MEMORANDUM AND ORDER
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.
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.)
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.
(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.
(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.
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.