Murphy v. Jefferson-Pilot ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
APR 13 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
TERRENCE EDWARDS MURPHY,
Plaintiff-Appellant,
v.
No. 98-6290
JEFFERSON-PILOT LIFE INSURANCE (D.C. No. CIV-97-1747-C)
COMPANY, a North Carolina (Western District of Oklahoma)
Corporation,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before PORFILIO, MCKAY, and TACHA, Circuit Judges.
Dr. Terrence Edwards Murphy initiated a state court action against Jefferson-Pilot
Life Insurance Company for failure to pay benefits under a disability insurance contract.
The case was removed to federal district court and Jefferson-Pilot moved for summary
judgment based on omissions or fraudulent statements Dr. Murphy made in his
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
application for insurance. Dr. Murphy appeals the district court’s grant of summary
judgment in favor of Jefferson-Pilot. We affirm.
I.
In early 1988, Dr. Murphy spent several days at a drug and alcohol treatment
program in Florida. Later that year, the Alabama State Board of Medical Examiners filed
a complaint concerning Dr. Murphy’s inability to practice medicine because of his
excessive use of drugs, narcotics, alcohol, or other substances. As a result of the
Alabama complaint, Dr. Murphy consented to enter a substance abuse treatment program,
submit to monitoring by a psychiatrist and regular blood and urine sampling, and accept a
year’s suspension and term of probation following the suspension. The Alabama medical
board later declined to reinstate his license finding insufficient evidence he had complied
with its orders. In Oklahoma, Dr. Murphy agreed to a five-year probation during which
he would refrain from using substances, undergo blood and urine tests for substance use,
continue his treatment, and report quarterly to the state medical board. In 1988 and 1989,
Dr. Murphy had drug screening tests and at least ten months of weekly or bimonthly
consultations with Dr. Gary Borrell.
In 1993, Dr. Murphy applied for, and was issued, a disability income insurance
policy from Jefferson-Pilot. This original policy provided a monthly benefit in the event
Dr. Murphy became disabled and was unable to perform the substantial and material
duties of his profession. In 1994, Dr. Murphy applied to increase the monthly disability
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coverage.1 He completed the application on March 12, 1994, at which time he answered
“no” to the following questions.
6. Have you within the past 7 years:
(a) Sought medical advice or been medically
treated for the use of alcohol or other drugs?
(b) Been advised by a physician to reduce your
consumption of alcohol?
….
7. Other than the above, have you within the past 7 years:
(a) Had a medical … consultation …?
(b) Been a patient in a hospital, clinic, sanatorium,
or other medical facility?
(c) Had an … other diagnostic test?
(d) Been advised to have any diagnostic test,
hospitalization … which was not completed?
At the request of Jefferson-Pilot, Dr. Murphy had a medical exam and answered
additional medical questions on or about April 11, 1994. Before issuing the policy,
Jefferson-Pilot requested details concerning the suspension and probations of Dr.
Murphy’s medical license. Dr. Murphy responded, “My license to practice Medicine in
the State of Alabama was under suspension for one year in 1987, due to a hearing on
hospital staff charges which were later dropped due to no validity of any charges. I have
practiced in Oklahoma since 1988 to present time, under Oklahoma license.” Jefferson-
1
The parties appear to dispute whether the 1994 application resulted in an increase
in monthly disability benefit coverage. The district court made no findings on this issue,
and it does not influence our analysis. Neither party contests that Dr. Murphy sued to
collect benefits under the terms of the 1994 policy, which was renewed later that year and
in 1995.
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Pilot also requested information such as tax returns and medical records of treatment
given by Dr. Chestnut, Dr. Murphy’s sister. Dr. Murphy did not provide the tax returns,
and Dr. Chestnut indicated she had no record of treating Dr. Murphy. Jefferson-Pilot also
became aware during the underwriting process that Dr. Murphy had visited Dr. D.L. Trent
in June 1992 following a car accident and that this information had not been included in
Dr. Murphy’s responses to questions on the 1994 application for disability insurance.
Based on his application and the other information furnished, Jefferson-Pilot
provided Dr. Murphy disability coverage with a benefit amount of $5,000 per month and
a residual disability rider provision for which Dr. Murphy paid an additional premium; the
new policy became effective on June 1, 1994. The policy clearly stated:
NOTICE – PLEASE READ! THIS POLICY MAY NOT
APPLY WHEN YOU HAVE A CLAIM! This policy was
issued based on the information entered in your application, a
copy of which is attached to the policy. If you know of any
misstatement in your application, or if any information
concerning the medical history of any insured person has been
omitted, you should write us immediately regarding the
incorrect or omitted information; otherwise, your policy may
not be a valid contract.
Dr. Murphy allowed his disability policy to lapse for nonpayment in October 1994 and
April 1995. Both times, Jefferson-Pilot instructed Dr. Murphy to fill out a reinstatement
application and pay all past due premiums. On the April 18, 1995 reinstatement
application, Dr. Murphy answered “no” to the following questions:
3. Are you taking any medication or treatment, or on any
special diet?
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4. Have you received any medical attention or advice in
the past 5 years?
He answered “yes” to the question:
5. To the best of your knowledge and belief, are you and
all persons named for coverage under this policy now
in good health and free from mental and physical
impairment or deformity.
The application stated he had read the foregoing answers, understood them to be true and
complete, and knew reinstatement was in accordance with the answers. The record
showed on January 9 and February 6, 1995, Dr. Murphy had consulted with Dr. Charles
Cobb who diagnosed him with Attention Deficit Disorder and prescribed Dexedrine.
On June 16, 1995, Dr. Murphy was diagnosed as suffering from a “major
depressive order” and thereby was totally disabled and unable to return to work. He
timely submitted a disability insurance claim to Jefferson-Pilot after the contractual
ninety-day elimination period on November 3, 1995. Jefferson-Pilot responded four
months later but did not make payments. By letter of March 7, 1996, Jefferson-Pilot
notified Dr. Murphy that it was rescinding his policy and returning all previously paid
premiums. The letter indicated Jefferson-Pilot had received information Dr. Murphy had
previous treatment for a medical condition; several questions on Dr. Murphy’s
application, medical exam and reinstatement application were incorrect; and Jefferson-
Pilot believed Dr. Murphy had psychiatric treatment and hospital confinement for
substance abuse in 1988.
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Arguing Jefferson-Pilot unlawfully breached the insurance contract and its duty to
deal fairly and in good faith with its insured, Dr. Murphy sued Jefferson-Pilot for
disability benefits and other damages. The district court granted summary judgment in
favor of Jefferson-Pilot.
We review the grant of summary judgment employing the same standard used by
the district court: summary judgment is only appropriate if there is no substantial
controversy about any material fact and the moving party is entitled to judgment as a
matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court
draws all justifiable inferences in favor of the nonmoving party. Eastman Kodak Co. v.
Image Technical Services, Inc., 504 U.S. 451, 456 (1992). Further, “the party opposing
the motion for summary judgment bears the burden of responding only after the moving
party has met its burden of coming forward with proof of the absence of any genuine
issues of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Dr. Murphy contends he met his Rule 56(c) burden by showing that factual
elements charged are disputed. See Anderson, 477 U.S. at 248 (A party opposing a
properly supported motion for summary judgment must offer evidence, in admissible
form, sufficient to raise a genuine issue of material fact which exists only if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.). He argues
Jefferson-Pilot knew about his alcohol problems and treatment when it issued and
reinstated the policy and, at the very least, the extent of Jefferson-Pilot’s knowledge
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presents a question of fact. Further, he says he intended to provide honest answers to
Jefferson-Pilot. For example, he did not answer “yes” to questions about “treatment”
because he thought he was only being “evaluated” in 1988 to defend against allegations
of substance abuse in order to maintain his medical license and hospital privileges. He
“never perceived” he was a “patient” in a hospital, clinic, sanatorium, or other medical
facility, and therefore his answer was complete and honest.
To defeat a summary judgment motion, however, the non-movant must do more
than simply show that there is “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Jefferson-Pilot argues the evidence is so “one-sided one party [Jefferson-Pilot] must
prevail as a matter of law.” Anderson, 477 U.S. at 252. Under Oklahoma law, an insurer
is entitled to avoid its obligation under an insurance policy if the applicant made
misrepresentations in his application that were fraudulent, material to the risk, and the
insurer, had it known the truth, would not in good faith have issued the policy. Okla. Stat.
tit. 36 § 3609 (1991); Burgess v. Farmers New World Life Ins. Co., 12 F.3d 992, 993
(10th Cir. 1993). Intent to deceive is required, and that intent may be inferred from the
facts. See Hays v. Jackson Nat’l Life Ins. Co., 105 F.3d 583, 587 (10th Cir. 1997).
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Jefferson-Pilot argued Dr. Murphy knew material2 information to be untrue and
knowingly gave that information in violation of prohibitions against “misrepresentation”
in insurance applications. See Okla. Stat. tit. 36 § 3609. He further committed
“concealment” when he intentionally withheld facts of which he should have had
knowledge, Massachusetts Mut. Life Ins. Co. v. Allen, 416 P.2d 935, 940 (Okla. 1965),
and obviously omitted a good deal of crucial information.
We agree the only reasonable inference is Dr. Murphy intended to conceal his
medical history and deceive the insurance company. Perhaps we can ascribe a few
misrepresentations or omissions to good faith misinterpretation of question terms like
“treatment,” but he made many such errors on several forms. The nature of the
misrepresentations, concealment, and omissions was shown by Jefferson-Pilot through
documentary evidence of Dr. Murphy’s true medical history, substance abuse treatment,
and medical board run-ins. Unlike the plaintiff in Brunson v. Mid-Western Life Ins. Co.,
547 P.2d 970 (Okla. 1976), Dr. Murphy provides no “plausible, innocent explanation,”
for the pervasive omissions and untruths. Hays, 105 F.3d at 589. Moreover, Dr.
Murphy’s argument regarding Jefferson-Pilot’s obligation to investigate obvious half-
2
Materiality is shown if, with the correct information, the insurance company
would not have issued the policy. Jefferson-Pilot’s brief states numerous times it would
not have insured Dr. Murphy if it had known of his alcohol problems and treatment. We
note, however, Jefferson-Pilot has provided no example of cases where it has, in fact,
denied insurance on similar grounds.
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truths he supplied on applications has been rejected by Vaugh v. American Nat’l Ins.
Co., 543 P.2d 1404, 1406-07 (Okla. 1975).
We can empathize with Dr. Murphy whose profession has been gravely harmed by
his alcoholism and understand why he would need disability insurance because of his
condition. Yet, the evidence points only in Jefferson-Pilot’s favor that Dr. Murphy
misrepresented and concealed the truth in his applications. The district court properly
granted summary judgment.
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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