MEMORANDUM OPINION & ORDER
Introduction
This is a diversity case
For the reasons that follow, Ramsey’s motion will be denied and Penn Mutual’s motion will be granted.
Facts
A. Background facts
Although the parties have raised and argued many facts, the relevant facts underlying the present action are contained in the supplemental joint stipulation of fact.
In February 2010, John Ramsey completed and signed an application for a life insurance policy with Penn Mutual.
Also included in the application was a so-called “good health” representation whereby Ramsey agreed that insurance would not be issued unless the first premium was paid in full, the policy was delivered, and his “health, habits, occupation and other facts” are “the same as desсribed” in the application, the medical examiner’s report attached, and in any subsequent amendments or supplements.
Based on the disclosure of colitis, Penn Mutual determined that additional information was needed before a policy could issue.
Virtually contemporaneous with this event, Ramsey was examined by Ian Lav-ery, M.D., the physician who had treated him for colitis in 1984,
Subsequent to these visits to Dr. Lav-ery, which were then unknown to Penn Mutual, Penn Mutual drafted amendments to Ramsey’s application for coverage.
Contemporaneously with or shortly after Ramsey’s execution of the application amendments, Penn Mutual thereupon completed delivery of separate policies for term life insurance and whole life insurance to Ramsey.
Ramsey’s wife, Barbara, filed an application for death benefits with Penn Mutual, which was denied.
B. Parties’ arguments
In its motion for summary judgment Penn Mutual argues first that a condition precedent to fоrmation of a valid contract of insurance was that Ramsey’s health be the same at the time the insurance policy was delivered as it was at the time of the application.
Alternatively, Penn Mutual asserts that any right to recover under these policies was precluded by statute when Ramsey willfully gave a false answer to the question in the application and the application amendment concerning whether he had indications of intestinal bleeding.
Ramsey, for her part, argues that John Ramsey’s answers on both the application and the application amendment were not false nor willfully intended to defraud, and further that Penn Mutual had knowledge of the actual situation and so cannot claim ignorance.
In essence, Ramsey asserts that John Ramsey had, and was known by Penn Mutual to have, chronic active colitis at the time he applied for the policies, at the time the policies were approved, and at the time the policies were delivered.
Analysis
A. Standard of review — summary judgment
The court should grant summary judgment if satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions answers to interrogatories, and admissions on file, together with affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.42 A fact is “material” only if its resolution will affect the outcome of the lawsuit.43 Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards.44 The court will view the summary judgment motion “in the light most favorable to the party opposing the motion.”45
The court should grant summary judgment if a party who bears the burden of proof at trial establishes each essential element of his case.
Once the moving party has satisfied its burden of proof, the burden then shifts to
In sum, proper summary judgment analysis entails the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
B. Applicаtion of standard — Penn Mutual’s motion will be granted
Preliminary to my analysis of the issues presented here, I note again that this is a diversity case, where Barbara Ramsey is a resident of Ohio, and Penn Mutual is a Pennsylvania corporation, and the amount in controversy exceeds $75,000.
That said, after consideration of the briefs and the transcript of the oral argument, I find that the question of whether Ramsey violated the policy’s so-called “good health” requirement, as understood in Ohio law,
1. Subject to the provisions of the temporary insurance agreement attached to this application, no insurance will be in force until the first premium is paid in full and the policy is delivered while the health, habits, occupation and other facts relating to the Proposed Insured(s) and to the Payor, if a Payor Benefit is issued, are the same as described in Part I of the application, any Part II required by the Company and any amendments or supplements to them.57
This provision is contained within an overall section which further states that the statements and answers of the application “will be part of the contract of insurance, if issued.”
I note first that the section of the application under which the provision appears is “Representations.”
To that end Ufer Trust quotes Ohio National Life Assurance Corp. v. Satterfield,
In addition, I also note that this provision does not involve application of Ohio Revised Code § 3911.06, which by its terms applies to false answers to the interrogatories in the application. As Ufer Trust concluded, “Ohio courts have held [§ 3911.06] does not apply when ‘[t]he stipulation upon which the [insurer] relies is in the policy.’ ”
In Langley, the proposed insured signed a life insurаnce application containing a provision, similar to the one here, that stated that the policy would not take effect unless the “health and habits of the Proposed Insured remain as stated in the application.”
In that context, the appeals court reviewed the trial court’s decision to grant summary judgment to the insurer. The court found that “deposition testimony of the decedent’s physicians, as well as his medical records, demonstrated that the decedent’s health had changed in the interim between his application for life insurance and the date the insurance was to take effect.”
In particular, the appeals court found that Langley signed an application on February 27, 1998, but then on April 21, 1998, saw a physician for an “on and off’ cough of two months’ duration, which visit was then followed by visits on April 25, May 11, and May 15, all of which showed a worsening progression in diagnosis from gastritis, to “concern” that Langley might have a malignancy, to performing a diagnostic bronchoscopy to investigate.
Based on the condition in Langley’s policy that his health remain as it was stated in the application, the court found that because Langley’s health had changed in the manner indicated above, the insurer could refuse payment since Langley had not complied with the policy’s terms.
Similarly, in Abella the Sixth Circuit dealt with a policy that contained a clause “specifying that the insurance would not take effect if the applicant’s health changed prior to the delivery of the policy.”
The proposed insured, Degracias Abella, M.D., had transmitted his revised applica
As the Sixth Circuit noted, Abella in the application had told the company he had not consulted a physician or had any medical test since 1992, except for an insurance physical.
As it happens, Abella did not have a cardiac condition. The June 15 x-ray disclosed signs of lung cancer, a condition of which, the court noted, Abella himself was probably unaware at the time.
In addition, the Sixth Circuit affirmed the district court’s rejection of the argument that the applicant must know the exact nature of a physical ailment from which he suffers or for which he has been treated before he is required to inform the insurer. “That Dr. Abella may have been concerned about a heart ailment and not about lung cancer did not relieve him of his obligation to update the answers given in his application for the policy.”
Applying the analysis of Langley and Abella in the present case, I find that Ramsey has also promised or represented as part of the insurance contract that his health would be the same as he represented it in the application and its amendment as it was at the time the policy was delivered, but that his health was not the same and Ramsey neglected to so inform Penn Mutual, thus permitting Penn Mutual to deny payment of benefits.
While Ramsey argues that his condition was a chronic condition, with regularly occurring symptoms, such that the 2010 visits to Dr. Lavery were “nothing new,!’
Just as in Abella, where the Sixth Circuit found a contractual duty in the proposed insured to correct or update the statement in the application that he had only undergone routine medical testing years earlier in connection with an insurance application with the factual disclosure that Abella had recently seen a cardiologist, worn a heart monitor, and received a chest x-ray, so too Ramsey was required by the representation in the contract that his health would be the same at delivery of the policy as it was at the time of application, to disclose that unlike the prior four years where his colitis had not required a visit to a physician, Ramsey had recently seen his treating physician twice in the space of a few weeks for the first time in years because his symptoms had become so severe as to mandate medical intervention.
Further, also as noted in Abella, Ramsey cannot escape this duty by claiming that he did not know the ultimate findings of thе tests conducted in 2010 before the policy was delivered. The contractual obligation to update his answer about the last time he needed or sought medical attention for his colitis, or risk rendering his prior statement untrue, was triggered
Penn Mutual’s decision not pay death benefits in February 2012&emdash;or nearly two years after the April and May 2010 visits to Dr. Lavery&emdash;while somewhat troubling since it came after John Ramsey’s death and so after he might have had some opportunity to craft alternative financial plans for his family had he known these рolicies were to be rescinded, does not preclude Penn Mutual from exercising its contractual rights. Section 9 of the general terms of the term life policy,
Because Ohio law construеs Ramsey’s death prior to the expiration of the two-year incontestability period as tolling that period,
Barbara Ramsey, understandably, seeks to avoid the serious consequences of losing all of John Ramsey’s insurance benefits by application of the “good health” clause in this policy by contending that John Ramsey did not believe his chrоnic condition had changed at all during the application process.
Having concluded as a matter of law that Penn Mutual properly denied coverage for death benefits under the policies, I also conclude as a matter of law that Penn Mutual did not act in bad faith by doing so.
Conclusion
Accordingly, for the reasons stated above, Penn Mutual’s motion for summary judgment is granted and that of Barbara Ramsey is denied. ■
IT IS SO ORDERED.
Notes
. ECF # 1, Ex. B. The matter was removed here after being initially filed in an Ohio court.
. The parties have consented to my exercise of jurisdiction. ECF # 7.
. ECF # 67 (Penn Mutual's motion), ECF # 69 (Ramsey’s motion).
. ECF # 68 (Penn Mutual's brief in support), ECF # 70 (Ramsey’s brief in support).
. ECF # 74 (Ramsey's opposition), ECF # 75 (Penn Mutual's opposition).
. ECF # 79 (Penn Mutual's reply), ECF # 80 (Ramsey's reply).
. ECF #81 (minutes of hearing), ECF #91 (hearing transcript).
. ECF #66.
. ECF #94.
. Id.
. Id. atH12.
. Id. atH13-
. Id., Ex. E.
. Id., Ex, D.
. Id., at ¶¶ 15, 16.
. Id., at ¶ 21; Ex. I.
. Id., at ¶ 2.
. Id., Ex. J at 2.
. Id., Ex. K.
. Id., at ¶¶ 30, 31.
. Id., at Exs. L, M.
. Id.
. Id., at ¶ 35. The policies were apparently delivered simultaneously with Ramsey’s execution of the application amendments on June 1, 2010. Id., Ex. R at 2 (February 27, 2012 letter from Penn Mutual to Barbara Ramsey stating, inter alia, that “On June 1, 2010 Mr. Ramsey signed the policy delivery receipt which included an application amendment.”). However, while the dates of issue for the policies are stipulated to be March 8, 2010 and April 22, 2010, Id., at ¶35, the parties do not stipulate as to the date the policies were delivered, but only to the fact that the application amendment was drafted “prior to the delivery of the policies.” Id., at ¶ 34.
. Id., Ex. O at 2.
. Id. at ¶ 39.
. Id. at ¶ 45.
. Id. at ¶ 46.
. Id., Ex. R.
. Id.
. ECF # 1.
. ECF #68 at 9.
. Id. at 10-11.
. Id. at 12.
. Id. at 13.
. Id. at 14-15.
. ECF # 70 at 1.
. Id. at 8-10.
. Id. at 14-16.
. Id. at 18.
. Id. at 18-20.
. Fed.R.Civ.P. 56(c).
. Celotex Corp. v. Catrett,
. Anderson v. Liberty Lobby,
. Id. at 252,
. U.S. v. Diebold, Inc.,
. McDonald v. Petree,
. Leadbetter v. Gilley,
. Id. at 256,
. Cox v. Kentucky Dept. of Transp.,
. Anderson,
. BDT Prods. v. Lexmark Int’l,
. Anderson,
. ECF # 1 at 2 (brief in support of removal) (citing 28 U.S.C. § 1332).
. Erie R.R. Co. v. Tompkins,
. Id.
. The parties havе not indicated that the insurance contracts here contain a choice of law provision, and I have not found such a provision in my own review of the contracts. In a situation, as here, where the parties have not chosen which law to apply to any dispute concerning their contract, Ohio law has adopted Section 188 of the Restatement, which requires the court to consider the place of making the contract; the place of negotiating the contract; the place of performance; and the domicile, residence, nationality, place of incorporation, and place оf business of the parties to determine which state has the most significant relationship to the transaction and the parties; and then to apply the law of that state. Ohayon v. Safeco Ins. Co. of Illinois,
In this case, the contract was both negotiated and made in Ohio. The insured lived in Ohio as does his beneficiary. Further, as a contract of insurance made and delivered in Ohio, the contract here was subject to review by the Ohio superintendent of insurance before it was permitted to be delivered, with that review going to questions of whether its terms were unjust, unfair or against state law. Ohio Rev.Code § 3911.011(B). Manifestly, on these points, the conclusion is inescapable that Ohio and its laws demonstratе "the most significant relationship to the transaction and the parties.” See, Ohayon,
. EOF #94, Ex. D at 11.
. Id.
. Id.
. EOF # 68 at 9.
. John Hancock Life Ins. Co. v. The William R. Ufer, Sr., Irrevocable Trust, No. 3:11-CV-2344,
. Id., at *4.
. Id.
. Id.
. Ohio Nat’l Life Assurance Corp. v. Satterfield,
. Satterfield,
. Id. (citing Mumaw v. Western & Southern Life Ins. Co.,
. Id.
. Ufer Trust,
. Langley v. Federal Kemper Life Assurance Co., No. 1 AP-129,
. Id., at *3 (quoting Aetna Life Ins. Co. of Hartford, Conn. v. Dorney,
. Id. While the foregoing fully establishes that Ohio Rev.Code § 3911.06 does not apply when the insurer’s defense is based, on a failure to comply with a stipulation or represen- ■ tation contained in the policy contract, 1 also note briefly that Penn Mutual’s reliance on Stipcich v. Metropolitan Life Ins. Co.,
. In Ohio, "[w]hen the facts presented are undisputed, whether they constitute a performance or a breach of a written contract is a question of law for the court.” Luntz v. Stern,
. Abella v. Jackson Nat'l Life Ins. Co., No. 97-3498,
. Langley,
. Id.
. Id.
. Id., at*l.
. Id.
. Id.
. Id., at *4. The court also upheld the decision of the trial court that Ohio Rev.Code § 3911.06 was “inapplicable” to the case.
. Abella,
. Id.
. Id., at *2.
. There was, apparently, an issue as to precisely when delivery occurred. The policy was dated June 16, 1993, and Abella merely establishes that delivery could not have been prior to June 16. See, id., at *3.
. Id., at *3.
. Id.
. Id. at *5.
. Id.
. Id.
. Id. at *3.
. Id.
. Id. at *5.
. Id.
. ECF # 74 at 17.
. The Ohio appeals court in Satterfield makes the distinction that the "good health” clause does not so much impose an affirmative duty on the insured to update his answers, but rather imposes a burden оn the insurer to prove within the time provided by an incontestability provision, if any, that an answer no longer remained true, thus establishing a reason to deny payment of benefits. Satterfield,
. ECF#1, Ex. 2.
. Id. at 8. The identical language also appears in Section 15 of the general terms of the whole life policy. ECF # 1, Ex. 2.
. Id. at 3, 9; see also, ECF # 94 (stipulations) at ¶ 35.
. ECF #94 at ¶ 35.
. Ramsey died on September 20, 2011, or • just over a year after both policies went into effect. ECF #94 at ¶ 45.
. There does not appear to be any question in Ohio as to the enforceability of the incontestability provision here. First, Ohio statutory law itsеlf mandates that all insurance policies sold and delivered in Ohio contain the clause at issue here. Ohio Rev.Code § 3915.05. Finally, as the Ohio appeals court noted in the analogous case of Ginley v. John Hancock Mut. Life Ins. Co.,
. ECF # 94, Ex. R (Penn Mutual letter of February 27, 2012).
. ECF #70 at 18.
. ECF #74 at 16-17.
. Abella,
. Id.
. Penn Mutual argues that a proctoscopy is "the same type of procedure as a colonosco-py,” ECF # 68 at 16 n. 5, thus, arguably, calling into question Ramsey’s duty to update his answer in the original application that he had not had a colonoscopy since 2004. However, since Penn Mutual does not contend that a proctoscopy is precisely the same thing as a colonoscopy, and under the reasoning stated above, since this issue need not be addressed, I make no findings.
.Penton Media, Inc. v. Affiliated FM Ins. Co.,