The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is Plaintiff/Counterdefendant Allianz Life Insurance Company of America's ("Allianz" or "Plaintiff") Motion for Summary Judgment and Defendants/Counterclaimants the Estate of Austin Bleich and Candice Edelbaum Bleich's ("Edelbaum" or "Defendants") Cross-Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c). This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a). Venue is proper pursuant to
28 U.S.C. § 1391. These Motions are decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Plaintiff's Motion for Summary Judgment and denies Defendants' Cross-Motion for Summary Judgment.
FACTUAL AND PROCEDURAL HISTORY
On September 30, 2005, Austin Bleich ("Decedent" or "Bleich") executed an application seeking a life insurance policy, policy number 60012691, with Allianz for $2,000,000 at the elite select non-tobacco rate (the "policy"). (Rath Aff. Ex. A, at 6; Del Mauro Supplemental Certification ("Suppl. Certif.") Ex. C, Pfluger Dep. 105:11-15, 105:21-23.) The application comprised of four parts: Part I (an initial application), Part II (Answers to Medical Examiner), a telephone application, and an Amendment to Application (the "Amendment").
In completing Part I of the application, Decedent responded to questions about his medical history. Bleich indicated that he had never received treatment or advice from a member of the medical profession for heart disease, kidney or liver disease, a stroke, dizziness, nervous or mental disorder, cancer, or a tumor. (Rath Aff. Ex. A, at 5.) Decedent also stated that he had not been hospitalized or advised by a member of the medical profession that he needed hospitalization, a surgical procedure, or a diagnostic test within the past twelve months. (Id.) Thereafter, Decedent signed and acknowledged the "Agreement and permission" portion of the application which provides in relevant part:
I understand that the complete application consists of my written answers to the questions in this application and my answers to the questions in the subsequent phone application. Further, I agree to answer the questions in the subsequent phone application completely and truthfully. I am aware that the Company will rely on these answers and that if my answers are not complete and true, my policy may not be valid. I will review my phone application and notify the Company of any discrepancies. (Id. at 6.)
On October 17, 2005, Bleich completed Part II of the application. (Rath Aff. Ex. B.) Decedent provided the following answers:
Have you ever had or been told you had or consulted a physician or practitioner for:
G. Ulcers, colitis, jaundice, hernia, any disease of the gastrointestinal system including the stomach, intestines, liver, gall bladder, pancreas or esophagus?
YES [Hernia about four years ago] . . . .
L. Cancer, tumor, or growth of any kind?
YES [Basal Cancer] . . . .
Have you ever had or been advised to have any surgical operation, treatment or test; are you using any medication or drugs?
Have you ever had an X-ray, electrocardiogram, or other medical test?
YES [Dr. Leonard Raifman ("Dr. Raifman") for a general check up]
Have you within the last ten years:
A. Had any illness, disease, or injury that is not included in your other answers?
B. Consulted or been examined or treated by any physician or practitioner not named in connection with your other answers?
Subsequently, on October 19, 2005, Decedent orally completed the phone application portion of the application. (Rath Aff. Ex. C, at 1; Rath Aff. ¶ 14.) Bleich indicated that his personal physician was Dr. Raifman, his last visit with Dr. Raifman was nine months ago, the "current status of th[e] visit: (i.e. all test results, normal, complete recovery, still on meds)" was "normal results," and there were no referrals. (Rath Aff. Ex. C, at 1-2.) Decedent also stated that he had undergone a colonoscopy and hernia surgery within the past five years. (Id. at 3-5.) However, he provided that within the past five years he had not: (1) had any diagnostic test including but not limited to imaging, EKG, or laboratory tests; (2) been advised to have a surgical operation; and (3) received medical advice, and treatment had not been recommended or received for any disease or abnormality of the pancreas, cancer or tumor, or any disease or abnormality of the stomach. (Id. at 5-6, 8-9, 12.)
Decedent elaborated on the questions he answered in the affirmative and stated that he was treated for a colonoscopy two years ago with "good results-no polyps removed," (id. at 4); he had hernia surgery four years ago with "good results," (id. at 5); and he was diagnosed with basal cell carcinoma but it was removed from his back within the last five years and his follow up results were "good." (Id. at 11-12.)
Pursuant to the "Permission and agreement" provision in Part I of the application giving Allianz the right to "make necessary changes in th[e] application," (Rath Aff. Ex. A, at 6), Allianz amended the amount of the policy from $2,000,000 to $1,300,000, specified the amount of the monthly premium, and changed the rate class from "elite select non-tobacco" to "super select non-tobacco." (Rath Aff. Ex. E, at 3; Del Mauro Supp. Certif. Ex. C, Pfluger Dep. 105:11-15, 105:21-23; Rath Supplemental Aff. ¶ 16.) Thereafter, on November 15, 2005, Allianz issued Bleich a policy for $1,300,000 at the "super select non-tobacco" rate, one down from the elite rate he applied for. (Rath Aff. Ex. E, at 3; Zelman Decl. Ex. A, Webb Dep. 143: 5-7.)
Consequently, on November 22, 2005, Decedent executed an Amendment to Application ("Amendment") to reflect the changes Allianz made. (Rath Aff. Ex. D.) The Amendment stated: "This amendment is to form a part of said application and a copy attached to the policy . . ." (Id.) It also provided:
Since the date of the original application of this policy, the proposed insured(s) and any family members proposed for insurance in the application: . . . (c) have not suffered an illness or an injury; and (d) have not consulted or been examined by a physician or practitioner[.]
(Id.) Bleich signed and acknowledged the above provisions in the Amendment.
On that same day, Decedent executed the telephone application. (Rath Aff. Ex. C, at 23-24.) Furthermore, on that day, Decedent tendered a check for $578.95 made payable to Allianz for the insurance premium and the policy was delivered to Decedent. (Zelman Decl. Ex. A, Webb Dep.154:1-8, 167:14-25; Rath Aff. Exs. F, G.) Hence, although the policy was issued on November 15, 2005, it did not become effective until November 22, 2005 because Bleich acknowledged and "agree[d]" in Part I of the application that any policy issued "as a result of this application shall be considered in force only when, during my lifetime and ...