You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
A. Petersen v. Mutual Life Ins. Co. (12/14/90) sp-3653
<![CDATA[
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
A. LEE PETERSEN, )
) File No. S-3327
Appellant, )
)
v. ) Trial Court No.
) 3AN-85-17355 Civil
MUTUAL LIFE INSURANCE )
COMPANY OF NEW YORK, ) O P I N I O N
)
Appellee. ) [No. 3653 - December 14, 1990]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Peter M. Page, Juneau, and
A. Lee Petersen, Anchorage, for appellant.
Andrew Guidi, Delaney, Wiles, Hayes, Reitman
& Brubaker, Anchorage, for appellee.
Before: Matthews, Chief Justice,
Rabinowitz, Burke, and Compton, Justices.
[Moore, Justice, not participating.]
MATTHEWS, Chief Justice.
This case involves a $100,000 life insurance policy
issued by Mutual Life Insurance Company of New York (MONY) on
November 30, 1983, to A. Lee Petersen, on the life of his
business associate Edward Burke. Burke died of a ruptured aorta
on May 23, 1984. Soon after Burke's death, Petersen submitted a
request for payment to MONY. On September 13, 1984, MONY
notified Petersen that his claim was denied because, according to
its investigation, Burke had failed to disclose in the policy
application that: 1) he had been treated for a self-inflicted
wrist wound; 2) he had been a member of the Alcoholics Anonymous
treatment program; and 3) he had been treated for chest pains.
On December 27, 1985, Petersen brought suit against
MONY in superior court, alleging breach of contract and tortious
bad faith. After trial, the jury returned a verdict in favor of
MONY. Petersen appeals raising five main issues.
I.
First, Petersen argues that the trial court erroneously
disallowed his pursuit of tort causes of action.
Specifically, Petersen contends that the trial court
committed reversible error by dismissing his bad faith causes of
action from the complaint upon MONY's motion for partial summary
judgment. He further contends that it was reversible error for
the trial court to deny his motion for leave to file a second
amended complaint that alleged seven tort theories, including bad
faith and negligence in MONY's handling of the insurance
application and subsequent claim. Last, Petersen argues that it
was reversible error for the trial court to prevent his pursuit
of tort causes of action by denying his motion to amend the
pleadings to conform to the evidence.
In denying Petersen's motion to amend the pleadings to
conform to the evidence, Judge Gonzalez reasoned that he had
heard insufficient evidence to support a cause of action for
negligence. Judge Gonzalez concluded that the case was solely a
breach of contract action.
Support for the denial of Petersen's tort claims is
found in the jury's special verdict, which states in relevant
part:
PART I
Is it more likely than not that
misrepresentations, omissions, concealment of
facts, or incorrect statements were knowingly
made in the application for insurance policy
on the life of Edward A. Burke, which were
material to the defendant's acceptance of the
risk and the insurer in good faith would not
have issued the policy?
YES X
NO
If the answer is "NO", you must
find for the plaintiff and make a finding
concerning damages in PART III.
If the answer is "YES"you must
answer PART II.
PART II
Is it more likely than not that the
material misrepresentations, omissions,
concealment of facts or incorrect statements
were the result of defendant's failure to
deal with plaintiff fairly and in good faith?
YES
NO X
(Emphasis added).
Hence, the jury found that misrepresentations,
omissions, concealment of facts, or incorrect statements were
knowingly made in the application and that such
misrepresentations were material to MONY's decision to accept the
risk and issue the policy. The jury further determined that the
misrepresentations were not due to any lack of fair dealing or
lack of good faith by MONY.
This factual determination is supported by the
evidence.1 It defeats any tort claims Petersen might have made.2
Any error in not allowing him to present his tort theories did
not prejudice him.
II.
Second, Petersen argues that evidence of Burke's
suicide attempt and alcoholism were not relevant and should not
have been admitted at trial. Petersen maintains that the
evidence was not relevant since: 1) Burke's death due to a
ruptured aorta was not causally related to his alleged suicide
attempt or alleged alcoholism; 2) MONY did not assume the risk of
death by suicide; and 3) MONY did not directly ask about suicide
attempts in the insurance application. We address each in turn.
First, assuming Burke's death was not related to his
suicide attempt or alcoholism, this would not render such
evidence irrelevant. The question is whether MONY would have
issued the policy if it were aware of the suicide attempt or
alcoholism. If such information would have altered the under
writing decision to accept the risk of Burke's death, it is
relevant to MONY's claim of rescission.3
The application process was sufficient to elicit facts
indicating Burke's alcoholism and suicide attempt, if Burke had
answered fully and truthfully. There is evidence that MONY would
not have issued a policy on Burke's life if it had been informed
of his alcoholism and suicide attempt. Hence, the evidence of
Burke's suicide attempt and alcoholism is relevant to MONY's
claim for rescission and was properly admitted by the trial
court.
Next, Petersen argues that evidence of Burke's suicide
attempt was not relevant because MONY did not assume the risk of
death by suicide. It is true that the policy contained an
exclusion in the event of a death by suicide within two years of
its issuance; however, this does not render the evidence of
attempted suicide wholly irrelevant.
It remains that if MONY had been apprised of the facts
involving the suicide attempt it claims that it would not have
issued the policy. MONY notes that the suicide exclusion does
not provide it complete protection. It would still run the risk
of a death by suicide after the two-year exclusion period.
Further, in the case of a death under suspicious circumstances
within two years, MONY would risk having to make payment of the
death benefit if it were unable to prove the death was a suicide.
It is not unreasonable to believe that MONY would not have
insured Burke's life had he truthfully answered the application
questions to reveal his treatment for the suicide attempt. The
suicide exclusion did not eliminate all risks assumed by MONY
that were related to death by suicide. Thus, evidence of Burke's
suicide attempt was relevant.
Third, Petersen maintains evidence of the suicide
attempt was irrelevant because MONY did not directly ask about
suicide attempts in the application. Although direct inquiries
about suicide were not made in the insurance application,
sufficient inquiries were made that if answered fully would have
revealed the suicide attempt. Burke was asked whether he had
been treated for mental or emotional trouble, or whether he had
experienced mental or nervous disorders. He was also requested
to list doctors and hospitals he had visited in the previous five
years.
In spite of these requests, Burke failed to reveal that
he was treated for a self-inflicted wrist wound at Humana
Hospital and had his wounds sutured by Dr. Dickey. Burke also
failed to reveal that he had an examination at Alaska Psychiatric
Institute and was seen by staff psychiatrist John Chatel as a
precaution after his suicide attempt. If Burke had been
truthful, the application questions were sufficient to bring his
attempted suicide to MONY's attention.
In light of the facts and circumstances set forth
above, we are not left with a definite and firm conviction that
the trial court erred in admitting the evidence of Burke's
suicide attempt or alcoholism.4
III.
Petersen, in cursory fashion, challenges the jury
instructions given by the trial court. In his brief, Petersen
does little more than cite his proposed instruction and state it
was not given, without any substantive legal argument to support
his assertions.
Where a point is not given more than a cursory
statement in the argument portion of a brief, the point will not
be considered on appeal. State v. O'Neill Investigations, Inc.,
609 P.2d 520, 528 (Alaska 1980); Fairview Development, Inc. v.
City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970) cert. denied,
402 U.S. 901 (1971). Hence, Petersen's asserted errors
concerning jury instructions should be deemed abandoned.
IV.
Petersen contends it was reversible error for the trial
court to deny his motion for a directed verdict. The proper
standard of review of a motion for a directed verdict is not to
weigh conflicting evidence or judge the credibility of the
witnesses, but is rather to determine whether the evidence, when
viewed in the light most favorable to the non-moving party, is
such that reasonable men could not differ in their judgment.
Dura Corp. v. Harned, 703 P.2d 396, 402 (Alaska 1985). The test
is objective; and if there is room for diversity of opinion among
reasonable people, the question is one for the jury. Further,
all favorable inferences are to be accorded the non-moving party.
Id.
The evidence here, viewed in the light most favorable
to the non-moving party, supports Judge Gonzalez' denial of
Petersen's motion for a directed verdict.
Here, Ms. Steele, MONY's field underwriter who handled
Burke's application, testified that Burke did not reveal his
history of chest pain5 even though chest pain was one of the
symptoms explicitly asked about in the application.
Further, there was evidence that Burke was a member of
Alcoholics Anonymous for eights years before applying for the
life insurance. Petersen himself testified that Burke described
himself as a recovering alcoholic. However, Ms. Steele testified
that she was not informed in the application process that Burke
was a member of Alcoholics Anonymous or that he may have been an
alcoholic, even though it was pertinent to questions on the
application.6
Last, there was evidence that Burke was treated for a
self-inflicted wrist wound at Humana Hospital where his wounds
were sutured by Dr. Dickey. The evidence shows that Burke was
further treated at Alaska Psychiatric Institute by Dr. Chatel.
In answering the pertinent application questions Burke did not
reveal the treatment related to his suicide attempt.7 In light
of the foregoing, viewed in the light most favorable to MONY, the
non-moving party below, we cannot say that Judge Gonzalez erred
in denying Petersen's motion for a directed verdict.
V.
Petersen argues it was error for the trial court to
exclude testimony by Burke's ex-wife on the issue of Burke's
alleged alcoholism. The court ruled that the relevant period of
time for evidence about Burke's use of alcohol was after 1975.
Since Burke's ex-wife divorced him in 1975, the court determined
her testimony about his alcohol use was too remote in time to be
relevant. In his main brief, Petersen raised no argument as to
why the trial court erred in excluding this testimony.8
Rather, Petersen raised this argument for the first
time on appeal in his reply brief. Since Petersen has failed to
argue this issue in his main brief, it is waived. Hitt v. J.B.
Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska 1982).
For the foregoing reasons, we AFFIRM.
_______________________________
1 See our discussion of the trial court's denial of
Petersen's motion for a directed verdict at IV, infra.
2 Any alleged bad faith on the part of MONY in handling the
claim (as opposed to issuing the policy) is rendered irrelevant
by the jury's finding that MONY would not have issued the policy
in the first place but for Burke's knowing and material
"misrepresentations, omissions, concealment of facts, or
incorrect statements"on the application. Petersen cannot now
complain about MONY's alleged bad faith in handling the claim
where it arose under a policy procured by activity which itself
amounts to bad faith. For the same reason, the jury's findings
defeat Petersen's claims of negligent processing of the
application, negligent processing of the claim, and breach of the
fiduciary duty created by the contract.
3 Materiality is defined by the risk assumed at the time the
policy is issued not by a hindsight causal analysis of the
subsequent death. See Wickersham v. John Hancock Mut. Life Ins.
Co., 318 N.W.2d 456, 458-59 (Mich. 1982); Robinson v. Reliable
Life Ins. Co., 569 S.W.2d 28, 30 (Tex. 1978) (en banc) (the
materiality of a misrepresentation must be viewed as of the time
of the issuance of the policy, rather than at the time the loss
occurred); Cohen v. Penn Mut. Life Ins. Co., 312 P.2d 241, 244
(Cal. 1957).
4 The standard for appellate review of a trial court's
decision on admissibility of evidence is whether the court abused
its discretion. Hutchins v. Schwartz, 724 P.2d 1194, 1197
(Alaska 1986); Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska
1985). We will find that a trial court abused its discretion
only "when we are left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
ruling." Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
5 MONY's investigation revealed, and Petersen does not
dispute, that Burke had been treated for chest pain by Dr.
Billings in October 1982, thirteen months before his application
for insurance was completed. In addition, Dr. David Henry
testified that Burke visited him on January 16, 1984, at which
time Burke complained of chest and shoulder pains and told Henry
that they had been going on intermittently for three or four
months.
6 Burke's responses to the pertinent questions are as
follows:
Part II, Question 3(m): "Have you
ever had any known indication of, or been
treated for . . . alcoholism or drug habit?"
Answer: "No"
Part I, Question 22(c): Has Burke
"during the past 5 years been treated by a
physician, counselor, psychologist, hospital
or clinic for mental or emotional trouble,
neurological disorder or the use of alcohol
or drugs?" Answer: "No"
(Emphasis added).
7 Part II, Question 2: "List all doctors,
clinics or hospitals you have visited in the
last 5 years for examination, treatment or
consultation."
Burke listed Norton Sound Medical Center and Dr. Billings, for
treatment of high blood pressure. He did not mention: 1) Humana
Hospital; 2) Dr. Dickey; 3) Alaska Psychiatric Institute; or 4)
Dr. Chatel.
Part I, Question 22(b): Has Burke
"during the past 5 years had any illness,
surgery or injury requiring treatment by a
physician, hospital or other medical
facility?" Answer: "No"
Part I, Question 22(c): Has Burke
"during the past 5 years been treated by a
physician, counselor, psychologist, hospital
or clinic for mental or emotional trouble,
neurological disorder, or the use of alcohol
or drugs?" Answer: "No"
8 Although in his main brief Petersen does mention that the
trial court refused to allow this testimony, he fails to advance
any legal argument as to why the court erred.
]]>
