Diggs' Estate v. Enterprise Life Ins. Co., 01-82-0402-CV
| Citation | 646 S.W.2d 573 |
| Decision Date | 30 December 1982 |
| Docket Number | No. 01-82-0402-CV,01-82-0402-CV |
| Parties | ESTATE OF Harvey DIGGS, Appellant, v. ENTERPRISE LIFE INSURANCE CO., Appellee. (1st Dist.) |
| Court | Court of Appeals of Texas |
Victor Branch, Houston, for appellant.
Jeffrey McClure, Houston, for appellee.
Before WARREN, JACK SMITH and BULLOCK, JJ.
This is an appeal from a summary judgment decreeing that appellant take nothing on her suit for recovery of the proceeds of a life insurance policy.
On March 12, 1980, Harvey Diggs bought a credit life insurance policy simultaneous to his purchase of a new car. The application for insurance signed by Diggs contained the following paragraph:
I hereby certify that I am in good health as of the effective date above and that I am presently not suffering from or within the preceding 24-months have not suffered from any heart disease, or other cardiovascular diseases, lung disease, or respiratory system ailments, cancer, urinary disease or disorders, epilepsy, stroke or other diseases of the brain or nervous system, diseases or disorders of the liver, gall bladder, kidney, bladder, stomach or intestinal tract, high blood pressure or tumors of any kind.
On February 15, 1981, Harvey Diggs died of cardiac arrhythmia, a heart condition. After a claim for payment was denied, his wife, as personal representative of the estate, sued for the amount due under the policy. Appellee's answer to the suit and its motion for summary judgment contended that it was induced to issue the policy of insurance by certain false, material representations, made by the deceased on his application for insurance, concerning his health and medical history.
Appellee's summary judgment proof on its affirmative defenses consisted of the deceased's medical records, the deposition of Dr. M.J. O'Donnell, and the sworn affidavit of C. Craig Cole. Appellant filed a written response to appellee's motion for summary judgment, but presented no proof.
In two points of error, appellant claims that the court erred in granting the summary judgment because appellee's evidence failed to establish as a matter of law all of the essential elements of its affirmative defense.
Five elements must be pled and proved before an insurer may avoid payment on an insurance policy because of a misrepresentation by an insured: 1) the representation by the insured, 2) the falsity of the representation, 3) reliance thereon by the insurer, 4) the intent to deceive by the insured, and 5) the materiality of the representation. Mayes v. Massachuetts Material Life Ins. Co., 608 S.W.2d 612 (Tex.1980).
Dr. Manus J. O'Donnell, a cardiologist, testified by deposition that he first met Harvey Diggs at Methodist Hospital in Houston in 1976; that Mr. Diggs complained of a shortness of breath, swelling of his legs, chronic cough, spitting blood; that Mr. Diggs had a history of heart disease dating back to 1972; that upon examination, Mr. Diggs was found to have congestive heart failure with marked enlargement of the heart; that there is no known cure for this condition; that Mr. Diggs' condition did not change from 1976 to March 12, 1980; that it is unusual for a patient in Mr. Diggs' 1976 condition to live longer than five years; that he explained Mr. Diggs' medical condition to him and explained the limitations that the condition would impose on his life-style; that various drugs were prescribed to treat the disease; and that he examined Mr. Diggs on April 22, 1980 and found a significant degree of heart failure. Mr. Diggs' medical records show that, on the advice of his doctor, he took a disability retirement from his job in 1977. These records also show that, on the day after the application for insurance was signed, Mr. Diggs received treatment for his heart condition at the Texas Medical Center. The examination on that day revealed that Mr. Diggs' heart was pronouncedly enlarged.
Appellee's proof conclusively shows that the deceased knowingly made a false representation regarding his medical history. It is inconceivable that any person with Diggs' medical history could fail to know he was not in good health or fail to know that he was then suffering from a serious heart ailment. Prudential Ins. Co. of America v. Beaty, 456 S.W.2d 164 (Tex.Civ.App.--Texarkana 1970, no writ).
The sworn affidavit of C. Craig Cole, attached to appellee's motion for summary judgment, stated that he had personal knowledge of the facts testified to in the affidavit; that the representation made by Harvey Diggs on his application "... that as of March 12, 1980, he was in good health and was not suffering...
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