Sciranko v. Fidelity & Guaranty Life Insurance (503 F. Supp. 2d 1293, 2007)

ORDER

WAKE, District Judge.

Table of Contents

I. Background..............................................................1296

A. Sciranko’s Preexisting Conditions.......................................1297

B. The Insurance Application.............................................1298

C. The Terms of the Policy...............................................1301

D. Sciranko’s Disability Claim ............................................1302

II. Standard of Review.......................................................1305

III. The Insurance Application is Admissible as Evidence..........................1306

IV. There is a Genuine Issue of Material Fact as to Whether Fidelity Breached the Insurance Contract..................................................1307

A. There is No Genuine Issue of Material Fact as to Whether the Coverage Exclusion for Undisclosed Preexisting Conditions Applied on its Own Terms ............................................................1307

1. Sciranko’s Claimed Disability Resulted from his Preexisting Conditions.....................................................1308

2. Sciranko Did Not Disclose his Preexisting Conditions Despite his Awareness of Them.............................................1310

a. Although there is a Genuine Dispute Regarding Whether Sciranko Orally Disclosed his History of Angina, it is Not Material Because Sciranko Had an Opportunity to Review his Application and Made no Changes.............................1310

b. Sciranko Was Aware of His History of ASHD and Hyperlipidemia but Did Not Disclose Those Conditions..........1312

B. There is a Genuine Issue of Material Fact as to Whether Fidelity’s Denial of Benefits Violated the Incontestability Clause in Sciranko’s Policy.............................................................1313

1. Sciranko’s Incontestability Clause Prohibits a Denial of Benefits

After Two Years for Mere Failure to Disclose a Preexisting Condition......................................................1313

2. The Incontestability Clause Permits a Denial of Benefits After Two Years in the Case of Fraud, But Fraud Has Not Been Argued on this Motion.....................................................1319

V. Fidelity Did Not Exhibit Bad Faith in Processing and Denying Sciranko’s Claim .................................................................1320

A. There is No Genuine Dispute that Fidelity Acted in an Objectively Reasonable Fashion.................................................1322

B. Even Assuming that Fidelity Acted Unreasonably, There is No Evidence that Fidelity Acted in a Consciously Unreasonable Manner...............1324

Pending before the court is Defendant’s Motion for Summary Judgment (Doc. # 34).

I. Background

This action in diversity raises the question of whether Defendant Fidelity & Guaranty Life Insurance Company (“Fidelity”) permissibly denied disability benefits to Plaintiff Thomas P. Sciranko on the ground that he failed to disclose preexisting medical conditions on his insurance application. Fidelity is a Maryland Corporation. Sciranko is a 45 year-old resident of Arizona. The facts are partially disputed.

A. Sciranko’s Preexisting Conditions

Sciranko’s history of significant health problems dates back to his mid-20s, when he began to experience episodes of what he interpreted to be anxiety attacks. The attacks occurred several times a year and manifested through shortness of breath, sweating, and an uncontrollable, racing heartbeat. Sciranko managed the condition with Valium and the anti-anxiety medication Xanax.

In 1993, Sciranko began to experience moderate chest pain that correlated with physical activity and, unlike his anxiety attacks, moderated with rest. Doc. # 45, Exh. 3 at 37. On December 7, 1993, Kirit P. Gosalia, M.D., a board-certified cardiologist and specialist in internal medicine, diagnosed the pain as indicative of angina pectoris and coronary artery disease and prescribed Adalat, a calcium channel-blocking drug that is used to treat both angina and high blood pressure. Id. at 14, 20. Gosalia cannot recall explaining the diagnoses to Sciranko, but he has a “clinical habit” and “blanket policy” of explaining his diagnoses and test results to all of his patients. Doc. #45, Exh. 4 at 8, 32. Sciranko specifically remembers Gosalia’s explanation of the diagnosis of angina, Doc. # 45, Exh. 3 at 42-43, and he remembers independently researching to learn more about that condition, id. at 43, but he cannot recall being told of the additional diagnosis of coronary artery disease, id. at 45. Billing records indicate that Gosalia used a diagnostic code for coronary artery disease to charge Sciranko’s insurance carrier for six additional visits involving electrocardiogram testing and other evaluations from February 1994 to January 1996. Doc. # 35, Exh. E at 1; Doc. # 45, Exh. 4 at 37. All other records of Sciranko’s visits during this period have been destroyed pursuant to Gosalia’s record retention policy, and Sciranko did not receive further care from Gosalia until 2004. Id. at 32.

Meanwhile, Sciranko started to receive his primary medical care from Sudeep S. Punia, M.D., a board-certified internist, in May 1999. In a health history form completed and signed at the time of his first visit, Sciranko explained that his angina was a “serious illness,” and he circled “yes” in response to a question asking whether he ever had “heart disease.” Doc. # 35, Exh. D at 1. Punia’s notes indicate that Sciranko had a history of arteriosclerotic heart disease (“ASHD”), angina, and hypercholesterolemia, and that his prescriptions included Adalat, aspirin, and Lipitor. Doc. #45, Exh. 6 at 223. Describing Sciranko’s treatment plan, Pu-nia wrote “continue past medication” and “watch salt and fat in diet.” Id. at 224. Punia also indicated an intention to “obtain previous medical records and review” and require Sciranko to receive education and counseling on his coronary artery condition. Id.

Punia examined Sciranko several more times over the course of the next two years. On March 21, 2000, he performed a complete physical examination and assessed that Sciranko continued to suffer from ASHD and hypercholesterolemia. Doc. # 45, Exh. 6 at 220. He prescribed Zocor for Sciranko’s cholesterol as a substitute for Lipitor and continued use of Adalat. From another examination on May 18, 2001, Punia wrote that Sciranko had “controlled” blood pressure but suffered from swelling in both legs and discomfort in his upper chest. Id. at 217. He again noted that Sciranko had ASHD and “hyperlipidemia,” a term often used interchangeably with hypercholesterole-mia, and he scheduled for Sciranko to receive an electrocardiogram. Id. Although normal triglyceride and total cholesterol levels are each less than 200 milligrams per deciliter, blood tests showed that Sci-ranko’s levels were respectively 1489 and 446. Id. at 233. Sciranko was informed of these test results at 10:15am on May 25, 2001. A handwritten note on the results form states, “watch fat and cholesterol in diet.” Id. On July 16, 2001, Punia found that Sciranko continued to suffer anxiety attacks associated with “sweating, heart races, [and elevated] breathing.” Id. at 216. Although Sciranko had previously smoked cigarettes for years, he quit in August 2001 and switched to a nicotine patch in September 2001. Doc. # 45, Exh. 3 at 88-90.

Sciranko argues that there is a factual dispute as to whether Punia ever informed him of the diagnoses of coronary artery disease and hyperlipidemia between 1999 and 2001. Although Sciranko cannot recall how Punia became aware of the diagnoses, Sciranko is sure that his own unawareness of the diagnoses precluded him from informing Punia, and he recalls that Punia never explained to him that he was diagnosing ASHD, angina, or hypercholester-olemia. Id. at 54-55, 69-70. Punia has a “clinical habit” of discussing diagnoses with patients and presumes that he talked with Sciranko about each of the three heart conditions, but he concedes that it is a “reasonable possibility” that he and Sci-ranko did not discuss the conditions “at length” during the course of their visits because Gosalia was presumed to be providing treatment. Doc. # 45, Exh. 5 at 23, 25-26, 51. Punia nevertheless testifies that he received his information about each of the three heart conditions from Sciran-ko himself. Id. at 15-17,19-20.

B. The Insurance Application

On September 26, 2001, Thomas Kear-ney contacted Sciranko by telephone after learning that Sciranko was interested in purchasing a life insurance policy with a disability income rider. Kearney was an independent contractor who sold policies for Fidelity from approximately 1998 to late 2001 under an agreement with the insurance broker American Classic Agency (“ACA”). He had approximately eleven total years of prior experience as an insurance salesperson for a number of different companies. His agreement with ACA entitled him to leads on potential customers such as Sciranko in exchange for a fee. When Kearney first started selling for ACA, he received a commission of 65% of the total annual premium on each policy he sold. ACA paid Kearney 75% of the value of the commission at the time of the sale and disbursed the remaining 25% after the first nine months of the policy. By the end of his agreement with ACA in late 2001, Kearney’s commissions had reached 85% of the total annual premium on each policy sold. The first year of a policy term was financially significant to Kearney because he received “very little” from ACA— approximately 2% of the value of a premium-for policy renewals. Doc. # 45, Exh. 1 at 13.

The purpose of Kearney’s phone call on September 26 was to make a preliminary determination as to whether Sciranko was eligible for coverage. Kearney had the impression from his prior experience that health conditions such as heart attacks, arteriosclerotic heart disease, unregulated high blood pressure, angina, and unregulated high cholesterol would likely prevent approval of a life insurance application. A Client Qualification Information sheet filled out by Kearney during the course of the phone call and based on details provided by Sciranko indicates that Sciranko did not smoke at the time and that Sciranko had experienced “controlled” high blood pressure for ten years. Doc. # 49, Exh. B; Doc. # 45, Exh. 1 at 26-28. Kearney did not ask about Sciranko’s medications during the phone call. Although Kearney otherwise asked “all [of] the qualifying questions” in the insurance application, no other conditions were noted. Id. at 27, 29.

Finding no reason why Sciranko would fail to qualify for coverage on the basis of the preliminary information' obtained on September 26, Kearney visited Sciranko’s home on October 5, 2001, to help him complete the insurance application. The application asked a series of questions about Sciranko’s health. It was noted on Page 1 that Sciranko visited Punia in approximately August 2001 for a “blood test for [high blood pressure].” Id. at 1. Question 6 asked:

Has any person proposed to be insured used tobacco in any form:

(a) within the past 12 months? (If yes, specify type and date last used in the area beloiv.)

(b) within the past 5 years? (If yes, specify type and date last used in the area below.)

Doc. # 35, Exh. A at 2. Although Sciranko acknowledges in his deposition that he smoked until approximately two months prior to the date of his application, “no” was filled in as the answer to Questions 6(a) and (b).

Question 7 read in relevant part:

Within the past 10 years, has any person proposed to be insured been treated for or diagnosed by a physician or other health care professional as having: (If Yes, circle applicable condition.)

(a) Any disorder or disease of the blood or circulatory system (such as: heart disease, palpitations, rheumatic fever, heart murmur, angina or chest pain, high blood pressure, stroke, anemia), respiratory system (such as: emphysema, tuberculosis, asthma, bronchitis), brain or nervous system (such as: convulsions, epilepsy, fainting spells, mental illness, or Alzheimer’s disease), urinary tract (such as: kidney or bladder), reproductive system, stomach, intestines, liver, or gallbladder (such as: ulcer, colitis), endocrine system (such as: diabetes, thyroid), or muscles or bones (such as: arthritis, gout, back problems)?

Id. In columns to the right of the question where blanks for “yes” or “no” could be marked, the blank next to the word “yes” was filled in. The blank for the word “no” was filled in and also crossed out with an “X.” Despite the absence of any indication of a history of high blood pressure, the term “high blood pressure” within the text of the question was also circled in pen. No markings were made to indicate Sci-ranko’s history of angina, hyperlipidemia, andASHD.

The relevant portion of the ensuing Question 8 read as follows:

Within the past 5 years, has any person proposed to be insured:

(a) Been in a hospital, clinic, sanatorium, or other medical facility for operation or advised to have surgery, observation, or treatment, seen a doctor, or been advised to and not done so?

(b) Had electrocardiogram, X-ray, or other diagnostic tests, or been advised to and not done so?

(c) Been or is now disabled, or had or now have any other mental or physical disorder not listed?

Id. Question 8(a) was answered “yes.” The answer to Question 8(b) was indicated as “no” despite evidence that Sciranko received an electrocardiogram in approximately May 2001. See Doc. # 45, Exh. 6 at 217.

In a section for “Additional Information” that is located below Questions 7 and 8, it was noted that Sciranko has “[high blood pressure] — maintained very well for 10 years with Adalat 60 mg 1 time a day.” Id. The application closes with a section entitled “Authorization,” which reads in part, “I have read the questions and answers on this application. The statements made in this application are: complete; true; and correctly recorded.” Id. The application is signed by Sciranko and certified by Kearney. Sciranko made no subsequent effort to change the recorded answers.

The parties dispute the events leading up to the completion of the insurance application. According to Sciranko, he and his wife, Lauren C. Sciranko, sat down at a table across from Kearney and reviewed the terms of the policy. Once Sciranko confirmed his interest in applying for coverage, Kearney pulled out the application, read aloud and verbatim all of relevant questions except for Question 6, and personally marked Sciranko’s articulated answer to most of the questions. Lauren Sciranko testifies that Kearney neglected to ask about tobacco consumption under Questions 6(a) and (b), but Thomas Sciran-ko testifies that Kearney did in fact ask those questions by orally paraphrasing them. Doc. #45, Exh. 2 at 55. After Kearney finished reading the questions and marking Sciranko’s answers, he turned the application over to Sciranko, who promptly provided a signature. The Scirankos did not review the answers that Kearney recorded. Doc. # 45, Exh. 3 at 27.

Some of the answers noted by Kearney purportedly failed to accurately reflect Sci-ranko’s oral answers. Sciranko testifies that the answers to Question 6 incorrectly indicate that he had not smoked within the 12 months leading up to the date of the application. He also testifies that he never indicated a history of high blood pressure in response to Question 7 and that, indeed, he had never even suffered from that condition. Although the notations pertaining to his use of Adalat were accurate, he took the medication for angina, not high blood pressure.

The explanations for the inaccuracies vary. Thomas Sciranko attributes the inaccurate answer to Question 6 to Kear-ney’s decision to paraphrase the question rather than read its text verbatim. He states that Kearney simply asked whether he currently smokes rather than whether he had smoked in the recent past, so he answered “no” because that was the correct answer “at that moment.” Doc. # 45, Exh. 3 at 91, 97. Sciranko’s wife, on the other hand, testifies that Question 6 was incorrectly answered by Kearney himself without any input from Sciranko. With regard to Question 7, Sciranko cannot recall whether he told Kearney about his history of angina or explain why the noted answers to the application lack any reference to that condition or Sciranko’s treatment with Gosalia. Id. at 28-29. He attributes the reference to high blood pressure to error by Kearney. Id. at 40. Sciranko’s wife, on the other hand, testifies that Kearney was in fact told of Sci-ranko’s angina but simply did not write it down. Doc. #45, Exh. 2 at 45-46. Sci-ranko believes that he did not disclose his Lipitor prescription because he was not actually taking Lipitor at the time, Doe. # 45, Exh. 3 at 58, but he cannot explain why his Zocor prescription was also left undisclosed, id. at 67. He further testifies that he had no knowledge of whether high blood pressure or cholesterol would affect his ability to obtain insurance from Fidelity. Id. at 140.

Kearney tells a different story. He testifies that when he sat across from Sciran-ko and his wife, he provided them with a separate, blank copy of the insurance application and instructed them to read each question silently to themselves. After Sci-ranko finished reading each question, he stated his answer to Kearney, who in turn accurately wrote the expressed answer down on his own, official copy of the application. Doc. #45, Exh. 1 at 34. In response to Question 7, Sciranko initially stated that he had not suffered from any of the listed conditions. However, when Kearney pointed out that Sciranko had already disclosed a history of high blood pressure on Page 1 of the application, Sci-ranko changed his answer and indicated that he takes Adalat for high blood pressure. Id. at 35. Kearney recalls that Sciranko never disclosed his history of angina, hyperlipidemia, ASHD, anxiety attacks, or examinations with Gosalia. Once all of the questions were answered, Kear-ney had the Scirankos review the application and sign it. Sciranko never indicated that he failed to understand any of the questions presented to him.

After Sciranko completed his application, Kearney arranged on October 8, 2001, for Marcella Bappe, a nurse with Heritage Labs International, LLC, to visit Sciranko at his home to collect a urine sample and ask additional questions about his health. The examination was completed by the nurse on October 10. The form recording the results began with a question that read:

Within the past 10 years, have you had any known indication of or been treated for:

(a) Any disorder or disease of the ... [b]lood or circulatory system, such as: chest pain, palpitation; high blood pressure; rheumatic fever; heart murmur; heart attack; anemia?

Doc. # 35, Exh. A at 3. This question was answered affirmatively on the ground that Sciranko suffers from “hypertension diagnosed 1991.” Id. The listed medication for this condition was “Adalat 60 mg.” Id. Notes on the application also indicate that Sciranko received an electrocardiogram in 2001 from Punia and that he “[h]ad a checkup, consultation, illness, injury or surgery” in the past five years. Id. However, the nurse did not note any other heart examinations, conditions, or treatments, and she indicated that Sciranko had not used tobacco “within the past 10 years.” Id. Sciranko signed the application, representing that “[t]o the best of [his] knowledge and belief, the statements made ... are complete, true and correctly recorded.” Id. He cannot recall how the application came to be filled out or explain why it omits reference to his cardiac diagnoses and treatments. Doc. # 45, Exh. 3 at 52-53. Kearney never communicated with the nurse about Sciranko’s physical condition or any other matter pertaining to his application. Doc. # 45, Exh. 1 at 48-49.-

C. The Terms of the Policy

On December 17, 2001, Fidelity issued Thomas Sciranko a $150,000 term life insurance policy with a disability income rider that provides $1,500 in monthly benefits in the event Sciranko becomes' unable to substantially perform the essential duties of any occupation for which he is qualified. Sciranko’s official premium was higher than initially quoted because the urine sample collected by Bappe on October 10 indicated the presence of nicotine. The insurance certificate shows that the disability rider became effectivé on the date of issuance.

The policy contains two relevant provisions. First, a “Benefit Limitations” provision located within the disability rider states, “No disability income will be paid for .any disability which results from ... [b]odily injury or disease, occurring before the effective date of this rider, which was not disclosed on the application.” Doc. # 35, Exh. B at 2. Second, an “Incontestability” provision within the disability rider states:

We will not contest this rider’s benefit for any Insured or Covered Dependent based on statements made in an application after that benefit has been in effect during the lifetime of that Insured or Covered Dependent for 2 years from:

• The certificate’s Date of Issue if part of the certificate on that date; or

• The effective date of that Insured’s or Covered Dependent’s benefit if made a part of the certificate after the certificate’s Date of Issue.

Doc. # 45, Exh. 7 at 27.

D. Sciranko’s Disability Claim

Sciranko continued to suffer from his various heart conditions after Fidelity issued the term life insurance policy. See, e.g., Doc. #45, Exh. 6 at 210, 213, 267. He underwent a six-vessel aorto-coronary bypass surgery on March 21, 2002, and was informed that his early “anxiety attacks” were actually mild heart attacks. Id. at 92, 133; Doc. #45, Exh. 3 at 39. Punia noted continuing problems with coronary artery disease and hyperlipidemia in 2003. Doc. # 45, Exh. 6 at 201, 206, 263. On March 26, 2004, Gosalia wrote a letter to Punia explaining that although Sciranko quit smoking and does not suffer from high blood pressure, he has a “history of very high cholesterol” and “obvious[ ] coronary artery disease.” Id. at 160-61. Cardiologist Rajendra Savajiyani, M.D., “strongly advised [Sciranko] to consider long-term disability” on March 14, .2005, due to his “severe, diffuse, three-vessel coronary artery disease,” “history of six-vessel aortocoronary bypass surgery,” and “history of hyperlipidemia.” Id. at 185. Additional bypass surgery was performed on March 24, 2005. Id. at 175. According to Sciranko, Gosalia recommended that he avoid work and strictly limit his physical activity because he has “smaller arteries than the average person.” Doc. # 45, Exh. 3 at 136. Gosalia testifies that Sci-ranko should be confined to his house “because of his cardiac condition.” Doc. # 45, Exh. 4 at 54.

Sciranko filed for disability insurance benefits on April 18, 2005. He explained his disability as follows:

Apparently this is something I just found out is hereditary — my coronary arteries are too small. They clogged up 3 years ago and I had a 5-way by-pass open heart surgery. Because those new arteries still fed into the small arteries they backed up and then clogged up again. I ended up with chest pain again on 3-11-05 resulting with the need for more surgery. Four stents were put in on 3-24-05. No more surgery can be done except for heart transplant.

Doc. #45, Exh. 6 at 126. In support of the claim, Lauren Sciranko submitted a number of documents to William R. Bar-ger, a senior claims examiner for Fidelity. The documents included Thomas Sciran-ko’s Claimant’s Statement of Disability, contact information for his treating physicians, Lauren Sciranko’s own summary of her husband’s recent heart surgeries, hospital billing records, a hospital discharge statement listing Thomas Sciranko’s medications and treatments, and a signed records release form.

On May 3, Lauren Sciranko separately submitted a signed Attending Physician’s Statement from Gosalia indicating that Sci-ranko is disabled and confined to his house due to coronary artery disease and hyper-lipidemia. Id. at 107-08. Because Gosalia omitted some necessary information on Sciranko’s medications and the date on which his symptoms first appeared, Lauren Sciranko independently inserted the missing information and initialed next to her additions. In accordance with his “general understanding” of Fidelity’s standard practice, Barger responded in a letter dated May 10 that Fidelity could not accept Gosalia’s statement as submitted because it was not legible and fully completed by Gosalia himself. Doc. # 45, Exh. 8 at 50; see also Doc. # 45, Exh. 9 at 52-53. Bar-ger also indicated that the claim would not be processed until a Claimant’s Statement of Disability and a signed medical records release form had been submitted. Id. at 109. In retrospect, Barger is not sure why Sciranko was asked to resubmit those forms after having already submitted them on April 18. Doc. # 45, Exh. 8 at 56.

Lauren Sciranko resubmitted the signed release form and the disability statement from her husband again on May 14, 2005. She also resubmitted Gosalia’s initial statement despite Fidelity’s indication that it was unacceptable. If Fidelity still found the statement deficient, she explained, the company should call Gosalia.for additional information. Lauren Sciranko’s letter further indicated that she wished to handle personally her husband’s disability claim because his heart condition prevents him from safely handling stress.

Fidelity again rejected the submitted documents in a May 24 letter addressed to Thomas Sciranko. Barger explained that Gosalia’s original Statement remained illegible and omitted information that must be supplied by the physician. He also explained that Fidelity had begun to collect Seiranko’s other medical records to determine whether he qualifies for payments. Id. at 117. Barger did not call Gosalia, however, because his experience is that physicians typically do not return calls from insurance companies, and in any event Fidelity has a standard practice of making sure that physician statements are in writing. Doc. # 45, Exh. 8 at 51; Doc. # 45, Exh. 9 at 38, 52-53. The purpose of the standard practice is to create a “paper trail” for reference in the event of a claim dispute. Doc. #45, Exh. 8 at 51; Doc. # 45, Exh. 9 at 52-53.

On May 27, 2005, Lauren -Sciranko directed a létter of complaint concerning Barger’s conduct to Russell H. Laws, Fidelity’s Assistant Vice President of Claims and Compliance. The letter accused Bar-ger of “obviously and purposely ignoring” Lauren Sciranko’s requests and asserted that Barger had acted- improperly by refusing to accept Gosalia’s statement, refusing to contact Gosalia by phone to resolve any deficiencies in his statement, refusing to return Lauren Sciranko’s phone calls, and sending correspondence to Thomas Sciranko despite instructions that Lauren Sciranko alone is handling the claim. Id. at 118. In accordance with his understanding of an “internal policy” ■ aimed at ensuring Fidelity’s compliance with federal privacy regulations, Laws responded with a June 17 letter explaining that Lauren Sciranko must provide power of attorney documentation signed by Thomas Sciranko in order for Fidelity to address her rather than her husband during the processing of the claim. Id. at 51. Three days later, Lauren Sciranko submitted a complaint to the Arizona Department of Insurance, Consumer Affairs Division, repeating the accusations made against Barger on May 27.

On June 23, 2005, Thomas Sciranko received another letter from Barger stating that Fidelity still needed a legible and complete statement-from Gosalia. Barger explained that Fidelity was in the process of collecting Sciranko’s other medical records, but that if Sciranko wished to expedite the process he could separately contact Punia to request that he quickly send his records to Fidelity. Barger contemporaneously sent a blank Employer’s Statement of Disability form to Thomas Sciran-ko’s former employer to collect information concerning the.effect of Sciranko’s condition on his ability to work. Lauren Sciran-ko mailed Fidelity power-of-attorney documentation and one of her husband’s pay stubs as proof of employment on June 29, 2005.

On June 30, 2005, Laws received a notice of Lauren Sciranko’s complaint before the Arizona Department of Insurance. The notice requested an explanation of Fidelity’s position on the matter and supporting documentation. Laws responded on July 19, indicating that Thomas Sciran-ko’s claim had been delayed because Fidelity had not received an Attending Physician’s Statement appropriately completed by Gosalia himself. Laws also explained that, despite Lauren Sciranko’s assertion to the contrary, Fidelity was still in the process of collecting necessary medical records. Barger’s prior correspondence requesting documentation of Lauren Sci-ranko’s power of attorney was explained as a reflection of standard company policy aimed at ensuring claimant privacy. The Arizona Department of Insurance apparently decided not to take action against Fidelity after receiving this explanation.

Barger sent additional letters addressed to Thomas Sciranko and his former employer on July 20, 2005. The former repeated that Fidelity still needed to obtain a legible and complete statement from Go-salia, Punia’s records, and an Employer Statement of Disability prior to completing its evaluation of the claim. The second letter repeated Fidelity’s initial request that Sciranko’s former employer complete the statement form provided on June 23.

After receiving Punia’s medical records, Fidelity denied coverage on July 28, 2005. The stated basis for this decision was that medical records from May 7, 1999, March 21, 2000, and May 18, 2001, indicated that Sciranko had preexisting conditions of ASHD and hyperlipidemia that were not disclosed on his initial insurance application. Prior to denying benefits, Fidelity did not seek a legal opinion on the proper disposition of the claim, and it did not receive a statement from Sciranko’s former employer or a completed statement from Gosalia. Doc. # 45, Exh. 9 at 67, 71. Laws testifies that although Fidelity requested those statements from Sciranko, the company does not have a policy that makes them mandatory to decide a claim. Id. at 35. Fidelity examiners have discretion to look for preexisting conditions and decide claims even without an entire record once the proper outcome of a claim becomes apparent. Id. at 39-40. Claims processing is “never” delayed solely for lack of an employer’s statement because it is Fidelity’s experience that employers rarely cooperate anyway. Id. at 64-65.

Sciranko’s claim was denied despite the incontestability clause in his policy because neither Laws nor Barger viewed the clause as relevant. Laws believes that incontestability clauses in Arizona preclude insurance carriers from disputing the validity of a policy after two years, but not from disputing coverage for particular claims under an admittedly valid policy. Id. at 40. He obtained this understanding from unspecified Ninth Circuit precedent, legal summaries produced by the American Counsel of Life Insurers, and an internal memorandum from Fidelity’s legal department that lists states in which an incontestability clause will apply to both disputes over the validity of a policy and disputes over the scope of coverage. Id. at 41-42, 87-88. Because the internal memorandum does not mention Arizona, Laws inferred that the State permits Fidelity to deny coverage on the basis of a preexisting condition even after two years from the issuance of the policy. Id. Barger possessed the same view based on Fidelity’s internal memorandum and training he received from the company. Doc. # 45, Exh. 8 at 81, 84-85, 91, 93.

Barger and Laws both possessed a general understanding of the common law duty of good faith and fair dealing at the time they processed Sciranko’s claim. Barger was “trained generally” on the duty while employed at Fidelity and understands it to require insurance carriers to process claims in an “open arm’s length manner.” Id. at 9, 16. Although he cannot remember many of the details pertaining to how he processed Sciranko’s claim, Barger generally made efforts to comply with the duty of good faith and fair dealing by acting in accordance with the Fair Claims Practices Act, responding promptly to customer complaints, reviewing claims thoroughly, and comparing case facts with policy language. Id. at 16. Barger did not have a checklist of the requirements for compliance with Fair Claims Practices Act in Arizona, but he was trained to follow California’s version of that Act, and he understands California’s requirements to be the strictest in the country. Id. at 20.

As Barger’s superior at Fidelity, Laws also received substantial training on the duty of good faith and fair dealing. He understands the duty to require Fidelity to “deal honestly and fairly with people,” “take a neutral approach to [its] investigations and consider all the relevant information, both that provided by the insured and ... discovered in [the] investigation,” and investigate claims “reasonably promptly.” Doc. #45, Exh. 9 at 23, 36. Laws also understands the duty to mean that one “should not needlessly ask for things for the purpose of either delaying or ... obstructing the settlement of a claim.” Id. at 24. To ensure compliance with the duty, Fidelity makes efforts to train its claims examiners, utilize a quality-review process that requires Laws to review preliminary benefits determinations, respond to customer communications, request required claim information, follow up with customers, communicate clearly, conduct customer service performance reviews, and monitor claims to limit the time of processing to no more than 90 days when possible. Id. at 20-22, 25-27, 30, 33.

Sciranko filed this action in response to Fidelity’s denial of coverage. Count I of the Complaint alleges that Fidelity breached the insurance agreement by declining to provide disability payments. Count II alleges that Fidelity acted in bad faith by unreasonably denying Sciranko’s claim, failing to fully and fairly investigate the claim, misrepresenting policy terms, creating unreasonable requirements for payment, engaging in “overt dishonesty,” and subjecting Sciranko to “offense, insult and personal abuse.” Doe. #1 at 8. Fidelity now moves for summary judgment.

II. Standard of Review

Rule 56(c), Fed.R.Civ.P., provides that summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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 “genuine issue” of material fact will be absent if, “viewing the evidence and inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law.” Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir. 1977); see also Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nature of this responsibility varies, however, depending on whether the movant or the non-movant would bear the burden of persuasion at trial with respect to the issue at hand. If the burden of persuasion would be on the nonmoving party, the party moving for summary judgment may carry its initial burden of production under Rule 56(c) by introducing “evidence negating an essential element of the nonmoving party’s case,” or by showing, “after suitable discovery,” that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). On the other hand, if the burden of persuasion at trial would be on the party moving for summary judgment, that party may satisfy its initial burden of production only by showing that it would be “entitlefd] ... to a directed verdict if the evidence went uneontroverted at trial.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992); cf. Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (“A directed verdict is proper when the evidence permits only one reasonable conclusion.”).

Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate against a party who “fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538, (1986) (non-movant’s showing of “some metaphysical doubt” as to material facts insufficient); see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). Summary judgment is not appropriate when the non-moving party identifies or produces evidence from which a reasonable juror, drawing all inferences in favor of the non-moving party, could return a verdict in the nonmoving party’s favor. United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir.1999).

III. The Insurance Application is Admissible as Evidence

Sciranko opposes the motion for summary judgment in part by arguing that the insurance application is inadmissible under A.R.S. § 20-1108(A) because a “true copy” of the application was not attached to the policy at the time the policy was issued and delivered. The relevant portion of the statute reads:

No application for the issuance of any life or disability insurance policy or contract shall be admissible in evidence in any action relative to such policy or contract, unless a true copy of the application was attached to or otherwise made a part of the policy when issued and delivered.

The record contains a copy of the insurance policy to which only one page of the insurance application is attached. See Doc. # 45, Exh. 7. Because the application contained multiple pages, that first page alone cannot constitute a “true copy” of the application. However, Sciranko submits no evidence to indicate that the copy of the insurance policy and application that is contained in Exhibit 7 is the same copy that was delivered to him at the time of issuance. Kearney also testifies that he hand-delivered to Sciranko a “complete copy of the Policy with a complete copy of both parts of the application attached thereto” on November 14, 2001. Doc. # 55, Affidavit of Thomas Kearney at 2. On January 15, 2002, Kearney also sent via certified mail a “complete copy of the reissued Policy with complete [sic] copy of both parts of the application and amendment attached thereto.” Id. at 4.

Rather than dispute the accuracy of Kearney’s affidavit, Sciranko attempts to distinguish the “mailing” of a true copy of a policy and application from the statutorily envisioned “delivery” of the same. However, the distinction is not supported by any case authority and is nonsensical. Sciranko’s insurance application will be considered as evidence.

IV. There is a Genuine Issue of Material Fact as to Whether Fidelity Breached the Insurance Contract

Fidelity contends that no material facts are genuinely disputed and moves for summary judgment on the ground that while incontestability clauses are traditionally limited to prohibiting defenses regarding the validity of a policy more than two years after the date of issuance, they do not prohibit a defense based on a policy exclusion for preexisting conditions because that defense only concerns the scope of coverage. For the reasons explained below, the Motion for Summary Judgment will be denied with respect to Count I.

A. There is No Genuine Issue of Material Fact as to Whether the Coverage Exclusion for Undisclosed Preexisting Conditions Applied on its Own Terms

To determine whether Sciranko was appropriately denied benefits, it first must be decided whether Fidelity’s coverage exclusion for undisclosed preexisting conditions applied on its own terms. The text of the exclusion reads, “No disability income will be paid for any disability which results from ... [b]odily injury or disease, occurring before the effective date of [the disability] rider, which was not disclosed on the application.” Doc. # 35, Exh. B at 2. Sciranko asserts that this language does not apply because his disability “results from” heart attacks that he suffered after the issuance of the policy and from his recently discovered problem of congenitally narrow arteries, rather than undisclosed preexisting conditions. Doc. # 45 at 8-9; Doc. # 47 at 13. Sciranko also argues that the exclusion does not apply because he disclosed all preexisting conditions of which he was aware. The evidence underlying these contentions is insufficient to create a genuine issue of material fact concerning the applicability of the coverage exclusion.

1. Sciranko’s Claimed Disability Resulted from his Preexisting Conditions

The provisions of insurance policies in Arizona must be construed “according to their plain and ordinary meaning.” Sparks v. Republic Nat’l Life, 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982). Language that would be considered ambiguous by an individual “not trained in law or in the insurance business” is construed against the insurer. Id., 647 P.2d at 1132. While the insured carries the burden to establish coverage under an insuring clause, the insurer must establish the applicability of any exclusion. Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 46, 13 P.3d 785, 788 (2000).

Neither party argues that the exclusion for preexisting conditions is vague or ambiguous in its use of the phrase, “results from.” As a verb, “result” means to “arise as a consequence, effect, or conclusion.” Oxford English Dictionary 1573 (Compact ed.1991). The exclusion therefore applies when a claimed disability “arise[s] as a consequence, effect, or conclusion” from a bodily injury or disease that was occurring before the date of the policy’s issuance and was not disclosed on the insurance application.

Because Fidelity denied coverage on the basis of a policy exclusion and is the party moving for summary judgment, it must show that it would be “entitle[d] ... to a directed verdict if the evidence went uncontroverted at trial.” Houghton, 965 F.2d at 1536; see also Keggi, 199 Ariz. at 43, 13 P.3d at 788. Fidelity has satisfied this burden. Viewing the evidence in the light most favorable to Sciranko and drawing all reasonable inferences in his favor, the only reasonable conclusion is that Sci-ranko’s claimed disability was a consequence of his preexisting conditions of ASHD, hyperlipidemia, and angina. Berry, 39 F.3d at 1057. On March 14, 2005, Savajiyani “strongly advised [Sciranko] to consider long-term disability due to extremely severe underlying cardiac disease.” Doc. # 45, Exh. 6 at 185 (emphasis added). Savajiyani clarified the nature of Sciranko’s “disease” by listing diagnoses of “angina due to severe, diffuse, three-vessel coronary artery disease,” a “history of six-vessel aortocoronary bypass surgery,” and a “history of hyperlipidemia.” Id. Gosa-lia’s similar finding of disability reflected his diagnoses of coronary artery disease and hyperlipidemia. Id. at 1057-58. Pu-nia and Gosalia repeatedly documented the presence of these conditions prior to the date of Sciranko’s insurance application.

Because of this evidence, the burden shifts to Sciranko to identify contrary evidence that, when viewed in the light most favorable to him, could cause a reasonable juror to decide in his favor. Shumway, 199 F.3d at 1103-04. Sciranko has failed to satisfy this burden. The argument that heart attacks are the actual cause for the claimed disability simply begs the question as to why Sciranko experienced heart attacks in the first place. Sciranko, moreover, cites no evidence to cast doubt on record evidence uniformly showing that his heart attacks were products of his preexisting conditions. Although the alleged disability may be viewed as resulting more directly from Sciranko’s heart attacks than the preexisting conditions that caused those attacks, the causal chain is still sufficiently short to locate the claimed disability within the terms of the coverage exclusion. Sciranko makes no effort to argue otherwise.

Sciranko also fails to meet his burden in arguing that he is disabled exclusively because of congenitally small arteries. No medical record indicates that a physician found him disabled solely because of that condition rather than ASHD, angina, and hyperlipidemia. See Doc. # 45, Exh. 6 at 107-08, 185. Even Sciranko’s own allegations operate in significant tension with the notion that he is disabled purely as a result of congenital arterial deformity. The Complaint states that Sciranko “became totally disabled” “in about March of 2005.” Doc. # 1 at 6. If a non-progressive, congenital condition were the exclusive source of the disability, it is difficult to see why Sciranko would suddenly become disabled at 45 years of age, during the particular month in which he happened to receive bypass surgery to counteract the effects of ASHD and hyperlipidemia. Further undermining Sciranko’s argument, the statement he provided to Fidelity on April 18, 2005, identified the sources of his disability as small arteries, “chest pain,” and — in reference to ASHD — repeated surgery for “clogged” arteries. Doc. #45, Exh. 6 at 126. That statement clarifies that original artery size was only one among several contributing causes for the alleged disability. The coverage exclusion still applies in these circumstances because the presence of multiple causes of disability does not negate the causal relationship between the disability and each contributing cause; even if Sciranko’s disability “results from” original artery size, it still also “results from” his ASHD, hyperlipidemia, and angina.

The only evidence cited in support of Sciranko’s position is his own deposition testimony that Gosalia recommended limited physical activity because he has “smaller arteries than the average person.” Doc. #45, Exh. 3 at 136. When read in conjunction with other evidence pertaining to the nature of Sciranko’s disability, it is clear that Gosalia was not identifying any congenital problem as the exclusive or even primary source of the claimed disability. Indeed, no cited medical records mention congenital illness. As indicated above, Gosalia’s final disability assessment only rested on diagnoses of ASHD and hyperlipidemia. Doc. #45, Exh. 6 at 107-08.

Sciranko argues that the dispute over the cause of his claimed disability precludes summary judgment because it raises a complex medical question the resolution of which requires expert testimony. Existing expert evidence in the form of assessments from Punia, Gosalia, and Sa-vajiyani, however, already amply establishes the causal relationship between the preexisting conditions and the disability. See Doc. # 45, Exh. 6 at 107-08, 185. To the extent that Sciranko argues that additional expert testimony on causation is nevertheless required, his position finds no support in Arizona law. Arizona Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Nothing in this Rule requires additional expert testimony in the context of this case. The California precedent Sciranko relies on to argue otherwise applies California rules of evidence that are inapposite here. See Whiteley v. Philip Morris, Inc., 117 Cal.App.4th 635, 699, 11 Cal.Rptr.8d 807, 860 (2004); Carson v. Facilities Dev. Co., 36 Cal.3d 830, 844, 206 Cal.Rptr. 136, 686 P.2d 656, 664 (1984). Cabrera v. Cor- dis Corp., 134 F.3d 1418 (9th Cir.1998), is also distinguishable. Unlike that case, in which the plaintiff presented no evidence of causation to defeat a motion for summary judgment on her medical tort claim, the record now before the court is replete with evidence of causation between Sciran-ko’s preexisting conditions and his disability. Cabrera does not require what would amount to duplicative expert testimony. Id.

2. Sciranko Did Not Disclose his Preexisting Conditions Despite his Awareness of Them

Sciranko’s final argument against the applicability of Fidelity’s coverage exclusion is that he disclosed his angina to Kearney on October 5, 2001. Although Sciranko admits that he did not disclose his preexisting ASHD and hyperlipidemia, he appears to contend that his failure to do so is excused by his lack of awareness of those conditions at the time he signed the application.

The court rejects these arguments. An applicant for insurance is “under a duty to examine answers [noted on his application] to determine if they are accurate and complete.” Stewart v. Mut. of Omaha Ins. Co., 169 Ariz. 99, 107, 817 P.2d 44, 52 (1991). Even if an insurance agent makes mistakes in recording the applicant’s answers, the applicant becomes bound by the answers as recorded if he does not subsequently correct them despite having the opportunity to do so. Marine, 12 Ariz.App. at 230-31, 469 P.2d at 122-23; Greber v. Equitable Life Assurance Soc’y of the U.S., 43 Ariz. 1, 28 P.2d 817 (1934); Stewart, 169 Ariz. at 107, 817 P.2d at 52. The insurer is only prohibited from denying coverage on the basis of the incorrect answers where its own agent fraudulently recorded them without the fault, knowledge, or collusion of the applicant and induced the applicant to sign the application without reviewing it. Smith v. Republic Nat’l Life Ins. Co., 107 Ariz. 112, 117, 483 P.2d 527, 532 (1971).

a. Although there is a Genuine Dispute Regarding Whether Sciranko Orally Disclosed his History of Angina, it is Not Material Because Sciranko Had an Opportunity to Review his Application and Made no Changes

Fidelity has satisfied its initial burden in showing that its evidence, if uncontrovert-ed at trial, would only reasonably permit the conclusion that Sciranko was aware of and failed to disclose his angina. Sciranko and his wife both concede that he was aware of the condition prior to the date of the insurance application. Doc. # 45, Exh. 3 at 42^43; Doc. #45, Exh. 2 at 45-46. Sciranko even independently researched the condition to learn more about it after he received his diagnosis in 1993. Doc. # 45, Exh. 3 at 43. Fidelity also cites ample evidence that Sciranko failed to disclose the condition to Kearney. The preliminary questionnaire filled out by Kear-ney on September 26, 2001, was bereft of any reference to angina, and there is no testimony indicating that the omission is due to misconduct by Kearney. Doc. # 49, Exh. B. Kearney testifies that neither Sci-ranko nor his wife mentioned angina during the application interview. Doc. #45, Exh. 1 at 35. Despite uncontroverted testimony that Kearney never contacted Marcella Bappe regarding Sciranko’s physical condition, the nurse’s records also omit any reference to angina and, in the absence of any contrary evidence, strongly suggest that Sciranko repeatedly failed to disclose that condition. Doc. # 35, Exh. A at 3.

Whether Sciranko has produced sufficient controverting evidence is a closer question. Sciranko cannot personally recall whether he told Kearney about his angina, Doc. # 45, Exh. 3 at 28-29, but he argues that the issue is nevertheless genuinely disputed in light of his wife’s testimony that angina was revealed to Kearney during the application interview. The relevant portion of his wife’s deposition testimony reads as follows:

[Question by Defense Counsel:] Now, when I read the application, there’s no disclosure of a 1993 cardiologist treatment with Dr. Gosalia, there’s no disclosure of a diagnosis of angina, and there’s no disclosure that Adalat was being prescribed for that angina. Do you know why that is?

[Answer by Lauren Sciranko:] Because Mr. Kearney didn’t write it down.

Q: So you are alleging that you told Mr. Kearney in October of 2001 that all the way back in 1993, your husband was told by a cardiologist that there was something wrong with his heart, that it was diagnosed as angina, and that he had prescribed Adalat for that angina? Is that your testimony?

A: No.

Q: All right. Well, I need to know. Because I asked your husband this question as to why he didn’t sue Mr. Kearney, and the lawyer instructs him not to answer that question, and we’ll let the judge decide that issue.

But I need to know, since you claim you were in the room at the time, what are you alleging happened? Are you alleging-we know one thing for true. None of this, 1993 cardiac treatments and 1999 cardiac diagnoses, were disclosed on this October 2001 application. Are you alleging you and your husband told Mr. Kearney all about that, and he just didn’t write it down?

A: Yes.

Doc. # 45, Exh. 2 at 44-45. Citing Chanay v. Chittenden, 115 Ariz. 32, 35, 563 P.2d 287, 290 (1977), and Orme School v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1010 (1990), Fidelity objects that this testimony may not create a genuine dispute of material fact because it is internally contradictory. While federal law, rather than Chanay and Orme School, governs the standard for summary judgment in federal court, the Ninth Circuit has, like Arizona, adopted the rule that an individual may not create an issue of fact by strategically contradicting her own testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir.1991) (holding that where “the district court makes a factual determination that the contradiction was actually a ‘sham,’ ” the testimony may not preclude the entry of summary judgment).

The court is not convinced that Lauren Sciranko’s testimony falls within the rule of Kennedy. It is admittedly somewhat difficult to reconcile the answers to defense counsel’s line of questions. Lauren Sciranko explained that the information pertaining to her husband’s angina and accompanying medications and treatments was omitted from the application by Kear-ney’s mistake, but she also appears to have indicated otherwise in her terse second answer. It is a stretch to see how defense counsel’s second question materially differed from the others so as to explain Lauren Sciranko’s unique response. However, there is also scant basis for concluding that Lauren Sciranko strategically contradicted herself to create a “sham” issue of fact to avoid summary judgment. Her second answer was impromptu and entirely unexplained, so it is impossible to divine its rationale, and her answers were otherwise consistent. The court will therefore treat her testimony as genuinely contrary to the testimony provided by Kearney.

Fidelity’s uncontroverted evidence that Seiranko failed to disclose angina during his preliminary interview with Kearney over the telephone on September 26, 2001, and again during his examination with Marcella Bappe on October 10, 2001, does not undermine the conclusion that there is a genuine issue of fact. Although that evidence raises serious questions as to Lauren Sciranko’s credibility, the persuasiveness of her testimony in light of the contrary evidence is an issue that cannot be decided by the court.

To conclude that there is a genuine issue of fact, however, is not to say that the disputed fact is “material” under Rule 56. Even assuming that Seiranko told Kearney about his history of angina and that Kearney neglected to record that information, Arizona law permits Fidelity to deny coverage on the ground that the condition was undisclosed because Seiranko had an opportunity to review the application and signed the application without making any corrections. Marine, 12 Ariz. App. at 230-31, 469 P.2d at 122-23; Greber, 43 Ariz. 1, 28 P.2d 817. In providing his signature, Seiranko verified that he “read the questions and answers” and that the “statements made in [the] application are: complete; true; and correctly recorded.” Doc. # 45, Exh. 6 at 217. Fidelity had no reason to believe that Sciranko’s application contained any misstatements or omissions after obtaining this verification. Kearney testifies that he gave Seiranko an opportunity to review the application at the end of the interview, that Seiranko did review the document, and that Seiranko even read the verification statement prior to providing his signature. Doc. #45, Exh. 1 at 40-41, 94. While Seiranko disputes whether he actually reviewed the application, he never testifies that Kearney deprived him of an opportunity to do so. Doc. #45, Exh. 3 at 16, 27. Whether Seiranko took advantage of an opportunity to review the application cannot be a material dispute given that the very purpose of the rule in Marine and Greber is to place the burden of review on the applicant. The absence of evidence that Kearney induced Seiranko not to review the completed application prior to providing his signature renders inapplicable the rule in Smith. 107 Ariz. at 117, 483 P.2d at 532.

b. Seiranko Was Aware of His History of ASHD and Hyperlipidemia but Did Not Disclose Those Conditions

Even assuming that there is a genuine dispute of material fact pertaining to Sci-ranko’s disclosure of angina, there is no genuine dispute that Seiranko both was aware of and failed to disclose the other preexisting conditions that contributed to his disability. Fidelity proffers an abundance of evidence to satisfy its burden under Rule 56. Gosalia, who first diagnosed Sciranko’s ASHD, testifies that he has a “clinical habit” and “blanket policy” of informing patients of his diagnoses and test results, Doc. # 45, Exh. 4 at 8, 32, and his billing records reveal that Seiranko made a total of seven visits for electrocardiogram and other testing in connection with his heart disease between December 1993 and January 1996. Doc. # 35, Exh. E at 1; Doc. # 45, Exh. 4 at 37. In May 1999, when Seiranko first visited Punia, he responded “yes” in response to a question asking whether he ever had “heart disease.” Doc. #35, Exh. D at 1. Punia’s personal notes from that visit indicate that he was aware of Sciranko’s history of ASHD, hyperlipidemia, and use of aspirin and Lipitor. Given that Punia had yet to “obtain previous medical records and review” at the time he made those notes, the only possible source of his information was Seiranko himself. Doc. #45, Exh. 6 at 224. Other notes indicate that Seiranko received “coronary artery” “education/counseling” in May 1999 and that he was “informed” of test results showing extremely high levels