Amurgis v. Ell (19 Ohio App. 3d 169, 1984)

Strausbaugh, J.

Defendant-appellant, Nationwide Life Insurance Company (“Nationwide”), brings this appeal from a judgment of the Franklin County Court of Common Pleas setting aside a jury verdict rendered in its favor and ordering judgment for plaintiff-appellee, or, in the alternative, should such relief be overturned, granting plaintiff a new trial.

Plaintiff, Harriet Amurgis, filed suit against defendants, Nationwide and Dale Ell, seeking a declaratory judgment establishing the rights, duties and liabilities of the parties in regard to a health insurance contract issued to her as an individual by Nationwide through one of its agents, Dale Ell, and compensatory and punitive damages for the wrongful rescission of said insurance policy, the withholding of benefits due under the policy and intentional misrepresentations made in regard to plaintiffs coverage. The suit was tried before a jury on November 9, 1982 and, at the close of all the evidence, defendants moved for a directed verdict as to both Nationwide and Dale Ell. The trial court granted the motion as to Ell and dismissed the claims concerning punitive damages and fraud brought against Nationwide. The case was then submitted to the jury for deliberations, along with fifteen special interrogatories, and, on November 16, 1982, the jury rendered a general verdict in favor of the defendant.

On December 10, 1982, plaintiff filed a motion to set aside the verdict and enter judgment in her favor for the amount stipulated by the parties as due under the insurance policy ($13,602.97). Plaintiff argued that the answers given to the interrogatories were inconsistent with the jury’s general verdict and that the judgment was contrary to law. In addition, plaintiff asked that should the court refuse to enter judgment in her favor for the reasons cited above, the court should grant plaintiff a new trial pursuant to Civ. R. 49(B), 50 and/or 59. On February 1, 1983, the trial court granted plaintiffs motion and entered judgment in favor of the plaintiff in the amount of $13,602.97, and, in the alternative, should the judgment be set aside, the trial court ordered that a new trial be granted to plaintiff. In its appeal, defendant Nationwide raises the following two assignments of error:

“1. The trial court’s decision to overturn the jury verdict was erroneously based upon a faulty interpretation of R.C. § 3923.04.

“2. The trial court’s alternative ruling granting a new trial was erroneous under Civil Rules 49 and 59, O.R.C.P. in that no grounds existed to award a new trial.”

In June 1979, plaintiff applied for a health insurance policy with Nationwide. At trial, plaintiff testified that Dale Ell, acting as an authorized agent for Nationwide, helped her fill out an application for insurance. One of the questions appearing on the application specifically asked, in part:

“1. Have you (or any of your dependents) been hospitalized, consulted with or been treated by a physician for any of the following (check yes or no):

“Heart or Blood Disorders - No”

A negative response appeared on plaintiff’s application. The application was subsequently approved and, on July 1, 1979, defendant issued a policy of health insurance to plaintiff.

On July 7,1979, plaintiff was admitted to Riverside Methodist Hospital suffering from acute chest pains. Plaintiff was then referred to Dr. Nicholas Kouchoukos at the University of Alabama in Birmingham, Alabama, for surgery. During the surgery, an aortic aneurysm was removed from plaintiff and a dacron graft was used to replace the lost section. In addition, Dr. Kouchoukos replaced the aortic valve of the heart with a metal valve.

Plaintiff submitted her claim for medical expenses to defendant in October 1979 and, in November 1979, after an investigation, defendant rejected the claim and rescinded plaintiff’s policy. During the investigation, it was discovered that plaintiff had previously been treated for a heart disorder and had undergone surgery at the age of ten for a narrowing of the aortic artery. The cause of the disorder was linked to a congenital malformation. Evidence also showed that plaintiff had regularly consulted a cardiologist in regard to her condition and that, from September 1977 to August 1978, she had visited her cardiologist on at least seven occasions. Plaintiff alleged at trial that Ell had filled out the application for her and that she had informed him of her heart condition. However, Ell chose not to indicate her condition on the application. Ell denied that Amurgis had told him that she suffered from any heart disorder. The health insurance policy issued to plaintiff specifically provides, in part:

“(b) No claim for loss incurred with respect to any person one year from the date such person becomes covered under this policy shall be reduced or denied on the ground that a disease or physical condition of such person not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of such person.