White v. American Republic Ins., WD

• Decision Date: 13 January 1987
• Docket Number: No. WD,WD
• Citation: 726 S.W.2d 357
• Parties: Robert K. WHITE, (Appellant), v. AMERICAN REPUBLIC INSURANCE, (Respondent). 38125.
• Court: Missouri Court of Appeals

Page 357

726 S.W.2d 357

Robert K. WHITE, (Appellant), v. AMERICAN REPUBLIC INSURANCE, (Respondent).

No. WD 38125.

Missouri Court of Appeals Western District.

Jan. 13, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 3, 1987.

Application to Transfer Denied April 14, 1987.

Martin M. Bauman, St. Joseph, for appellant.

Wendell E. Koerner, Jr., Keith W. Ferguson, St. Joseph, for respondent.

Before GAITAN, P.J., and DIXON and TURNAGE, JJ.

GAITAN, Presiding Judge.

Robert K. White, plaintiff-appellant, brought this suit to recover under two insurance policies issued by American Republic Insurance Co., defendant-respondent. The trial court granted summary judgment in favor of defendant. Plaintiff appeals from that order alleging the trial court erred in granting summary judgment because there was a genuine issue of material fact to be presented to the trier of fact.

The judgment of the trial court is reversed and remanded for trial.

Plaintiff's wife, Susan White, suffered from breast cancer in 1973, and had undergone a mastectomy. In 1982, plaintiff was issued a policy of insurance with Continental General Insurance Company, but it excluded coverage of Susan for cancer. Susan had received annual checkups by the doctor who performed her mastectomy and no further cancer was detected. Plaintiff believed that Susan had completely recovered from her cancer and should be able to have a medical insurance policy that did not exclude cancer coverage. Therefore, plaintiff made out an application for insurance with defendant on February 25, 1984.

Susan White was thirty-seven years old at the time of plaintiff's application for insurance with defendant and was very active. She exercised and played racquetball. On February 16, 1984, she went to Dr. Richard J. Brennan, an orthopedic surgeon in St. Joseph, complaining of left hip pain which began after a racquetball game. Dr. Brennan examined Susan and his diagnosis was bursitis, an inflammation of the small serous sac between a tendon and a bone. He prescribed Butazolidin. Susan saw Dr. Brennan again on February 23, 1984. She ceased taking the Butazolidin which he prescribed because it did not agree with her. Dr. Brennan gave Susan an injection of Xxlccaine and Depo-Medrol. He was still treating her for bursitis at this time.

Plaintiff filled out the application for insurance with defendant two days later, on February 25, 1984. The application included a question asking plaintiff to list each time during the last five years that each person to be covered by the policy went to a doctor for medical check-ups, consultation, diagnosis, advice or treatment, or to a hospital, clinic or other facility (in-patient or out-patient) for tests or treatment. Plaintiff answered that Susan had seen Dr. Richard Craig for a routine check-up in April, 1983. Plaintiff did not list Susan's two visits to Dr. Brennan. The application also asked plaintiff to list the prescription drugs each person had taken or had prescribed within the last three years. Plaintiff wrote "none" in response to this question. The application inquired as to whether any person had any trouble with, inter alia, his or her:

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(F) Reproductive System ... (e.g. breast trouble) such as discharge, cysts, lumps, tumors, etc.;

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(H) Musculoskeletal System (e.g. bones, joints, muscles, tendons, spine) such as neuritis, sciatica, arthritis, rheumatism, lumbago, gout, etc.;

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Plaintiff responded that Susan had a mastectomy in May, 1973 from which she had recovered, but did not indicate that she was being treated for bursitis. Plaintiff also advised defendant that his health insurance with Continental General had been modified to exclude coverage of Susan for cancer because of her mastectomy.

Susan saw Dr. Brennan again on March 8 and March 20, 1984. The pain worsened when she exercised and, as a result, Dr. Brennan admitted her to Missouri Methodist Hospital on March 20, 1984 to have a bone scan. The results of the bone scan were normal and Susan was released from the hospital. The insurance policies with defendant were issued on March 27, 1984.

Susan saw Dr. Brennan again on April 2, 1984. At this time Dr. Brennan was still treating Susan for bursitis, but on April 2, 1984, a CT scan revealed that there was a tumor within the bones of the pelvis and lower back. Dr. Brennan stated in an affidavit that, from the initial visit at his office until April 2, 1984, he was under the impression that Susan was suffering from a benign process (bursitis).

On April 9, 1984, Susan was admitted to the University of Kansas Medical Center for further testing. The final diagnosis was metastatic breast carcinoma to the liver and bone. She was released from the hospital on April 24, 1984. Susan was admitted to the University of Kansas Medical Center again on October 1, 1984 and new metatases to the brain, bone, and lung were discovered. She was discharged on October 5, 1984. She received radiation therapy and chemotherapy at Truman Medical Center. Susan died on November 24, 1984.

Plaintiff incurred medical expenses of approximately $25,000. When defendant refused to pay under the insurance policies, plaintiff filed this action. Defendant answered plaintiff's petition, admitting that it issued the policies, but stating that the policies did not cover the claims because there was no coverage for pre-existing conditions. Defendant further answered that the policies were voidable as to Susan because plaintiff and Susan made material misrepresentations in the application, and concealed that Susan had been to a doctor. Defendant also claimed that plaintiff had breached the warranty in the policy to notify defendant of any changes in the answers in the application for insurance. Defendant moved for, and was granted, summary judgment.

In considering a motion for summary judgment, the trial and appellate court must scrutinize the record in the light most favorable to the party against whom the motion for summary judgment is requested and must accord to that party the benefit of every doubt. Union Elec. Co. v. Clayton Center Ltd., 634 S.W.2d 261 (Mo.App.1982). Summary judgment is a drastic remedy and is therefore inappropriate unless the prevailing party has shown by unassailable proof to be entitled thereto as a matter of law. First National Bank of St. Charles v. Chemical Products, Inc., 637 S.W.2d 373 (Mo.App.1982).

There are two issues that must be addressed. First, does plaintiff's failure to disclose in the insurance application Susan's visits to Dr. Brennan cause the policy to be void at defendant's option? Second, was the cancer, diagnosed on April 2, 1984, a pre-existing condition as defined under the policy which is therefore not covered?

As to the first issue, we believe plaintiff's failure to accurately answer the insurance application was not a misrepresentation of material facts so as to make the policy voidable. In Colbert v. Mutual Benefit Life Insurance Company, 608 S.W.2d 119, 122 (Mo.App.1980), upon which defendant relies, this court held:

A material misrepresentation has been determined, "by whether the fact, if stated truthfully, might reasonably have influenced the insurance company to accept or reject the risk or to have charged a different premium, and not whether the insurer was actually influenced ..." (citation omitted) (emphasis added).

Colbert, however, is factually distinguishable from the present case. In Colbert, the plaintiff's son had suffered from an eye impairment since 1968 and had been treated by a doctor several times for the problem. The plaintiff failed to disclose his son's eye condition or the son's treatment by a...