*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30092 

Summary Calendar

_____________________

RICKY ENGLISH,

Plaintiff-Appellant,

v.

JACKSON NATIONAL LIFE INSURANCE COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(95-CV-2324-R)

_________________________________________________________________

August 1, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Ricky English (“Ricky”) brought claims against Jackson

National Life Insurance Company (“JNL”) to recover death benefits

under a life insurance policy. Ricky appeals the district

court’s grant of summary judgment in favor of JNL. We affirm.

I. FACTS AND PROCEDURAL HISTORY

In August of 1993, JNL issued a life insurance policy to
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Ricky as owner and beneficiary on the life of his uncle, William

English (“William”). Prior to obtaining this policy, Ricky

contacted Henry Albert (“Albert”) and told him that he was

interested in purchasing a life insurance policy on the life of

William. At the time, Albert was licensed to sell insurance for

several companies, and life insurance and annuities were the

primary focus of his business. Subsequently, Ricky, William, and

Albert met to discuss life insurance at Ricky’s home. Albert

reviewed a JNL insurance application with William and Ricky that

included questions concerning William’s medical history. After

responding out loud to Albert’s questions read from the

application, William signed the application in three places

although the section containing questions about his medical

history remained blank. At William’s request, Ricky then made a

copy of the application to keep. 

Several days later, Albert requested that Ricky come to his

office. At this meeting, Ricky gave Albert a check for the

initial premium, provided some additional information on the

application, and signed the application as owner and applicant in

two of the places previously signed by William. Ricky states

that he does not remember whether the section containing

questions about William’s medical history was still blank or

filled in at this time. 

Upon accepting the application, JNL issued a policy

effective August 12, 1993, payable upon William’s death in the
3

amount of $150,000. This policy was delivered to Ricky’s place

of business. In part, the policy provided that:

The consideration for issuing this Policy is the

application and the payment of the first premium. This

Policy and the application, a copy of which is attached

and made part of the policy, constitute the entire

contract between the parties. All statements made in

the application will, in the absence of fraud, be

deemed representations and not warranties; and no

statement will void this Policy or be used as a defense

to a claim unless it is contained in such written

application.

On the final application, which was attached to the policy

received by Ricky, all of the questions concerning William’s 

medical history were answered in the negative. 

On February 27, 1994, William died. Ricky filed a claim for

death benefits under the policy in April of 1994. Because

William died within the two-year contestable period of the

policy, JNL investigated the information provided on the

application. Upon reviewing medical records, JNL learned that,

contrary to the answers on the application, William’s medical

history included smoking within a year of the application and the

following hospital admissions: 1) February of 1989 for an acute

myocardial infarction secondary to congestive heart failure,

coronary atherosclerosis, and diabetes mellitus; 2) March of 1989

for coronary bypass surgery, when the principal diagnosis was

intermediate coronary syndrome secondary to congestive heart

failure and diabetes mellitus; and 3) April of 1989, April of

1991, and July of 1992 for a second below-the-knee amputation as
4

a result of the complications of diabetes mellitus and peripheral

vascular disease. 

In a letter dated December 9, 1994, JNL notified Ricky that

his claim for death benefits was denied because of

misrepresentations contained in the application which led JNL to

declare the policy null and void. JNL further asserted in this

letter that had they known of William’s medical history, the

policy would not have been issued. 

JNL noted that several of the questions on the application

concerning William’s medical history that were answered “no” were

important in denying Ricky’s claim. Specifically, they listed

the following questions:

2. Have you ever been treated for, or ever had

any indication of:

d. Chest pain, discomfort or tightness;

palpitations, high blood pressure, rheumatic

fever, heart murmur, heart attack or other

disorder of the heart or blood vessels?

g. Diabetes: thyroid or other glandular or

endocrine disorders?

i. Deformity, lameness or amputation?

j. Disorder of skin, lymph glands, cyst, tumor,

or cancer?

k. Allergies; anemia or other disorder of the

blood?

3. Have you, in the past five years:

a. Consulted or been treated by a physician or

other medical practitioner?

b. Been a patient in a hospital, clinic, or

medical facility?

c. Had an electrocardiogram, x-ray or other

diagnostic test?

4. Are you presently taking any prescribed

medication?
5

6. Have you ever requested or received a

pension, benefits, or payment because of an

injury, sickness or disability?

8a. Have you smoked cigarettes in the past 12

months?

On February 27, 1995, Ricky filed suit in Louisiana state

court seeking recovery of death benefits under the policy. The

matter was removed to federal court based on diversity

jurisdiction. The parties filed cross motions for summary

judgment. On October 17, 1996, the trial court granted summary

judgment in favor of JNL. Ricky then filed a motion for a new

trial and/or to alter or amend judgment and/or for

reconsideration. This motion was denied on December 12, 1996. 

The district court concluded that there was no genuine issue of

material fact regarding JNL’s affirmative defense based on

Louisiana Revised Statute § 22:619 that would allow it to deny

JNL’s motion for summary judgment regardless of whether the

ultimate fact finder was a judge or jury. Ricky timely appealed.

II. STANDARD OF REVIEW

In reviewing the district court’s grant of summary judgment,

we review the issues de novo, applying the same criteria used by

the district court in initially evaluating the motion. Norman v.

Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). Summary

judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any
6

material fact and that the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56(c). The evidence and

inferences to be drawn therefrom are reviewed in the light most

favorable to the nonmoving party. FDIC v. Dawson, 4 F.3d 1303,

1306 (5th Cir. 1993), cert. denied, 512 U.S. 1205 (1994). 

Summary judgment is not appropriate if the evidence would allow a

reasonable jury to return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

III. DISCUSSION

JNL asserts that Ricky’s claim for benefits was denied

because Ricky made a material misrepresentation with the intent

to deceive in applying for the policy and, thus, JNL has no

liability to him under the policy. Louisiana Revised Statute

§ 22:619 sets forth the burden that JNL must carry in order to

prove this affirmative defense:

In any application for life or health and accident

insurance made in writing by the insured, all

statements therein made by the insured shall, in the

absence of fraud, be deemed representations and not

warranties. The falsity of any such statement shall

not bar the right to recovery under the contract unless

such false statement was made with actual intent to

deceive or unless it materially affected either the

acceptance of the risk or the hazard assumed by the

insurer.

LA. REV. STAT. ANN. § 22:619(B) (West 1995). Courts interpreting

this statute place the burden on the insurer to prove that 1) the

applicant’s statement was false, 2) the false statement was made

with the intent to deceive, and 3) the false statement materially
 

1 Ricky conceded in his motion for partial summary judgment

that there is no evidence other than that which is before the

court on the issue of intent.

7

affected the acceptance of the risk by the insurer or the hazard

assumed. Wohlman v. Paul Revere Life Ins. Co., 980 F.2d 283, 285

(5th Cir. 1992). 

For the purpose of his motion for partial summary judgment,

Ricky conceded that the information provided in the application

was false and that there was a material misrepresentation, but

argued that JNL could not carry its burden of proof to show

intent to deceive. He stated that there was no genuine issue of

material fact concerning intent. On appeal, Ricky now contends

that the district court erred by granting summary judgment

because a genuine issue of fact exists as to whether Ricky

possessed the requisite intent to deceive. 

The burden of proving intent to deceive may be satisfied by

showing “facts and circumstances surrounding the application

process indicating the insured’s knowledge of the falsity of the

representations made in the application and his recognition of

the materiality of his misrepresentations or from circumstances

which create a reasonable assumption that the insured recognized

the materiality.” Wohlman, 980 F.2d at 286.

Ricky asserts that while a misrepresentation in fact was

made on the insurance form received by the insurer, neither he

nor William made any false statement.1 Ricky contends that
8

William answered all the questions Albert asked from the

application, medical and otherwise, truthfully and completely. 

According to Ricky, both he and William relied upon Albert’s

expertise and special knowledge and assumed that Albert was doing

what was required with regard to correctly and completely filling

in the application. Ricky claims that Albert provided the false

information on the application; he further contends that Albert

should be considered an agent of JNL and that Albert’s acts in

erroneously filling out the application form should be considered

the acts of JNL and not binding on Ricky. Under this theory,

Albert’s knowledge of William’s true medical history would be

imputable to JNL, and JNL could not then claim reliance on any

misstatement of fact, and there would therefore be no legally

cognizable misrepresentation. We disagree.

Assuming, arguendo, that Albert should be considered an

agent of JNL, “[t]he rule that the insured is not responsible for

false answers in an application, where they have been inserted by

the agent through mistake, negligence, or fraud, is not

absolute.” Harris v. Guaranty Income Life Ins. Co., 226 La. 152,

157 (1954). Under Louisiana law, when the agent of an insurance

company “by reason of mistake, fraud, omission, or negligence

inserts erroneous or untrue answers to the questions contained in

the application, these representations bind the insurer, but are

not binding upon the insured, provided he (the insured) is

justifiably ignorant thereof, has no actual or implied knowledge
9

thereof, and has been guilty of no bad faith or fraud.” Id.

(emphasis added). Ricky was not justifiably ignorant of the

misrepresentations in the application. Ricky claims that he did

not read the policy including the attached application when it

was delivered to his office although he may have “glanced through

it.” As a result, Ricky maintains that he was not aware of any

incorrect information on the application until after William’s

death despite the fact that he had the policy and the portion of

the application containing erroneous answers in his possession

for approximately six months before William died. Even viewing

Ricky’s assertions in the most favorable light, as we must, he

“could not hold the policy delivered to him without becoming

chargeable with knowledge of its contents, including the

application which was attached to the policy and expressly made a

part of it.” New York Life Ins. Co. v. Stewart, 69 F.2d 957, 958

(5th Cir. 1934). “By accepting and retaining possession of the

policy without objection, the insured adopted as his own the

answers to questions contained in the attached application,

whether those answers were or were not made . . . by the insured

prior to his signing that application.” Id. 

We find it significant, moreover, that the signatures of

both Ricky and William appear below the following statement on

the insurance application:

I (we), hereinafter jointly referred to as I, represent

that all statements and answers made in all parts of

this application are full, complete and true to the
10

best of my (our) knowledge and belief. It is agreed

that: (A) All such statements and answers shall be the

basis of any insurance issued. (B) No agent can make,

alter or discharge any contract, accept risks, or waive

the Company’s rights or requirements.

Ricky was aware at the time he signed the application that

William had signed the form with blank questions. Ricky contends

that despite his usual practice of not signing things if he did

not read them or know what they contained, he did not read this

language at the time he signed the application because Albert

just put the form in front of him and asked him to “sign here.” 

While Ricky states that he is unsure whether the section of

the application concerning William’s health was filled out when

he signed the application, his signature appears on the form

attesting to the false information. We agree with the district

court’s conclusion that even if the key questions on the

application form were blank when both Ricky and William signed

the application, their signatures representing that the answers

in all parts of the application were true, correct, and complete

constitute a material misrepresentation made by both William and

Ricky.

As to Ricky’s recognition of the materiality of the

misrepresentations made on the application, Ricky’s deposition

testimony indicates that he was aware of their materiality. He

admitted that the amount of insurance that he was able to obtain

on William’s life was far in excess of what he expected to get

for the premium he paid in view of William’s health condition. 
11

He also understood that JNL was going to rely on what was written

in the application to decide whether to issue life insurance. 

Finally, he indicated that he “kind of had doubts” about whether

he could get any insurance at all because William was a smoker,

an amputee, and a diabetic; and he knew that if his uncle had

written something on the application indicating that he was not

in good health, then JNL might not have issued any life

insurance. Despite this recognition, Ricky never asked any

questions as to why the section of the application concerning

medical history remained blank. 

Based on the misrepresentations made by both Ricky and

William, along with Ricky’s appreciation of the materiality of

information concerning William’s medical history, we agree with

the district court’s finding that “the conclusion [is]

inescapable that [Ricky] and his uncle manifested an intent to

deceive.” Ricky’s denial of intent to deceive does not create a

material issue of fact.

Alternatively, Ricky asserts that the district court erred

in reaching the issue of intent. Ricky claims that Louisiana

Revised Statute § 22:617 controls the standing of JNL to raise

the affirmative defense of material misrepresentation with the

intent to deceive. That statute provides: 

A. Any application for insurance in writing by the

applicant shall be altered solely by the applicant or

by his written consent . . .B. Any insurer issuing an

insurance contract upon such an application unlawfully

altered by its officer, employee, or agent shall not
 

2 Ricky also claims that § 22:617 is applicable because JNL

admits that the misrepresentations concerning William’s health

were not present on the application when William signed the

application. Ricky believes that this admission can be derived

from a reading of two undisputed material facts that he

submitted: 

4. The insurance application signed by William English was

essentially blank.

6. Neither plaintiff nor William English filled in any

additional information on the application form.

We do not agree that this amounts to such an admission. 

 

3 Ricky also asserts that Louisiana Revised Statute

§ 22:618 should estop JNL from seeking recision of the policy

based upon material misrepresentations in the policy application. 

12

have available in any action arising out of such

contract, any defense which is based upon the fact of

such alteration, or as to any item in the application

which was so altered.

LA. REV. STAT. ANN. § 22:617 (West 1995). Ricky believes that

this statute indicates that the district court should not have

reviewed the evidence concerning the applicability of Louisiana

Revised Statute § 22:619. Ricky asserts that circumstantial

evidence would allow an inference that, after he signed the

application, someone else (presumably Albert) filled in the

erroneous information on William’s medical history. However,

beyond this assertion, the only relevant evidence on the record

is that Ricky does not remember whether the section containing

questions about William’s medical history was still blank or

filled in at the time he signed the application.2 As a result,

we conclude that the district court did not err in applying

Louisiana Revised Statute § 22:619 to this case.3
This statute provides:

No application for life or health and accident

insurance shall be admissible in evidence in any action

relative to the policy or contract, unless a correct

copy of the application was attached to or otherwise

made a part of the policy, or contract, when issued and

delivered.

LA. REV. STAT. ANN. § 22:618(A) (West 1995). Ricky claims that

this statute is applicable because the application attached to

the policy delivered to his office was not a “correct copy” in

that it did not include a part of the application; the agent’s

underwriting report. However, the relevant portion of the

application containing erroneous information about William’s

medical history was attached to the policy. Further, Ricky

refers to the application several times in his deposition and

motion for partial summary judgment without raising this statute

to object to the application’s admissibility. We conclude that

this statute is not applicable to this case. 

 

4 Because we affirm the district court’s grant of summary

judgment on other grounds, we do not discuss JNL’s alternative

argument that the policy is null and void because error vitiated

the parties’ consent to the insurance contract. 

13

IV. CONCLUSION

For the foreging reasons, we AFFIRM the district court’s

grant of summary judgment in favor of JNL.4