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Wallis v. HCC Life Insurance Co.

United States District Court, D. New Hampshire

March 3, 2017

Warren Wallis, Plaintiff
HCC Life Insurance Company, Defendant Opinion No. 2017 DNH 039


          Steven J. McAuliffe United States District Judge.

         Warren Wallis originally brought this action in New Hampshire Superior Court, seeking a judicial declaration of entitlement to coverage under a short-term major medical insurance policy issued by HCC Life Insurance Company. See N.H. Rev. State. Ann. (“RSA”) 491:22 (“Declaratory Judgments”). HCC Life removed the action, invoking this court's diversity jurisdiction. It then filed two counterclaims, seeking a judicial declaration that it properly rescinded the policy or, in the alternative, that Wallis is not entitled to coverage under that policy.

         Pending before the court is HCC Life's motion for summary judgment. Wallis objects. For the reasons discussed, that motion is granted.

         Standard of Review

         When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the non-moving party and resolv[e] all reasonable inferences in that party's favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “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). In this context, “[a]n issue is ‘genuine' if it can be resolved in favor of either party, and a fact is ‘material' if it has the potential of affecting the outcome of the case.” Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016) (citations and internal punctuation omitted). Nevertheless, if the non-moving party's “evidence is merely colorable, or is not significantly probative, ” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). In other words, “[a]s to issues on which the party opposing summary judgment would bear the burden of proof at trial, that party may not simply rely on the absence of evidence but, rather, must point to definite and competent evidence showing the existence of a genuine issue of material fact.” Perez v. Lorraine Enterprises, Inc., 769 F.3d 23, 29-30 (1st Cir. 2014).

         The key, then, to defeating a properly supported motion for summary judgment is the non-movant's ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed.R.Civ.P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party's bald assertions, speculation, and unsupported conclusions. See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).


         HCC Life claims that when Wallis completed his application for insurance, he was obligated, but failed, to disclose the fact that he had been diagnosed with, and treated for, “heart disease” within the past five years. Consequently, a discussion of Wallis's medical history - at least as it relates to his cardiac issues - is warranted.

         I. Wallis's Medical History.

         On January 9, 2011, Wallis went to the emergency room at the Monadnock Community Hospital, in Peterborough, New Hampshire, with complaints of rapid and erratic heart beats over a period of about two hours, and difficulty sleeping for about a week. As part of his medical history, Wallis reported that one of his siblings suffers from cardiac arrhythmia, though he did not know the details. Upon examination, it was noted that he was in atrial fibrillation. He was given aspirin and Lopressor (metoprolol), a type of drug known as a beta-blocker, and he eventually converted back into a normal sinus rhythm.[1] Later, an electrocardiogram (EKG) revealed that, even though he was no longer in atrial fibrillation, “changes were still prominent especially with the anterior T-wave inversions that were of concern and the incomplete left bundle-branch block and LVH.” Wallis was admitted to the hospital for observation and a cardiology consult.

         The following day, he met with a cardiologist, Dr. Beatty Hunter, who reported Wallis's “permanent problem list” as “organic heart disease, ” which included “new onset atrial fibrillation, duration 2 hours, ” an “incomplete left bundle branch block, ” and “mild left ventricular hypertrophy.” Later that day, Wallis was discharged and prescribed Toprol XL, a low- dose beta-blocker, and aspirin (325 mg per day). He was also told he could engage in physical activity “as tolerated” and instructed to eat a “heart healthy” diet. On January 18, 2011, he underwent a stress echocardiogram, at which it was noted that “there was exercised-induced ectopy: AFib/flutter at peak heart rate.”

         On January 25, 2011, Wallis had a follow-up visit with another cardiologist, Philip Fitzpatrick, M.D. Dr. Fitzpatrick reported that Wallis “has a history of paroxysmal atrial fibrillation”[2] and noted that his stress echocardiogram “was remarkable for the development of recurrent atrial fibrillation.” He noted that Wallis seemed to be tolerating the beta-blocker well (though he did report feeling a bit “fuzzy”). In his “Clinical Summary, ” Dr. Fitzpatrick, like Dr. Hunter, reported that Wallis suffered from “organic heart disease, ” and noted the new onset atrial fibrillation, incomplete left bundle branch block, and mild left ventricular hypertrophy. Wallis was again prescribed a daily beta-blocker and aspirin.

         On June 15, 2011, at the request of Dr. Fitzpatrick, a third cardiologist - Jamie Kim, M.D. - consulted with Wallis for “symptomatic paroxysmal atrial fibrillation.” Dr. Kim noted that Wallis presented to the hospital with atrial fibrillation and has been “treated with ASA [aspirin] and a beta-blocker since then.” He also noted that, “there was some concern of possible side effects to beta-blocker therapy initially, but [Mr. Wallis] states that now he seems to tolerate the medication without noticeable side effects.” In his “Clinical Summary” and “Assessment, ” Dr. Kim noted that Wallis suffers from “organic heart disease, ” but has had “good control of arrhythmias on current regimen. I agree with ASA [aspirin] and beta-blocker therapy for now.” And, finally, Dr. Kim opined that if Wallis should have “recurrences of symptomatic PAF, then antiarrhythmic [medications] should be considered as the next step. If he fails an antiarrhythmic, then ablation [a medical procedure aimed at correcting atrial fibrillation] can be considered. I discussed the importance of treatment of AF within 48 hours should a sustained episode recur.”

         In October of 2011, Wallis's primary care physician, Dmitry Tarasevich, M.D., gave Wallis a “Comprehensive Medical Evaluation, ” at which Wallis reported that he had been feeling “tired lately” and experiencing occasional heart palpitations -a symptom of atrial fibrillation. Dr. Tarasevich and Wallis also discussed the possibility of Wallis undergoing the ablation procedure that Dr. Kim had mentioned. Wallis saw Dr. Kim again in December of 2011 for “follow-up of symptomatic PAF.” He stated that he did not believe that he had suffered any recurrences of atrial fibrillation, but reported that he was feeling more fatigued, speculating that it might be related to his beta-blocker therapy. Dr. Kim opined that “it is difficult to know if Mr. Wallis is having symptoms related to [atrial fibrillation] or to medical therapy. If it becomes clear that PAF is driving his symptoms, we discussed options for treatment, including alternative medication versus catheter ablation. Preliminarily, he seems to favor the latter approach.” In an effort to address a potential source of Wallis's fatigue, Dr. Kim adjusted Wallis's medications to taper him off the beta-blocker and recommended a follow-up visit in two months.

         In February of 2012, Wallis again saw Dr. Kim as a “follow-up of symptomatic PAF.” He reported that Wallis had stopped taking the beta-blocker and was not aware of having experienced further episodes of symptomatic atrial fibrillation. But, they again discussed various options (including ablation) should those symptoms recur. Dr. Kim recommended a follow-up visit in six months.

         In August of 2012, Wallis had another office visit with Dr. Kim. He reported that he continued to feel better off the beta-blocker and had not had any recurrence of symptoms. Dr. Kim did note that Wallis reported “recent insomnia and anxiety; questionable etiology.” And, as he had done previously, Dr. Kim continued to report that Wallis suffered from “organic heart disease, ” with “left bundle branch block” and “mild left ventricular hypertrophy.” Although Wallis was no longer taking a beta-blocker, Dr. Kim continued to prescribe daily aspirin (325 mg). Dr. Kim also recommended another follow-up visit in one year (though the record does not appear to contain Dr. Kim's notes from that visit).

         In October of 2012, Wallis had an appointment with his primary care physician, Dmitry Tarasevich, M.D. In discussing Wallis's atrial fibrillation, Dr. Tarasevich noted that Wallis was “Doing well. In regular rhythms. Trigger avoidance on Aspirin. Follow-up with Dr. Kim yearly. No need for ablation.”

         In summary then, Wallis was admitted to the hospital on January 9, 2011, diagnosed with atrial fibrillation, and treated with a beta-blocker and aspirin. During a stress echocardiogram, he experienced “exercised-induced ectopy: AFib/flutter at peak heart rate.” Through at least June of 2011, he tolerated the medications well and maintained good control of arrhythmias. A few months later, in October of 2011, he reported having occasional heart palpitations. He then appears to have remained symptom free for at least a few months and, in December of 2011, Dr. Kim began tapering him off the beta-blocker. Nevertheless, he was instructed to continue taking a daily regimen of aspirin. From the date of his hospital admission, through at least August of 2012 (approximately 18 months) he was routinely seen by cardiologists, as a follow-up to the incident that led to his admission to the hospital. Each of the three consulting cardiologists reported that Wallis suffers from “organic heart disease.” And, during that period, Wallis repeatedly discussed with his treating physicians the fact that, due to his heart disease, he might need to undergo either antiarrhythmic drug therapy, cardioconversion, or catheter ablation.

         II. The Policy and Policy Application.

         At some point in early 2014, Wallis began looking into a short-term, non-renewable medical insurance policy with HCC Life. Insurance policies of that sort are intended to provide comparatively low-cost, short-term medical coverage to people who experience gaps in insurance coverage (due, for example, to a change in jobs). Wallis testified that he looked into getting coverage under the Affordable Care Act, ...

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