Dishman v. American General Assur. Co., C 01-3002-MWB.
| Citation | 187 F.Supp.2d 1073 |
| Decision Date | 19 February 2002 |
| Docket Number | No. C 01-3002-MWB.,C 01-3002-MWB. |
| Parties | Judy K. DISHMAN, Plaintiff, v. AMERICAN GENERAL ASSURANCE COMPANY, f/k/a U.S. Life Credit Life Insurance Company, Defendant. |
| Court | United States District Courts. 8th Circuit. Northern District of Iowa |
Joel J. Yunek of Laird, Heiny, McManigal, Winga, Duffy & Sambaugh, P.L.C., Mason City, IA, for Plaintiff.
Michael W. Thrall of Nyemaster, Goode, Voights, West, Hansell & O'Brien, P.C., Des Moines, IA, for Defendant.
In this action, which was originally filed in the Iowa District Court for Cerro Gordo County on November 29, 2000, but removed to this federal court on January 4, 2001, plaintiff Judy K. Dishman asserts claims of breach of two credit life insurance contracts, breach of reasonable expectations concerning insurance coverage, and first-party bad faith denial of insurance claims. Mrs. Dishman alleges that these claims arise from the failure of defendant American General Assurance Company (AGAC) to pay claims on two of three credit life insurance polices following the death of her husband, Randall Dishman. In its answer, filed January 8, 2001, AGAC denied each of Mrs. Dishman's claims.
This matter comes before the court pursuant to Judy Dishman's July 2, 2001, motion for partial summary judgment on her claim of breach of contract and defendant AGAC's November 16, 2001, cross-motion for partial summary judgment. AGAC's motion seeks summary judgment on Mrs. Dishman's breach-of-contract claim, which AGAC argues also encompasses Mrs. Dishman's reasonable expectations claim. AGAC's motion also expressly seeks summary judgment on Mrs. Dishman's first-party bad faith claim and her prayer for punitive damages on the bad faith claim. The parties each resisted the other's motion for partial summary judgment after various extensions of time to do so.
The court heard oral arguments on the motions on February 14, 2002. Plaintiff Judy K. Dishman was represented at the oral arguments by Joel J. Yunek of Laird, Heiny, McManigal, Winga, Duffy & Sambaugh, P.L.C., in Mason City, Iowa. Defendant American General Assurance Company was represented by Michael W. Thrall of Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., in Des Moines, Iowa. After the oral arguments, on February 19, 2002, AGAC filed a Second Supplemental Appendix consisting of some additional records from the Franklin General Hospital. The cross-motions for summary judgment are now fully submitted. Trial in this matter is currently set to begin on April 15, 2002.
Although the court will not attempt an exhaustive discussion of the undisputed and disputed facts presented by the record in this case, some discussion of the factual background is required to put in context Mrs. Dishman's claims and the parties' arguments for and against summary judgment. Those facts include a synopsis of the representations made by Randall Dishman at the time he applied for the credit life insurance policies at issue here, his health prior to and at that time, and what AGAC considered before denying Judy Dishman's claims under the policies.
Mr. Dishman applied for credit life insurance polices on three occasions at issue here, April 18, 1997, May 20, 1998, and September 30, 1998, as part of the purchase of motor vehicles. Each of the applications included the following "Debtor's Statement," which Randall Dishman signed:
This is to certify that to the best of my knowledge I am now in good health and have not attained the age limit shown above. I have not been treated for, or been told I had, Cancer, Heart Disease or Acquired Immune Deficiency Syndrome (AIDS) within the past 3 years. If disability benefits are provided, I represent that I am free of any physical impairment and that I am gainfully employed at least 30 hours per week.
Plaintiff's Appendix at 1 (May 20, 1998, application), 3 (September 30, 1998, application),1 & 39 (April 18, 1997, application).
It is undisputed that Mr. Dishman was gainfully employed at least 30 hours per week at the time he completed these applications. However, it is also undisputed that he had suffered from polio as a child and that, at the time he applied for each of the credit life insurance policies at issue here, he suffered from post-polio syndrome, including chronic obstructive pulmonary disease (COPD). Although the persons who prepared Mr. Dishman's credit life insurance applications at Hampton State Bank and Lafrenz Ford— persons Mrs. Dishman contends were consequently "agents" of AGAC whose knowledge is imputed to AGAC—knew that Mr. Dishman had had polio and were aware of visible effects of the disease, including limping and a twisted spine, there is no record evidence that they knew that Mr. Dishman suffered from COPD or other, not immediately obvious effects of post-polio syndrome.
It is also undisputed that Mr. Dishman had in fact been hospitalized in September 1996, November 1997, and February 1998, with the principal diagnosis on each occasion identified as "congestive heart failure," and additional diagnoses including COPD and post-polio syndrome. Dr. Hansen, Mr. Dishman's treating physician from 1980 until his death, repeatedly described Mr. Dishman in his records and deposition testimony as suffering from "congestive heart failure." However, Dr. Hansen now concurs with Dr. Levinson, a specialist who treated Mr. Dishman in 1994 and 1999, that Mr. Dishman did not actually suffer from "congestive heart failure," but from a lung condition properly called "cor pulmonale." Prior to this concession, in his deposition testimony, Dr. Hansen testified that he had never actually told Mr. Dishman that he suffered from "heart disease" "in the sense of coronary artery disease or cardiomyopathy." Plaintiff's Appendix at 52, Deposition of Dr. Hansen (Depo. p. 42). However, he also testified that "heart disease" "can be ambiguous and interpreted a hundred ways," see id., and that, while Mr. Dishman did not have coronary artery disease or cardiomyopathy, "he had stress on the [heart] muscle that can be considered disease because of the recurrent [heart] failure." Id. at 53 (Depo. at 47). When asked if he had ever treated Mr. Dishman for "heart disease," Dr. Hansen answered, "Only the failure," which he agreed was secondary to lung failure, which was secondary to scoliosis and polio. Id. (Depo. at 47-48).
Dr. Hansen and Dr. Levinson, Mr. Dishman's treating physicians, agree that Mr. Dishman was not in "good health" at any time, although his chronic, life-threatening conditions might be more or less well compensated by medical treatment at any particular time. Dr. Hansen opined that Mr. Dishman was not in "good health" in 1998 and had not been in "good health" since he had polio as a child; that use of the term "good health" in relation of Mr. Dishman was "a little strange," because of his chronic conditions; that Mr. Dishman had suffered gradual deterioration from 1980 until his death in 1999, in his post-polio myelitis, scoliosis, thoracic cage, and repeated insult to both his pulmonary and cardiac functions; and that Mr. Dishman had been advised of his condition regularly since 1980. Dr. Levinson also testified that he believed that Mr. Dishman was not in "good health," because of the severe health problems and multiple hospitalizations...
To continue reading
Request your trial
-
Kemin Foods v. Pigmentos Vegetales Del Centro
...cause be shown for leave to file an amended pleading that is substantially out of time under that order." Dishman v. American General Assurance, 187 F.Supp.2d 1073 (N.D.Iowa 2002) (quoting In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437 (8th Cir.1999)). Delay alone is not reason to de......
-
Siouxland Energy and Livestock Cooperative v. Gaylor, No. C02-4033-MWB (N.D. Iowa 12/9/2002)
...requirements of Rule 9(b), and therefore would not state a claim upon which relief can be granted. See Dishman v. American General Assur. Co., 187 F. Supp.2d 1073, 1093 (N.D.Iowa 2002). The court grants Siouxland thirty days to file an amendment to its amended IT IS SO ORDERED. ...
-
Dishman v. American General Assurance Co.
...portions of the court's February 19, 2002, ruling on cross-motions for partial summary judgment, see Dishman v. American Gen. Assur. Co., 187 F.Supp.2d 1073 (N.D.Iowa 2002), in light of a subsequent decision of the Iowa Supreme Court in Rubes v. Mega Life & Health Ins. Co., Inc., No. 135/01......