North American Company for Lif v. Grace Hoh

Filing 920090618

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1931

NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiff - Appellee, v. GRACE M. HOH, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:07-cv-01693-CMC)

Submitted:

April 28, 2009

Decided:

June 18, 2009

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

S. Jahue Moore, Sr., William H. Edwards, MOORE, TAYLOR & THOMAS, PA, West Columbia, South Carolina, for Appellant. David F. Schmidt, CHITTENDEN, MURDAY & NOVOTNY, LLC, Chicago, Illinois, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Grace Hoh appeals the district court's grant of

summary judgment to North American Company for Life and Health Insurance ("North American") on its action seeking a declaration that a life insurance policy issued to Hoh's husband, William Hoh, was void or unenforceable. Hoh contends that the district

court erred in granting summary judgment, as genuine issues of material fact exist as to when her husband accepted the policy and whether her husband was covered by the policy. Hoh also

raises a claim of judicial bias on the part of the district court judge. We affirm.

We review de novo a district court's order granting summary judgment and view the facts in the light most favorable to the nonmoving party. (4th Cir. 2005). Bogart v. Chapell, 396 F.3d 548, 555 judgment is appropriate when no

Summary

genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 56(c). A federal court sitting in diversity must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor In South Carolina, See Fed. R. Civ. P.

Elec. Mfg. Co., 313 U.S. 487, 496 (1941).

all insurance contracts covering property, lives, or interests in South Carolina are to be interpreted by applying South

Carolina substantive law.

S.C. Code Ann. § 38-61-10 (2002); 2

Sangamo Weston, Inc. v. National Sur. Corp., 414 S.E.2d 127, 130-31 (S.C. 1992). South Carolina courts employ general rules

of contract construction when interpreting insurance policies. See Century Indem. Co. v. Golden Hills Builders, Inc., 561

S.E.2d 355, 358 (S.C. 2002). ordinary, and popular

Thus, courts will attach "plain, to policy language. B.L.G.

meaning"

Enters., Inc. v. First Fin. Ins. Co., 514 S.E.2d 327, 330 (S.C. 1999). "[I]nsurers have the right to limit their liability and

to impose conditions on their obligations provided they are not in contravention of public policy or a statutory prohibition." Id. Though coverage exclusions found within an insurance policy

are to be construed against the insurer, see id., a court's duty "is limited to the interpretation of the contract made by the parties themselves regardless of its wisdom or folly, apparent unreasonableness, or [the parties'] failure to guard their

rights carefully," C.A.N. Enters., Inc. v. S. C. Health & Human Servs. Fin. Comm'n, 373 S.E.2d 584, 587 (S.C. 1988) (internal quotation marks and citation omitted) It is clear that North American imposed one such

condition upon its life insurance obligations to the Hohs: that any policy issued as a result of the application submitted by William Hoh would not take effect "until the full first premium is paid and the contract is delivered to and accepted by the Owner during the lifetime of any person proposed for insurance 3

and while such person is in the state of health described in all parts of this application." (emphasis added). Thus, in order

for William Hoh to be covered under the terms of the insurance contract, accepted the by contract while must he have in been the delivered same state to of Hoh and

him

was

health

described in the insurance application. Though the Appellant contends that William Hoh was in the same "state of health" on April 15, 2006, when he accepted the policy, as he described in the application on February 3, 2006, this contention is belied by the record. When Hoh filled

out his medical history on February 3, 2006, he indicated that he had never suffered from dizziness, shortness of breath, or chest pain. anemia or He also noted that he had never suffered from disorders. (J.A. 23). During his medical

blood

examination, blood was drawn, and no irregularities were noted. However, doctor complaining on of April chest 7, 2006, William Hoh of visited a

pain,

shortness

breath,

and

dizziness.

Subsequent blood tests revealed an extremely low

hemoglobin level, which doctors believed signified an underlying bone marrow disorder. From April 13 through April 14, 2006, Hoh

underwent various cardiology tests and a bone marrow aspirate. As a result of these tests, Hoh was diagnosed with

myelodysplastic syndrome on April 20, 2006. clear that on April 14, 2006, 4 the day

Therefore, it is William Hoh

before

accepted

the

insurance syndrome,

policy, and his

he

was state

suffering of health

from had

myelodysplastic

significantly changed from that described in the application. Although Appellant argues that there is some question as to the date on which the policy was "delivered" to William Hoh, it is undisputed that William Hoh accepted the Policy on April 15, 2006, the day he completed and signed the amendment and Statement of Health. As the evidence is clear that William

Hoh's health had significantly changed between February 3, 2006, and April 15, 2006, the contract, by its own terms, did not take effect upon Hoh's April 15, 2006 acceptance, by a failure of a condition precedent. Accordingly, we find Appellant's first

issue to be without merit. We review questions of judicial bias de novo. People

Helpers Foundation, Inc. v. City of Richmond, Va., 12 F.3d 1321, 1325 (4th Cir. 1993). where "a person with A judge must recuse herself in instances knowledge of the relevant United facts might v.

reasonably

question

[her]

impartiality."

States

Cherry, 330 F.3d 658, 665 (4th Cir. 2003).

However, a judge

need not recuse herself due to "unsupported . . . highly tenuous speculation." Cir. 1998) United States v. DeTemple, 162 F.3d 279, 287 (4th quotation marks and citation omitted).

(internal

Here, Appellant argues that the judge's daughter's prospective employment with one of the firms representing North American 5

provides

a

reasonable

basis

to

question

the

judge's

impartiality.

However, we find that this is nothing more than

the sort of "highly tenuous speculation" that fails to merit recusal. Therefore, this issue too is without merit. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

6