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GUIDA v. PAUL REVERE LIFE INS. CO.

June 30, 1995

JOSEPH GUIDA, M.D., Plaintiff,
v.
THE PAUL REVERE LIFE INSURANCE COMPANY and CHESTER I. WARREN, Defendants.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 This matter is before the Court on motion for summary judgment by defendant Paul Revere Life Insurance Company and on cross-motion for summary judgment by defendant Chester Warren and by plaintiff Joseph Guida. For the following reasons, the motion for summary judgment by defendant Paul Revere Life Insurance Company is granted, the cross-motion for summary judgment by defendant Chester Warren is granted, and the cross-motion for summary judgment by plaintiff Joseph Guida is denied.

 BACKGROUND

 This action, filed on August 26, 1993, involves a claim for disability benefits by plaintiff Joseph Guida, M.D. ("Dr. Guida") pursuant to certain disability insurance policies issued to him by defendant Paul Revere Life Insurance Company ("Paul Revere") through insurance agent and/or broker defendant Chester I. Warren ("Warren").

 In 1991, insurance agent/broker Warren met with Dr. Guida, an anesthesiologist at Community Medical Center, to discuss Dr. Guida's insurance needs. Pursuant to that meeting, Dr. Guida decided to apply to Paul Revere for a disability income insurance policy. (Def.'s Exs. F and K.) *fn1" Warren reviewed the application for the disability policy with Dr. Guida and asked him each of the questions on the application, including those pertaining to the state of his health. *fn2" (Id.) Dr. Guida responded to each of Warren's questions, and Warren filled in the answers on the application based upon the answers given by Dr. Guida. *fn3" (Id.) Dr. Guida reviewed the application, and then signed it. This application was dated June 26, 1991. (Def.'s Ex. N.)

 The 1991 disability policy was issued to Dr. Guida by Paul Revere on September 6, 1991 and provided disability benefits in the amount of $ 12,000 per month in the event of total disability with an annual increase of $ 500 per monthly payment for a total of five years. *fn4" (Id.)

 On January 9, 1992, Dr. Guida first consulted Dr. Stephen Fontanella, an ear, nose and throat doctor, complaining of fullness in both ears, vertigo or dizziness, ringing in the ears (tinnitus), especially in the right ear, and a sensation of hearing loss in the right ear. (Def.'s Ex. C.) Dr. Fontanella examined Dr. Guida and also had an audiologist on his staff perform an audiology exam on Dr. Guida, since he was complaining of mild hearing loss. Based upon these complaints and his examination and tests, Dr. Fontanella prescribed a diuretic and an anti-vertigo medication for Dr. Guida, as well as special vitamins. (Id.) Dr. Guida filled the prescriptions for the diuretic Chlorothiazide (50 tablets) and for the anti-vertigo drug Meclizine (90 tablets). (Def.'s Ex. E.)

 Dr. Fontanella referred Dr. Guida to Alan Gertner ("Gertner"), an audiologist at the Better Hearing Center, for a full set of audiology tests. Dr. Guida had these audiology tests performed on January 17, 1992 and on January 23, 1992. (Def.'s Exs. C and D.) Dr. Guida filled out a patient intake sheet at Gertner's office on January 17, 1992 wherein he described his medical problem as: "Vertigo, mild nausea, fullness in [or] above both ears, some loss of hearing in [right] ear with ringing, occasional roaring." (Def.'s Ex. D.) Gertner performed various diagnostic tests on Dr. Guida and, upon the completion of these tests, prepared a report which he sent to Dr. Fontanella. (Id.) In Gertner's report, he states that "Dr. Guida presented complaints of vertigo accompanied by mild nausea and fullness in his ears [and that these] symptoms began early last month [December 1991] and have continued." (Id.) In his report, Gertner concludes:

 
These findings, coupled with patient's reports of fullness in the ear and of episodic vertigo with nausea supports the possibility of an early Meniere's Disease or some allergic or autoimmune type of inner ear finding. Recommend medical follow-up as appropriate to confirm these results and r/o [rule out] retrocochlear involvement and to treat as indicated.

 (Id.) (emphasis added).

 Although Gertner cannot specifically remember if he discussed these test results with Dr. Guida, it is Gertner's regular practice to discuss test results with patients. (Id.)

 Dr. Guida was seen by Dr. Fontanella again on February 25, 1992. (Def.'s Ex. C.) On February 25, 1992, Dr. Fontanella had received Gertner's report pertaining to the audiology tests performed by Gertner in January and Dr. Fontanella discussed these results with Dr. Guida. Dr. Fontanella also gave Dr. Guida a copy of the audiology test results. (Id.) Dr. Fontanella's records provide that on February 25, 1992, Dr. Guida was complaining of persistent vertigo and tinnitus especially in the right ear, but also the left, and of fullness in the ears. (Id.) At this point, Dr. Fontanella recommended that Dr. Guida have a full vertigo workup done, including blood tests, to determine if the vertigo was being caused by anemia, diabetes, thyroid or other problems. (Id.) Dr. Fontanella also recommended a CAT scan to determine if the vertigo was a symptom of a more serious problem such as a brain or an ear tumor. (Id.) However, Dr. Guida chose not to have these tests done at this point but rather he refilled his prescription for the diuretic Chlorothiazide (50 tablets) and the anti-vertigo medication Meclizine (90 tablets). (Def.'s Exs. C and E.)

 Sometime prior to May of 1992, Dr. Guida apparently saw Dr. Fontanella at Community Medical Center, where they both worked, and mentioned to him that he was still having problems with the vertigo. Dr. Fontanella stressed to him that he needed to have the full vertigo workup done, including the blood work and the CAT scan. (Def.'s Ex. C.) Dr. Guida had the blood tests and the CAT scan performed on May 7, 1992. The results of the blood tests were essentially normal, except for high cholesterol. *fn5" (Id.) The CAT scan was normal, which, while it did not rule out that Dr. Guida had a vertigo problem, enabled Dr. Fontanella to rule out certain possible causes of the vertigo, such as brain or ear tumors. (Id.) Dr. Guida had the CAT scan done at Ocean Medical Imaging Center, where he filled out a Patient Data Sheet. A question on the Patient Data Sheet asked for "a brief summary of your medical problems as they pertain to this scan" to which Dr. Guida responded: "Vertigo, fullness above both ears, some episodes worse than others, with left sided fullness worse than right." (Def.'s Ex. F.)

 Sometime around April of 1992, Dr. Guida contacted Warren to inquire about certain insurance discounts which Dr. Guida had become aware of through another insurance agent who had visited Community Medical Center *fn6" and also to inquire about the possibility of purchasing excess disability insurance benefits in addition to the benefits under the 1991 policy and about the possibility of purchasing a business overhead policy. (Def.'s Ex. K.) Thereafter, Warren conferred with Judy Platt, a brokerage representative at Paul Revere, regarding the insurance discount and the additional insurance coverage and benefits about which Dr. Guida had inquired. (Id.) Warren then contacted Dr. Guida and set up a meeting with him for May 19, 1992.

 Warren and Dr. Guida met on May 19, 1992 and Warren informed Dr. Guida that he would receive the discount on the 1991 disability policy. Warren and Dr. Guida discussed the types of additional insurance coverage and benefits available to Dr. Guida per his prior inquiry. (Id.) At this meeting Dr. Guida told Warren that he wanted to apply for $ 8,000 of excess monthly disability coverage in addition to the approximately $ 12,000 of coverage already provided for by the 1991 disability policy and that he also wanted to change the 1991 disability policy from a policy under which benefits would be paid until age 65 to a lifetime benefit policy. *fn7" (Id.)

 At this meeting on May 19, 1992, Warren asked Dr. Guida if there had been any change in his health in the eleven months since he had filled out the application for the 1991 disability policy. (Id.) Dr. Guida responded that there had been no changes in his health. (Id.) Dr. Guida did mention that he had seen his physician for certain flu-like symptoms and nausea he had experienced in December 1991 or January 1992 but that these symptoms, which he stated had probably been due to a viral infection, had since disappeared. (Id.) Other than perhaps the general statement that he had seen his physician for slight nausea and other flu-like symptoms, Dr. Guida did not tell Warren of his visits to Dr. Fontanella in January 1992 and in February 1992. Nor did he tell Warren about any of the various medical tests which had been performed on him in January and February ...


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