Gary v. USAA Life Insurance Company

Filing 40

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 1/17/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
ROBERT GARY,

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Plaintiff,

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v.

Case No.: PWG-15-1998
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USAA LIFE INSURANCE CO.,
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Defendant.
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MEMORANDUM OPINION
When the Plaintiff, Colonel Robert Gary, made a claim for benefits under a life insurance
policy (the “Policy”) that Defendant USAA Life Insurance Co. (“USAA Life”) had issued to his
wife Angela Maddox-Gary less than two years earlier, USAA Life denied his claim because Ms.
Maddox-Gary had made a misrepresentation in the medical questionnaire interview (“Medical
Questionnaire”) that was part of the application process for the Policy. Gary filed suit against
USAA Life to recover benefits under the Policy. USAA Life moved for summary judgment,
insisting that Ms. Maddox-Gary’s misrepresentation was material and therefore provided a basis
for USAA Life to rescind the Policy. Def.’s Mot., ECF No. 29; Def.’s Mem. 5, ECF No. 29-1.
Gary filed a cross-motion for summary judgment, ECF No. 32, admitting that Ms. Maddox-Gary
made the misrepresentation but arguing that, “[u]nder the applicable statutes, USAA Life is
precluded from declaring Ms. Maddox-Gary’s policy void because of failure to disclose an
Echocardiogram.” Pl.’s Opp’n & Mem. 4, ECF No. 32-2.1 He also contends that the Medical
Questionnaire is not part of the application but rather inadmissible hearsay that could not alter

1

The parties fully briefed the motions, ECF Nos. 29-1, 32-2, 33, 34, and submitted a Joint
Record with their exhibits, ECF No. 36. A hearing is not necessary. See Loc. R. 105.6.

the written application, id. at 5, 8, and that the misrepresentation was not material, id. at 14.
Additionally, Gary argues that the Court should exclude testimony from one of USAA Life’s
principal underwriters, Tammy Koenig.

Id. at 16.

Gary has not established grounds for

excluding the evidence, and the Medical Questionnaire is a part of the application. Moreover,
Ms. Maddox-Gary’s misrepresentation, which was material, indeed provides a basis for
rescission. Accordingly, I will grant USAA Life’s motion and deny Gary’s.
Standard of Review
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).

If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 & n.10
(1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Instead, the
evidentiary materials submitted must show facts from which the finder of fact reasonably could
find for the party opposing summary judgment. Id.
Preliminary Matters
On a motion for summary judgment, “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
2 

Fed. R. Civ. P. 56(c)(2). To establish that the decedent made a misrepresentation and that the
misrepresentation was material, USAA Life relies in part on the Medical Questionnaire, as well
as Koenig’s affidavit and deposition testimony. Gary challenges the insurer’s ability to present
the facts it introduces through these documents as admissible evidence.
Admissibility of Medical Questionnaire
Gary notes that Ms. Maddox-Gary completed the Medical Questionnaire, Jt. Rec. 28–31,
in a telephone interview that “an unidentified third party” conducted, for which her answers were
not recorded verbatim, and which she did not see in written form before the Policy issued. Pl.’s
Opp’n & Mem. 6–8. Gary argues that, although it is “authentic as part of USAA Life’s business
records . . . , there is incurable hearsay within the document that render[s] the entire document
inadmissible.” Id. at 5. He insists that “the truthfulness of the information within the document
cannot be presumed absent authentication by the interviewer or the opportunity by Ms. MaddoxGary to review and adopt the written answers.” Id.; see Pl.’s Reply 6 (arguing that under Fed. R.
Evid. 803(6), the Medical Questionnaire “qualifies as inadmissible hearsay as it lacks
trustworthiness”).
Yet, as USAA Life correctly asserts, Ms. Maddox-Gary’s statements “are not hearsay
because USAA does not offer her statements to establish the truth of her assertion that she did
not have diagnostic procedures, but rather . . . to establish that the statement was made.” Cover
Page to Jt. Ex. 1, ECF No. 36, at 4. In essence, USAA contends that the document is offered not
to prove the truth of the assertions it contains, but rather to show what USAA did in response to
having received and relied on those statements (i.e., it issued the policy at the lower premium
rate than it would have required had it known the actual facts). A hearsay statement is one made
outside of the current court proceeding and that “a party offers in evidence to prove the truth of
3 

the matter asserted in the statement.” Fed. R. Evid. 801(c)(2). This case focuses on Ms.
Maddox-Gary’s misrepresentation in the Medical Questionnaire; if what she said were true, or if
USAA Life believed that it was true, then USAA Life would not have rescinded the Policy based
on her statement, and this case would not be before me. And, because the statement was not
true, but USAA mistakenly thought that it was when it issued the policy, it is, so to speak,
offered for its non-truth—the antithesis of hearsay. Thus, the misrepresentation is not offered for
its truth and simply cannot be hearsay, and is not inadmissible on that ground. See id.
The only other contents of the Medical Questionnaire on which USAA Life relies, see
Def.’s Mem. 2, are the text of Question 8.a, as it appeared in the Medical Questionnaire and in
the transcript of Ms. Maddox-Gary’s interview, which also is not offered for its truth, and Ms.
Maddox-Gary’s response that she had her finger x-rayed, which is not disputed. Therefore,
insofar as USAA Life relies on the contents of the Medical Questionnaire, Gary’s objection that
it is inadmissible hearsay is overruled for purposes of this summary judgment analysis. See Fed.
R. Evid. 801(c)(2).
Admissibility of Koenig’s Statements
Gary argues that “[t]he nature of Ms. Koenig’s testimony as well as the skill required to
conduct her investigation clearly demonstrate that she should have been disclosed as an expert
under Red. R. Civ. P. 26(a)(2)(B),” and because USAA Life did not disclose her as an expert
witness, her opinion testimony on whether the decedent made a material misrepresentation is
inadmissible. Pl.’s Opp’n & Mem. 16. According to Gary, Koenig testified at her deposition
that “she was not involved [in] nor did she have personal knowledge of the application []or the
underwriting process of the life insurance policy at issue,” and that “her involvement in this
matter was solely to render an opinion on the final issue in this matter.” Id. at 17.
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USAA Life responds that Koenig is not an expert witness and that her “testimony is not
‘opinion’ testimony.” Def.’s Reply & Opp’n 13. In its view, Koenig testified that she input
results from Ms. Maddox-Gary’s undisclosed echocardiogram into a calculator that “then
determined the future risk demonstrated by those measurements.” Id. at 13–14. USAA Life
insists that Koenig did not exercise her judgment in the process. Id. Alternatively, USAA Life
argues that, if her testimony were opinion testimony, it would be admissible lay opinion
testimony under Fed. R. Evid. 701. Id. at 14. Defendant asserts that “[t]he testimony USAA
intends to elicit from Ms. Koenig is based on her personal knowledge of the circumstances
surrounding USAA’s decision to rescind the life insurance policy at issue in this case . . . .” Id.
at 15.
In Gary’s view, “while simply plugging in numbers to a calculator may not require any
skill, this was just a small step in the much larger process which le[]d Ms. Koenig to her
conclusion, a process which clearly requires the ability of an expert.” Pl.’s Reply 4. He
contends that Koenig “was able to read through Ms. Maddox-Gary’s medical records and
‘interpreted’ Dr. Shakoor’s notes to determine that an echocardiogram had been scheduled.” Id.
Koenig testified that she “offered an opinion” with regard to the decedent’s Policy “[a]t
the time of contestable claim review,” after USAA Life had issued the Policy. Koenig Dep.
5:17–24, Jt. Rec. 80. She stated that, after “review[ing] the information obtained during the
contestable claim review,” it was her opinion “[t]hat there was misrepresentation and that the
policy would not have been issued at the risk class it was issued.” Id. at 7:21–8:4, Jt. Rec. 80;
see id. at 17:17–20, Jt. Rec. 83. She testified that Ms. Maddox-Gary’s failure to disclose her
echocardiogram was “material because it changes her policy rating.” Id. at 37:7–13, Jt. Rec. 88.
She acknowledged that she used her “knowledge and experience as an underwriter in making this
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determination.” Id. at 8:5–15, Jt. Rec. 80. According to Koenig, she was testifying from her
personal memory as well as her contemporaneous notes. Id. at 21:13–23, Jt. Rec. 84.
Similarly, in her affidavit, Koenig explained how she “conduct[ed] the contestability
review of the claim made on the policy of life insurance issued to Angela Maddox-Gary,”
including reviewing medical records and entering data into a calculator “[t]o determine whether
the results of [an] echocardiogram had any significance for underwriting purposes.” Koenig Aff.
¶¶ 2–9, Jt. Rec. 100–01. She stated:
Had USAA Life known of the echocardiogram results at the time that it was
originally underwriting the policy, Ms. Maddox-Gary would not have been
offered the policy at the preferred rate. Rather, the rate would have been 100 –
150% of the rate that she paid, based upon the Swiss Re Left Ventricular Mass
Calculator.
Id. ¶ 10.
Federal Rule of Evidence 701 provides that a lay witness may provide testimony that is
“rationally based on the witness’s perception,” “helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,” and “not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” In United States v. Roe, 606 F.3d 180 (4th
Cir. 2010), the Fourth Circuit reiterated its observation of the blurred line between Rule 701 and
Rule 702 testimony from United States v. Perkins, 470 F.3d 150, 155–56 (4th Cir. 2006):
We have previously recognized that the distinction between lay and expert
testimony “is a fine one” and “not easy to draw.” In describing this tension, we
have observed:
While we have noted that a critical distinction between Rule 701
and Rule 702 testimony is that an expert witness must possess
some specialized knowledge or skill or education that is not in
possession of the jurors, we also have acknowledged that the
subject matter of Rule 702 testimony need not be arcane or even
especially difficult to comprehend. The interpretive waters are
muddier still: while lay opinion testimony must be based on
personal knowledge, expert opinions may also be based on first
hand observation and experience.
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Roe, 606 F.3d at 185–86 (quoting Perkins, 470 F.3d at 155–56 (internal quotation marks
omitted)). In Perkins, the Fourth Circuit observed that the addition of subsection (c) “did not
work a sea change to the rule,” but rather “‘serves more to prohibit the inappropriate admission
of expert opinion under Rule 701 than to change the substantive requirements of the
admissibility of lay opinion.’” Id. at 155 & n.8 (quoting United States v. Garcia, 291 F.3d 127,
139 n.8 (2d Cir. 2002)).
In Roe, 606 F.3d 180, in appealing his conviction, Roe argued that the district court
should not have allowed the Government’s witness Sergeant Russell, who had not been
designated or qualified as an expert, “to testify about the authority possessed by the holders of a
Maryland private detective and security guard certification and a handgun permit” because, in
Roe’s view, “Sergeant Russell’s testimony constituted ‘expert’ testimony.” Id. at 185. The
Fourth Circuit disagreed with Roe, concluding that “the district court did not err in admitting
[Sergeant Russell’s testimony] as lay testimony.” Id. It reasoned:
Sergeant Russell was in charge of the unit that issues handgun carry permits, as
well as security guard and private detective certifications in Maryland. He was
qualified to testify as to the requirements for getting such permits and
certifications and to state what possessing those permits permitted an individual to
do based on his personal knowledge acquired in that capacity. Such knowledge
was not “specialized knowledge” in the Rule 702 sense, and does not constitute
expert testimony. Instead, it falls under Rule 701’s description of lay testimony,
being “rationally based on the perception of the witness” and helpful to the jury’s
“determination of a fact in issue.”
Id. at 185–86 (quoting Perkins, 470 F.3d at 155–56 (internal quotation marks omitted)).
MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir. 1990),2 also
provides guidance.

There, the defendant offered Lillian Harrison, the accountant for a

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Some care needs to be taken when citing cases discussing the scope of Rule 701 that were
issued before 2000. Prior to the amendments to the rule in 2000, there were only two elements
required to admit lay opinion testimony. It had to be rationally based on the witness’s
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corporation with which the defendant worked, as a lay witness to testify about the corporation’s
profits. The Fourth Circuit concluded that the district court erred in ruling that Harrison’s
testimony “constituted expert testimony” and that, because she was not designated as an expert,
her testimony was inadmissible. The appellate court reasoned:
In ruling Harrison’s testimony inadmissible, the district court failed “to
distinguish between opinion testimony which may be introduced by lay witnesses
and that which requires experts.” “The modern trend favors the admission of
opinion testimony, provided that it is well founded on personal knowledge [as
distinguished from hypothetical facts] and susceptible to specific crossexamination. A lay witness in a federal court proceeding is permitted under Fed.
R. Evid. 701 to offer an opinion on the basis of relevant historical or narrative
facts that the witness has perceived.”
MCI Telecomms., 897 F.2d at 706 (quoting Teen–Ed, Inc. v. Kimball International, Inc., 620
F.2d 399, 403 (3d Cir.1980) (citing 3 J. Weinstein, Evidence, ¶ 701[02] at 701–9 and 701–17
(1978))) (footnote omitted).
The Fourth Circuit compared the facts before it to those in Teen–Ed, where
the party’s accountant, even though . . . not identified before trial as an expert
witness under Rules 702 and 703, was permitted to testify as a lay witness on the
basis of facts and data perceived by him in his capacity as an accountant and
bookkeeper and to submit a projection of profits based on such records.
Id. The court concluded that the facts were “substantially” the same, observing:
Harrison was the bookkeeper. She was testifying on the basis of records kept by
her personally under her control, and her projection of profits under the lease as
prepared by her was predicated on her personal knowledge and perception. As
such she was a lay witness, whose identification as an expert witness under Rules

perception, and helpful to the factfinder. See Garcia, 291 F.3d at 139 & n.8; Fed. R. Evid. 701
(1987). In 2000, the third element was added, requiring that in addition to the original two
elements, the lay witnesses’ opinion could not be based on scientific, technical or specialized
knowledge “within the scope of” Rule 702 (the expert witness rule). This further circumscribed
the type of opinions that a lay witness could offer. But, as noted, the line separating lay and
expert opinion is not so easy to distinguish and the intent of the 2000 amendment was not to
“work a sea change to the rule.” Perkins, 470 F.3d at155 n.8. Accordingly, pre-2000 cases
discussing the scope of Rule 701 still have value in determining the kinds of opinion testimony
traditionally thought not to be “within the scope” of the expert witness rule, Rule 702.
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702 and 703 was not required. That was precisely what was held in Teen–Ed and
we agree. The district judge erred in refusing to permit Harrison to testify.
Id.; see also United States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 455 (4th Cir. 2011)
(concluding that witness’s testimony was admissible lay testimony where witness was owner of
financial planning and tax accounting business who “provided accounting services to IIF, and . . .
also worked with IIF on its application to secure [a] contract” and he “testified generally about
how the GSA contracting process worked and about his efforts to held IIF obtain [that] contract
. . . . based on his personal knowledge and understanding of the contracting system that was
derived from his years of experience with government contracting”).
Here, Koenig, who “review[s] about one or two [contestable claims] a month” for USAA
Life, Koenig Dep. 21:20–23, Jt. Rec. 84, describes how contestable claim review works, her role
in the process, and her role in the review of the decedent’s Policy in particular. This lay
testimony that is based on Koenig’s personal knowledge and experience working for USAA Life
and on this claim clearly is admissible under Rule 701. See Ubl, 650 F.3d at 455; MCI
Telecomms., 897 F.2d at 706; Roe, 606 F.3d at 185–86. She is not applying “principles and
methods to the facts of the case,” see Fed. R. Evid. 702(d), but rather recounting her previous
application of certain procedures to explain how USAA Life reached its decision to rescind the
decedent’s Policy. See United States v. Lloyd, 645 F. App’x 273, 280 (4th Cir.), cert. denied,
137 S. Ct. 213 (2016) (expert testimony is testimony from a witness “qualified by ‘knowledge,
skill, experience, training, or education,’” and it is testimony “‘based on sufficient facts or data’
produced by reliable principles and methods that have been reliably applied to the facts of the
case” (quoting Fed. R. Evid. 702(a)-(d)) (emphasis added)). Moreover, her opinion on how
knowledge of Ms. Maddox-Gary’s echocardiogram results would have changed the rate she
received on her Policy is admissible as lay opinion testimony based on Koenig’s personal
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knowledge—not of the decedent’s original application process but rather of the contestable claim
review process—and Koenig’s participation in USAA Life’s business on a day-to-day basis.
See Ubl, 650 F.3d at 455; MCI Telecomms., 897 F.2d at 706; Roe, 606 F.3d at 185–86; Columbia
Gas Transmission LLC v. Tri-State Airport Auth., No. 14-11854, 2016 WL 1737120, at *4 (S.D.
W. Va. May 2, 2016) (concluding that it had properly admitted lay opinion testimony where the
witness was “explaining why he removed organic material” and his testimony was “based on
knowledge and participation in the day to day affairs of slope repair work”).
Certainly, Koenig later testified that, in her opinion, when the decedent “simply
reveal[ed] that she had a physical,” her statement “did not indicate that she may have had an
EKG or echocardiogram.” Koenig Dep. 34:1–10, Jt. Rec. 87. And she testified that, in her
opinion, Ms. Maddox-Gary knew what an echocardiogram was. Id. at 34:24 – 35:16, Jt. Rec. 87.
This opinion testimony is not based on Koenig’s personal knowledge and is inadmissible, and I
will not consider it in ruling on the pending motion.3 See Fed. R. Evid. 701, 702.

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Plaintiff also argues that Koenig’s affidavit cannot be considered because USAA failed to
disclose Koenig’s opinions as required by Fed. R. Civ. P. 26(b)(2)(B). Pl.’s Opp’n & Mem. 16.
Plaintiff is mistaken, because Rule 26(b)(2)(B) only requires disclosure of opinions and their
bases from those witnesses “retained or specially employed to provide expert testimony in the
case or one whose duties as the party’s employee regularly involve giving expert testimony.”
But, as already discussed, Koenig’s affidavit is offered under Rule 701, not Rule 702, and Rule
26(b)(2)(B) disclosures are not required from witnessed providing lay opinion testimony.
Plaintiff does not argue that USAA should have disclosed Koenig’s lay opinions under Rule
26(b)(2)(C), but that rule, too, applies only to opinions expressed under Rule 702, 703, or 705,
not 701. Thus, there was no failure by USAA to make disclosures required by Rule 26(a)(2).
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Factual Background4
On December 11, 2012, Angela Maddox-Gary completed and electronically signed a
written application for a life insurance policy from USAA Life. Jt. Stmt. of Facts, Def.’s Mem.
1; see also Pl.’s Opp’n & Mem. 1; Written Application, Jt. Rec. 22–26. Then, “[a]s part of the
application process, Ms. Maddox-Gary participated in a verbal recorded medical questionnaire”
on December 14, 2012. Jt. Stmt. of Facts, Def.’s Mem. 1; see also Pl.’s Opp’n & Mem. 1. To
complete the questionnaire, Ms. Maddox-Gary answered questions in a phone interview
conducted by a third party, and the interviewer input her responses into “some software” that
“created” the Medical Questionnaire. Koenig Dep. 15:5–8, 27:16 – 28:24, Jt. Rec. 82, 85. The
interviewer did not record Ms. Maddox-Gary’s responses verbatim. Id. at 27:16 – 29:10, Jt. Rec.
85–86. Ms. Maddox-Gary answered questions “to the best of [her] knowledge.” Interview Tr.
26, Jt. Rec. 68. She verbally signed, but did not read, the Medical Questionnaire before USAA
Life issued the Policy. Koenig Dep. 29:11–23, Jt. Rec. 86; see Med. Questionnaire, Jt. Rec. 28–
30; see also Interview Tr. 3, Jt. Rec. 45. USAA Life attached the completed Medical
Questionnaire to the Policy and viewed it as “part of the application.” Med. Questionnaire, Jt.
Rec. 30; see also Interview Tr. 2, Jt. Rec. 44 (stating that interviewer was “gathering the required
information regarding [Maddox-Gary’s] medical history and lifestyle in order to complete [her]
insurance application” and “[a]s part of this process [the interviewer] need[ed] to ask [her]
questions and record [her] answers for the USAA underwriting department”).

4

Because the parties filed cross-motions for summary judgment, “‘each motion [is] considered
individually, and the facts relevant to each [are] viewed in the light most favorable to the nonmovant.’” Lynn v. Monarch Recovery Mgmt., Inc., No. WDQ-11-2824, 2013 WL 1247815, at *1
n.5 (D. Md. Mar. 25, 2013) (quoting Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003)).
Although Gary challenges the admissibility of the Medical Questionnaire and Koenig’s opinion
testimony, neither party contests the facts presented in the opposing briefs. 
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In the interview, Ms. Maddox-Gary stated that she had “a heart murmur” that was
diagnosed “[w]hen [she] was six years old,” that she had no “symptoms or problems experienced
with the murmur,” and that it did not cause shortness of breath or limit her physical activities.
Interview Tr. 10–12, Jt. Rec. 52–54. As part of the interview, she was asked Question 8.a:
“Have you in the past five years had an electrocardiogram, x-ray or any other diagnostic test or
procedure not previously discussed?” Interview Tr. 19, Jt. Rec. 61. Ms. Maddox-Gary stated that
she “had an x-ray on [her] finger,” id., but when asked “Any other diagnostic test or procedure,”
she answered “No,” id. at 21, Jt. Rec. 63. On the Medical Questionnaire, next to the question,
““Has any insured, within the last five years: a. had an electrocardiogram, X-ray or any other
diagnostic test or procedure that was not previously disclosed?” the box “Yes” was checked.
Med. Questionnaire, Jt. Rec. 29. The continuation sheet indicated that she had an “X-RAY”
taken of her “FINGER.” Id., Jt. Rec. 31. Ms. Maddox-Gary did not reveal at that time, or earlier
in the interview, that she had an echocardiogram on January 31, 2011. Interview Tr., Jt. Rec.
44–72; Koenig Aff. ¶¶ 4–5, Jt. Rec. 100, Echocardiogram Rpt., Jt. Rec. 107–08.
USAA Life issued a policy of life insurance to Ms. Maddox-Gary, effective
February 1, 2013. The policy was issued in the amount of $100,000.00, and
provides for interest from the date of death at the legal rate, which is 6% per
annum. The policy issued to Ms. Maddox-Gary was offered at the preferred rate.
Ms. Maddox-Gary died December 27, 2013, while within the two-year
contestability time-period under the policy. At the time of Ms. Maddox-Gary’s
death, the policy was in force and the premium paid. The Medical Examiner’s
Report recorded the cause of death as related to ischemic heart disease. The
beneficiary under the policy, Robert Gary, made a timely claim for benefits.
Jt. Stmt. of Facts, Def.’s Mem. 1–2; see also Pl.’s Opp’n & Mem. 1–2.
USAA Life directed one of its principal underwriters, Tammy Koenig, to “perform[] an
investigation during the contestability period.” Jt. Stmt. of Facts, Def.’s Mem. 2; see also Pl.’s
Opp’n & Mem. 2; Exhibit 4, Koenig Aff. ¶ 2, Jt. Rec. 100. Through the investigation, in which

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USAA Life obtained Ms. Maddox-Gary’s medical records, including the results of the
decedent’s January 31, 2011 echocardiogram, the insurer learned about that echocardiogram.
Koenig Aff. ¶¶ 3–5, Jt. Rec. 100. “To determine whether the results of the echocardiogram had
any significance for underwriting purposes, [Koenig] consulted the Swiss Re underwriting
guidelines, USAA Life’s underwriting manual of record.” Id. ¶ 6. Koenig explained:
The Swiss Re guidelines instructed me to use the Left Ventricular Mass
Calculator to assess the results of the echocardiogram.
. . . The Left Ventricular Mass Calculator contains fields into which a
portion of the results of the echocardiogram are inserted. Based on the input from
the echocardiogram report, the calculator provides a response answering whether
the information from the echocardiogram affects the rating of the policy.
Id. ¶¶ 7–8. Koenig “populated the fields requested by the calculator with the results from the
echocardiogram,” including “the left ventricular interior dimension (LVID), the posterior wall
thickness (PWT), and the septal wall thickness (SWT),” as well as “Ms. Maddox-Gary’s height
and weight.” Id. ¶ 9. Based on that data, “[t]he calculator determined that, under the Swiss Re
underwriting guidelines, the premium was increased by 100 - 150%.” Id.
After entering the decedent’s data into the calculator, Koenig “provide[d] [her] opinion”
to her superiors that “the policy was not issued at the correct class,” and the “claims executive”
decided to deny Gary’s claim. Koenig Dep. 17:19–20, 19:8–19, 45:8–16, Jt. Rec. 83, 90. USAA
Life notified Gary by letter on September 22, 2014 that “it was denying his claim and rescinding
the policy.” Jt. Stmt. of Facts, Def.’s Mem. 2; see also Pl.’s Opp’n & Mem. 2. It “returned the
premium to Mr. Gary by check, but the check has not been negotiated.” Id.
According to Koenig, if Ms. Maddox-Gary had disclosed that she had an echocardiogram
in January 2011, “records would have been obtained” for USAA Life to consider the results.
Koenig Dep. 37:2–10, Jt. Rec. 88. Further,

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Had USAA Life known of the echocardiogram results at the time that it was
originally underwriting the policy, Ms. Maddox-Gary would not have been
offered the policy at the preferred rate. Rather, the rate would have been 100 –
150% of the rate that she paid, based upon the Swiss Re Left Ventricular Mass
Calculator.
Koenig Aff. ¶ 10. In Koenig’s view, Ms. Maddox-Gary’s failure to disclose her echocardiogram
in response to Question 8.a was “material because it change[d] her policy rating.” Koenig Dep.
37:7–13, Jt. Rec. 88.
Discussion
Under Maryland law,5 “a material misrepresentation in the form of an incorrect statement
in an application invalidates a policy issued on the basis of such application.” Fitzgerald v.
Franklin Life Ins. Co., 465 F. Supp. 527, 534 (D. Md. 1979) (citing Hofmann v. John Hancock
Mutual Life Ins. Co., 400 F. Supp. 827, 829 (D. Md. 1975); Mutual Life Ins. Co. v. Hilton-Green,
241 U.S. 613 (1916)), aff’d, 634 F.2d 622 (4th Cir. 1980). Specifically, the Maryland Insurance
Code provides that, with regard to “[s]tatements in applications for life . . . insurance”:
A misrepresentation, omission, concealment of facts, or incorrect statement does
not prevent a recovery under the policy or contract unless:
(1) the misrepresentation, omission, concealment, or statement is fraudulent or
material to the acceptance of the risk or to the hazard that the insurer assumes; or
(2) if the correct facts had been made known to the insurer, as required by the
application for the policy or contract or otherwise, the insurer in good faith would
not have:
...
(ii) issued the policy . . . at the same premium or rate . . . .
Md. Code Ann., Ins. § 12-207(b). Pursuant to this statute, “[t]he insurer may avoid the policy
regardless of whether the material misrepresentation is made intentionally, or through mistake
and in good faith.” Fitzgerald, 465 F. Supp. at 534. USAA Life moves for summary judgment

5

The parties agree that Maryland law governs. See Def.’s Mem. 6 n.6; Pl.’s Opp’n & Mem. 2.
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on the basis that “Ms. Maddox-Gary’s failure to disclose that she had undergone an
echocardiogram in the year previous to her application was material,” and therefore “the insurer
[was] entitled to deny coverage on [the] claim.” Def.’s Mem. 7.
To determine whether USAA Life was permitted to rescind the Policy under the statute,
the Court considers two factors. Fitzgerald, 465 F. Supp. at 534. “First, the Court must decide
whether a misrepresentation occurred.” Id. at 534–35 (citations omitted). The burden is on the
insurer “to establish fraud or misrepresentation by the insured in the application for insurance,”
but “Maryland law still imposes a heavy burden on the applicant to be responsible for all
statements in or omissions from the application submitted by him.” Id. at 535. Second, “the
Court must determine whether the misrepresentation was material to the risk assumed by the
insurer.” Id.
Gary argues that, regardless whether a misrepresentation occurred or it was material,
“under [Md. Code Ann., Ins.] § 16-216, USAA Life cannot declare the policy void for medical
attention [namely the January 31, 2011 echocardiogram] given prior to February 1, 2011,” more
than two years before the Policy issued. Pl.’s Opp’n & Mem. 4–5. Certainly, § 16-216 provides
that a life insurance policy “may not contain . . . a provision that gives the insurer the right to
declare the policy void because the insured has had a disease or ailment, whether specified or
not, or has received institutional, hospital, medical, or surgical treatment or attention,” unless
“the insured has received institutional, hospital, medical, or surgical treatment or attention within
2 years before the policy was issued” and “the insured or a claimant under the policy fails to
show that the condition occasioning the treatment or attention was not serious or was not
material to the risk.” Ins. § 16-216(a)(2). But, this provision simply is not relevant: USAA Life
declared the Policy void because Ms. Maddox-Gary failed to disclose the echocardiogram and

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the insurer considered that to be a material omission, not because she had the echocardiogram.
See Koenig Dep. 37:7–13, Jt. Rec. 88. Indeed, Koenig testified that, had the insurer known
about the echocardiogram, it still “would have offered her the policy,” but at an increased
premium. Id. at 39:7–13, Jt. Rec. 88. Therefore, I will turn to the factors.
1. Misrepresentation in insurance application
The parties agree that Ms. Maddox-Gary made a misrepresentation, but as Gary sees it,
Ms. Maddox-Gary’s response to Question 8.a simply was not a statement in a life insurance
application, and Ҥ 12-207(b)(2) only permits policy voidance for misrepresentations made on
the application itself.”6 Pl.’s Opp’n & Mem. 6–7. It is true that the question in response to
which Ms. Maddox-Gary should have disclosed the echocardiogram was on the Medical
Questionnaire, not the Written Application. Yet, the Medical Questionnaire was a part of the
application, not an unrelated document or an alteration that would be impermissible under Ins.
§12-206(c)(1), as Gary insists, see id. at 8. As USAA Life asserts:
at the outset of the interview during which the Questionnaire was
completed, the interviewer stated:
I will be assisting you with your telephone interview, and
it’s my goal to provide an excellent member experience in
gathering the required information regarding your medical history
and lifestyle in order to complete your insurance application[.] As
part of this process I need to ask you questions and record your
answers for the USAA underwriting department. . . . Upon
completion of the interview, USAA will request that you provide a

6

Gary relies on the language of subsection (b)(2), but § 12-207(b) is disjunctive: a policy can be
rescinded based on a material misrepresentation, Ins. § 12-207(b)(1), or based on facts that the
insurer elicited in the application that would have caused the insurer to charge a higher premium,
Ins. § 12-207(b)(2)(ii). Section 12-207(b)(1), unlike (b)(2), is not limited to facts “required by
the application.” Nonetheless, the statute itself is titled “Statements in applications for life or
health insurance or annuities.” Ins. § 12-207 (emphasis added). Thus, both subsections apply to
statements in life insurance applications, and Gary’s argument applies whether the failure to
disclosed is categorized as a material misrepresentation under subsection (b)(1) or a fact the
disclosure of which would have changed the premium under subsection (b)(2)(ii).  
16 

recorded voice signature. This confirms that you agree with the
accuracy and completeness of your answers. The voice signature
will save significant amounts of time by eliminating the need to
obtain an ink signature and eliminating the need to mail paper
documents back and forth. USAA can then begin to process your
application much faster. Do I have your permission to proceed on
this basis?
([Interview Tr., Jt. Rec.] 44-45 (emphasis added)). Ms. Maddox Gary answered,
“Yes.” (Id.). Accordingly, before the interview began, Ms. Maddox-Gary was
aware that the answers she gave would be recorded on the Questionnaire, that
those answers were part of her application, and that her application would be
relied upon by USAA as the basis of any policy thereafter issued.
Def.’s Reply & Opp’n 5. Defendant correctly concludes that “[t]he representations Ms. Maddox
made during the interview, as recorded on the Questionnaire, were part of her application.” See
id. Therefore, the decedent’s failure to disclose the echocardiogram was a misrepresentation in
the insurance application.
Yet, “failure to disclose information is grounds for rescission only if the application form
was ‘reasonably designed to elicit from the applicant the information which was material to the
risk.’” Parker v. Prudential Ins. Co. of Am., 900 F.2d 772, 777–78 (4th Cir. 1990) (quoting
People’s Life Ins. Co. v. Jerrell, 318 A.2d 519, 522 (Md. 1974)). And, “[i]f the application form
prepared by the insurance company is ambiguous, it must be construed in a manner favorable to
the policyholder.” Fitzgerald, 465 F. Supp. at 535. Gary argues that the misrepresentation
cannot provide grounds for rescission because Question 8.a on the Medical Questionnaire, as
asked in the interview (“Have you in the past five years had an electrocardiogram, x-ray or any
other diagnostic test or procedure not previously discussed,” with the follow-up question, “Any
other diagnostic test or procedure,” Interview Tr. 19, 21, Jt. Rec. 61, 63), was “improperly
phrased and ambiguous.” Pl.’s Opp’n & Mem. 13. He questions the phrasing, specifically that
the interviewer used the word “discussed,” where the transcript called for the world “disclosed,”
because the decedent previously had stated that she did not have an echocardiogram for her heart
17 

murmur. Id.; see Interview Tr. 11, Jt. Rec. 53. Additionally, Gary argues that the question is
ambiguous because it referred to “other diagnostic tests,” while the echocardiogram was to
monitor an already-diagnosed condition. Pl.’s Opp’n & Mem. 13 (emphasis added).
As noted, Question 8.a of the Medical Questionnaire interview was “Have you in the past
five years had an electrocardiogram, x-ray or any other diagnostic test or procedure not
previously discussed,” with the follow-up question, “Any other diagnostic test or procedure?”
Interview Tr. 19, 21, Jt. Rec. 61, 63. There is no ambiguity in this language. It asks whether Ms.
Maddox-Gary had an echocardiogram that she did not already mention. While Ms. MaddoxGary previously mentioned not having an echocardiogram for her heart murmur, she had not
previously mentioned having an echocardiogram.

Moreover, the question was “reasonably

designed to elicit from the applicant” the fact that she had an echocardiogram in January 2011.
See Parker, 900 F.2d at 777–78 (quoting Jerrell, 318 A.2d at 522).
Gary argues that it is “difficult to believe that an errant or mistaken response would be
considered a misrepresentation warranting voidance of the policy,” because Ms. Maddox-Gary
only was asked to answer the interview questions, including Question 8.a, “to the best of [her]
knowledge.” Pl.’s Opp’n & Mem. 9. Gary does not cite any authority in support of his position,
and I have not identified any Maryland law providing that a statement made to the best of an
applicant’s ability cannot constitute a misrepresentation for purposes of voiding an insurance
policy.7

7

In Virginia, “where a policy contains a recitation that the applicant’s answers are correct to the
best of his knowledge . . . the insurer must also show that his answers are knowingly false.” Van
Anderson v. Life Ins. Co. of N. Am., No. 11-CV-50, 2012 WL 1077794, at *9 (W.D. Va. Mar. 30,
2012) (citing Old Republic Life Ins. Co. v. Bales, 195 S.E.2d 854, 856 (Va. 1973)). But, even
under this heightened standard, what the insurer must show is “that the applicant was aware or
should have been aware of the fact in question based on the circumstances.” Id. at *11. In Van
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As for the fact that the decedent did not have the opportunity to review the Medical
Questionnaire before the Policy issued, I note that, at the outset of the interview, she consented
to “provide a recorded voice signature” to “confirm that [she] agree[d] with the accuracy and
completeness of [her] answers” to “eliminate the need to mail paper documents back and forth”
and allow USAA Life to “begin to process [her] application much faster.” Interview Tr. 3, Jt.
Rec. 45. The Maryland Court of Appeals has held that to sign an insurance “application without
reading it and without its being read to” the insured is “inexcusable negligence,” because when
an applicant signs an application, she is “bound to know what she signed.” Metro. Life Ins. Co.
v. Samis, 192 A. 335, 338–39 (Md. 1937). Further, “[t]he law requires that the insured shall not
only, in good faith, answer all the interrogatories correctly, but shall use reasonable diligence to
see that the answers are correctly written. It is for his interest to do so, and the insurer has a right
to presume that he will do it.” Id. at 339. Indeed,
Even where there has been a material misrepresentation by an agent without the
initial knowledge of the insured, if the insured “has the means to ascertain that the
application contains false statements, he is charged with the misrepresentations
just as if he had actual knowledge of them and was a participant therein.”

Anderson, after reviewing the medical records in the record, the court found that, when the
insured completed the application on November 10, 2008, “[a]s a matter of common sense, he
certainly would have been aware of the fact that he was taking Ativan for anxiety” and “also
certainly would have been aware of the battery of tests [including x-rays, blood tests, urinalyses,
ultrasounds, and CT scans] that he personally underwent on February 26, March 19, March 20,
March 27, and June 6, 2008.” Id.
Likewise, here, the evidence is undisputed that Ms. Maddox-Gary had an echocardiogram
on January 31, 2011 and completed the Medical Questionnaire on December 14, 2012, less than
two years later. The echocardiogram was not one of many tests that Ms. Maddox-Gary
underwent over the course of those two years; the only other test she identified was an x-ray of
her finger. Clearly, Ms. Maddox-Gary knew or should have known that she had that
echocardiogram. As noted, “Maryland law . . . imposes a heavy burden on the applicant to be
responsible for all statements in or omissions from the application submitted by him.”
Fitzgerald, 465 F. Supp. at 535. Thus, even if the standard applied, under these circumstances,
the decedent’s answer was knowingly false. See Van Anderson, 2012 WL 1077794, at *11. 
19 

Shepard v. Keystone Ins. Co., 743 F. Supp. 429, 433 (D. Md. 1990) (quoting Parker, 900 F.2d at
778 n. 7 (quoting Serdenes v. Aetna Life Ins. Co., 319 A.2d 858 (Md. Ct. Spec. App. 1974))).
Notably, when Ms. Maddox-Gary received the Policy, with the Medical Questionnaire
attached, she was informed that the “entire contract consist[ed] of” the Policy and “[a]ny
application.” Policy 5, Jt. Rec. 10. The Medical Questionnaire stated, above her voice signature
line:
I have read the above statements and answers and represent that they are
true and complete and correctly recorded. I agree that such statements shall be
part of the application and are made with the expectation that USAA LIFE
INSURANCE COMPANY will consider the information when determining
whether to issue the policy or contract for which I have applied.
Med. Questionnaire, Jt. Rec. 30.

The decedent was directed to “READ [the] POLICY

CAREFULLY.” Policy 1, Jt. Rec. 1. And, she was informed that she had the “RIGHT TO
CANCEL” by “return[ing] it within 20 [or more if required by law] days after [she] received it.”
Id.; see id., Jt. Rec. 40 (stating that insured had 31 days to cancel for full refund). She was
provided with a number to call USAA Life with any questions. Id. Under these circumstances,
Ms. Maddox-Gary is presumed to have reviewed the contract she received from the insurer,
including the Medical Questionnaire. See Samis, 192 A. at 338–39; see also Shepard, 743 F.
Supp. at 433; Fitzgerald, 465 F. Supp. at 535.
2. Materiality
The remaining issue is whether the decedent’s failure to disclose the echocardiogram was
a material misrepresentation or whether, if Ms. Maddox-Gary had disclosed the echocardiogram,
USAA Life would not have issued the Policy at the same premium. See Ins. § 12-207(b)(1),
(2)(ii).

“[T]he materiality inquiry focuses on what the insurer’s use of the undisclosed

information would have been in determining the life risk of the insured at the time of application

20 

for the policy.” Holsey v. Ohio State Life Ins. Co., 39 F.3d 1177, 1994 WL 592750, at *3 (4th
Cir. 1994) (quoting Fitzgerald, 465 F. Supp. at 535). Typically, “whether misstatements in an
application are false and material to the risk are . . . questions of fact for the jury,” but “when the
evidence is clear and convincing, or uncontradicted, the court may rule as a matter of law.”
People’s Life Ins. Co. v. Jerrell, 318 A.2d 519, 520 (Md. 1974) (citations omitted).
The Fourth Circuit has held that, under Maryland law, where an applicant failed to make
an elicited disclosure that he smoked, and the uncontradicted evidence established that the
“policy premium would have been substantially higher” had he made the disclosure, “the
uncontradicted evidence . . . show[ed] a material misrepresentation sufficient to warrant
rescission of the contract by [the insurer].” Parker v. Prudential Ins. Co. of Am., 900 F.2d 772,
778 (4th Cir. 1990). Similarly, in Holsey v. Ohio State Life Ins. Co., 39 F.3d 1177, 1994 WL
592750, at *3 (4th Cir. 1994), the Fourth Circuit held that the record “clearly establishes a
material misrepresentation sufficient to warrant rescission of the contract by Ohio Life” under
Maryland law and affirmed summary judgment for the insurer. There, the insurance applicants
had “obtained a lower premium through misrepresentation about Mrs. Holsey’s smoking.” Id.
The court noted that the insurer offered evidence that “had it known of Mrs. Holsey’s smoking
history, it probably would not have issued the policy, and, if it had, it would have required a
substantially higher premium.” Id.; see also Chawla v. Transam. Occidental Life Ins. Co., 440
F.3d 639, 641 (4th Cir. 2006) (affirming summary judgment for insurer on basis of
misrepresentations in life insurance applications where applicant failed to disclose two surgeries
and three hospitalizations and did not contend that the undisclosed medical information was
immaterial to life insurance application).

21 

Here, USAA Life offers Koenig’s statements that if Ms. Maddox-Gary had disclosed the
echocardiogram, USAA Life would not have issued the Policy at the same premium, and
therefore the misrepresentation was material. Koenig Dep. 7:21 – 8:4, Jt. Rec. 80; Koenig Aff.
¶ 10. Gary has not identified any evidence to the contrary. While he argues that the insurer’s
knowledge of Ms. Maddox-Gary’s heart murmur without requesting her medical records means
that the failure to disclose the echocardiogram was not material because the insurer already had a
reason to request medical records (to learn more about the murmur), this is not so. Rather, the
insurer established by uncontradicted evidence that the murmur was “considered benign and not
worth pursuing the records,” Koenig Dep. 32:17–23, Jt. Rec. 86, whereas if Ms. Maddox-Gary
had disclosed that she had an echocardiogram in January 2011, “records would have been
obtained” for USAA Life to consider the results, Koenig Dep. 37:2–10, Jt. Rec. 88. Specifically,
the underwriter would “follow the guidelines in Swiss Re,” Koenig Dep. 25:15–20, Jt. Rec. 85,
which, when Koenig followed them, indicated that a higher premium rate category would have
applied to the decedent, id. at 7:21 – 8:4, Jt. Rec. 80; Koenig Aff. ¶ 10. Therefore, disclosure of
the echocardiogram was material because it would have prompted review of the records and
resulted in a different rate. See Holsey, 1994 WL 592750, at *3; Parker, 900 F.2d at 778.
Thus, Ms. Maddox-Gary’s failure to disclose the echocardiogram was a material
misrepresentation that led the insurer to issue the Policy at a much lower premium, and such a
material misrepresentation on an insurance application provides grounds for an insurer to rescind
the policy and deny a claim. See Parker, 900 F.2d at 778; Ins. § 12-207(b)(1), (2)(ii).
Conclusion
In sum, the undisputed evidence that would be admissible at trial shows that Ms.
Maddox-Gary made a material misrepresentation in her application, which cause USAA Life to
22 

issue the Policy at a lower rate than it would have charged had it known. Therefore, the insurer
had the authority to rescind the Policy and deny Gary’s claim. Accordingly, USAA Life’s
Motion for Summary Judgment, ECF No. 29, IS GRANTED, and Gary’s Cross-Motion for
Summary Judgment, ECF No. 32, IS DENIED. A separate order shall issue.
Dated: January 17, 2017

/S/
Paul W. Grimm
United States District Judge

lyb

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