existing life insurance policies, id. at 309, prior
hospitalizations for depression, Small, 617 N.E,2d at 83, a prior
hospitalization for “palpitation and apprehension,” Hatch v.
Woodmen Accident & Life Co., 409 N.E.2d 540, 543 ({I1l. App. Ct.
1980), and a prior diagnosis of silent myocardial eschemia, a heart
condition, Methodist Med. Ctr. of Ill., 38 F. 3d at 321.

Any reasonable person would agree that a life insurer assumes
a substantially greater risk by insuring a five-foot-nine, 319-
pound applicant than by insuring a five-foot-nine, 240-pound
applicant. Thus, Mr. Kelley’s misrepresentation of his weight was
material, and summary judgment in favor of Fortis is appropriate.

Therefore, the defendant’s motion for summary judgment is
GRANTED.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: October /7 , 2002



1993). Ms, Ward~Kelley does not dispute the authenticity of Mr.
Kelley’s signature. Thus, Mr. Kelley represented that his weight
was 240 pounds at the time he applied for life insurance,

Ms, Ward-Kelley argues that Mr. Kelley might actually have
weighed 240 pounds at that time. If Mr, Kelley weighed 240 pounds
on March 8, 1999, then he would have lost at least 79 pounds in the
74 days since December 24, 1998. Such a drastic and sudden loss is
not plausible. However, even if such a loss did take place, Mr.
Kelley’s statement that he had not lost more than 15 pounds during
the preceding five years would have been a misrepresentation.

Mr. Kelley misrepresented his weight and his medical history
on his insurance application. The only question that remains is
whether these misrepresentations were material. A misrepresentation
is material if “reasonably careful and intelligent persons would
regard the facts as stated to substantially increase the chances of
the event insured against, so as to cause rejection of the
application.” Methodist Med. Ctr. of Ill. v. Am. Med. Sec. Inc., 38
F.3d 316, 320 (7th Cir. 1994), quoting Small, 617 N.E.2d at 896,
897. Materiality is ordinarily a question of fact, but “where the
misrepresentation is of such a nature that all would agree that it
is or is not material, the question is appropriate for summary
judgment.” Garde v. Country Life Ins. Co., 498 N.E.2d 302, 308

(Ill. App. Ct. 1986). Misrepresentations which have been held to

meet this standard include an applicant’s failure to disclose



. Minute Order Torm (06°97)

* IS United States District Court, Northern District of Illinois
venir Magistrate Fade Elaine E, Bucklo har and Judge
CASE NUMBER OL C 7808 DATE 10/17/2002
CASE Ward-Kelley vs. Fortis Insurance Co.
TITLE

{in the following box (u) indicate the parly filing the motion, e.g,, plaintiff, defendunt, 3rd party plaintifY, and (b) state briefly the nuture

of the motion being presented.
MOTION: Presented. |

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) c Brief in support of motion duc

QO Answer briet to motion due___. Reply to answer brief due

(4) o Ruling/Hearing on set for a

(5) u Status hearing{held/continued to] [set for/re-set for]on_ set fort

(6) Oo Pretrial conference[held/continued to] [sct for/re-set for]on set for at.

(7) Oo Crial[set for/re-set for] on at _

(8) Oo {Bench/Jury trial] [Hearing] held/continued to at

(9) u ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLaocal Rule 41.1 CFRCP41(a)(1) C1 FRCP41(a\(2).

(do [Other docket entry] | Enter Memorandum Opinion and Order granting defendant’s motion for
summary judgment, Judgment is therefore entered in favor of defendant and against plaintitl. Any pending
motion in this case is terminated as moot.

ay || [lor further detail see order attached to the original minute order.)

No notices required, advised in open court

No notices required, umber af notices

VW | Notices mailed by judge's staff. OCT 18 2002

Notified counsel hy telephone.

dare docketed

Doeketing 0 muil notices.

Y. | Mail AQ 450 forma

Copy to judge/magistrate judge.

‘luchctinw deputy initials

ywi72002

courtroorn,
MPI deputy’s
initials

Date/lime received in
central Clerk's OMice eg clepay ital



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETER

cy 28 207

TINA M. WARD-KELLEY,
Plaintiff,
Vv.
No. 01 ¢ 7808
FORTIS INSURANCE CO.,

Defendant.

MEMORANDUM OPINION AND ORDER

Tina Ward-Kelley is the primary beneficiary of her husband’s
life insurance policy. Larrue Kelley purchased the policy in 1999
from Fortis Insurance Company (“Fortis”). On February 16, 2000, Mr.
Kelley was killed in an accident. Ms. Ward-Kelley made a claim on
the policy, which Fortis denied on the grounds that Mr. Kelley
misrepresented his weight and medical history during the
application process, The insurance application form, which Mr.
Kelley signed on March 8, 1999, stated that Mr. Kelley was five
feet nine inches tall and weighed 240 pounds. The form further
stated that Mr. Kelley had not had a physical examination, had any
medical treatment, or taken any medications during the preceding
five years, nor had he lost more than 15 pounds during the previous
10 years. It is uncontested that Mr. Kelley in fact sought
treatment from a Dr. Aldover at a diet clinic between September 11
1997 and December 24, 1998, during which time his weight fluctuated

between 319 and 336 pounds. He was also taking the drug phentermine

US



to help control his weight. According to his autopsy report, at the
time of his death, Mr. Kelley weighed 335 lbs. Ms. Ward-Kelley sued
Fortis for breach of contract in the Circuit Court of Cook County,
and the defendant removed the case. Fortis now moves for summary
judgment.

In Illinois, a life insurance policy is void if the insured
made misrepresentations that materially affect the risk undertaken
by the insurer. Federal Kemper Life Assur. Co. v. Eichwedel, 639
N.E.2d 246, 251 (111. App. Ct. 1984). Fortis asserts that it would
not have issued a policy to Mr. Kelley on the stated terms had it
had complete and honest information regarding his physical
condition, and that it should therefore be excused from performance
on the policy. Grant Aff. at Paragraph 8. Ms. Ward-Kelley counters
that all information on the insurance application was either
accurate, immaterial, or not attributable to Mr. Kelley, as the
form was actually filled out by Fortis’ agent.

In deciding a motion for summary judgment, I evaluate the
facts in the light most favorable to the nonmoving party. Popovits
v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999).
Even applying this standard, I find that no genuine issues of
material fact exist. Whether Mr. Kelley or Fortis’ agent actually
wrote Mr. Kelley’s weight on the insurance form is irrelevant; an

insured is bound by the representations on a form he signs. Small

v. Prudential Life Ins. Co., 617 N.E.2d 80, 83 (Ill. App. Ct.