to speculation
or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
(citation omitted). Therefore, summary judgment will not be
granted if a reasonable jury could return a verdict for the
non-moving party on the evidence presented. See
Anderson, 477 U.S. at 247-48.
Count One: Breach of Contract
Plaintiff and Defendant argue that they are entitled to
summary judgment on Plaintiff's claim that Defendant
breached the terms of the life insurance policy issued to Mr.
Robertson by failing to pay the benefits due under the
policy. See Mem. In Supp. of Pl.'s Mot. for Summ.
J., at 4; Mem. In Supp. of Def.'s Mot. for Summ.
J., at 7. Defendant contends it is entitled to summary
judgment because the evidence demonstrates that Mr. Robertson
had a history of chest pain and smoking, he omitted these
facts in his application for an insurance policy, and
Defendant would not have issued the policy had this history
been disclosed. See Mem. In Supp. of Def.'s Mot. for
Summ. J., at 9-10. However, Plaintiff asserts that there
is no “legally sufficient evidence” to support
the conclusion that Mr. Robertson had a history of chest pain
or smoking, and thus no evidence that he withheld information
on his application. See Mem. In Supp. of Pl.'s Mot.
for Summ. J., at 5. The Court must deny each
parties' request for summary judgment as to count one
because Mr. Robertson's history of chest pain and smoking
is a material fact reasonably disputed by both parties.
Virginia Code Section 33-6-7 provides that
“[m]isrepresentations, omissions, concealments of
facts, and incorrect statements” in an application for
an insurance policy may prevent recovery under the policy if
those acts are:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the
hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued
the policy, or would not have issued a policy in as large an
amount, or would not have provided coverage with respect to
the hazard resulting in the loss, if the true facts had been
made known to the insurer as required either by the
application for the policy or otherwise.
West Virginia Supreme Court has stated that materiality under
this statue is determined by:
[W]hether the insurer in good faith would either not have
issued the policy, or would not have issued a policy in as
large an amount, or would not have provided coverage with
respect to the hazard resulting in the loss, if the true
facts had been made known to the insurer as required either
by the application for the policy or otherwise.
Powell v. Time Ins. Co., 382 S.E.2d 342, 250 ( W.Va.
result of this holding, “neither West Virginia Code
§ 33-6-7(b) nor (c) requires that an insurer prove the
subjective element that an insured specifically
intended to place misrepresentations, omissions,
concealments of fact, or incorrect statements on an
application in order for the insurer to avoid the
policy.” Thompson, 460 S.E.2d at 724 (emphasis
of a policy because of an alleged misrepresentation is an
affirmative defense which the insurer bears the burden of
proving by a preponderance of the evidence. Powell,
382 S.E.2d at 350. Additionally, “an insured
may defeat this [affirmative] defense by setting forth
evidence that the misrepresentation, omission, concealment of
fact, or incorrect statement related to a minor
ailment suffered by the insured which was so unrelated
and disconnected from the disabling condition suffered by the
insured that it could not have possibly been material with
respect to the issuance of the policy.”
Thompson, 460 S.E.2d at 727 (emphasis added).
Defendant attempts to avoid the policy as a result of a
misrepresentation, it bears the burden of proving this
affirmative defense. Thus, the Court will first list
Defendant's evidence which supports its right to void the
policy, then examine Plaintiff's counterevidence to
determine whether summary judgment should be granted to
first argues that it is entitled to summary judgment because
Mr. Robertson had a history of chest pain that he failed to
disclose, and Defendant would not have issued the policy had
this history been presented in Mr. Robertson's
application. See Mem. In Supp. of Def.'s Mot. for
Summ. J., at 9-10. In support of its position that
Defendant had a history of chest pain, Defendant submits the
following evidence: (1) a Valley Health medical record from
December 26, 2012, which states Mr. Robertson complained that
his “chest feels like it has razor blades in
it”;(2) a medical record from a visit to nurse
practitioner Mary Adams, also of Valley Health, on January
25, 2013, which states Mr. Robertson complained that he had
“chest pain that radiates up neck x 6 months. Happens
once a week”; (3) a medical record by Dr. Eric
Bronstein, cardiologist at King's Daughters Medical
Center, from February 6, 2013, which states Mr. Robertson had
“a history of chest pain in left chest over the last
5-6 months. Pain would radiate, at times, to the
neck”; and (4) a medical record by Dr.