*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this opinion should not be published and is not precedent except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. 96-31075 

Summary Calendar

_____________________

CYNTHIA POWELL GUIDRY,

Plaintiff-Appellant,

v.

THE PAUL REVERE LIFE INSURANCE COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-1579)

_________________________________________________________________

June 26, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Cynthia Powell Guidry brought this lawsuit against The Paul

Revere Life Insurance Company (“Paul Revere”) to recover benefits

under a disability income insurance policy, penalties, and

attorney’s fees. Guidry appeals the district court’s dismissal

of her claims following a jury verdict in favor of Paul Revere. 

We affirm.
2

I. FACTS AND PROCEDURAL HISTORY

In October of 1993, Guidry bought a disability income

insurance policy from Paul Revere. Prior to obtaining the

policy, Guidry was required to fill out an application which

included questions about her medical history. Guidry’s

application was completed at her residence by Carla Wormser, an

agent acting for Paul Revere. Wormser read the questions out

loud and filled out the application based on Guidry’s responses. 

Two questions on the application are important to this case. 

First, question 6(c) asks “[h]ave you ever been treated for or

had any known indication of . . . [d]isease or disorder of the

stomach or intestines, liver, thyroid, bones, muscles, joints,

back or neck?” (emphasis in original). This question is answered

“no.” Next, question 7 asks “[i]n the past 5 years have you had

any medical advice or operation, physical exam, treatment,

illness, abnormality or injury not listed above?” (emphasis in

original). This question is answered “yes.” The question

continues, “[a]re you currently receiving any medical advice or

treatment?” This question is also answered “yes.” 

If the applicant answers “yes” to any questions pertaining

to medical condition, question 9 then asks for detailed

explanations including exact diagnoses, dates, duration,

physicians and addresses. Guidry’s application contains detailed

information concerning 1) fibroids, endometriosis, and a total
3

hysterectomy, 2) fibrosistic disease of the left breast,

3) surgery for a deviated septum, 4) flu and sinus infection, and

5) hormone replacement. After Wormser completed the application,

Guidry was asked to read and sign the application. Guidry also

signed an authorization for the release of medical information. 

Guidry contends that, in filling out the application, she

told Wormser about an incident she had in 1989 when she twisted

her low back, discussed several incidents or episodes when she

suffered from low back pain, and told her that surgery was

contemplated at one time. Guidry further asserts that after she

revealed that she had not had surgery and had been working for

the past three and one-half years without any back trouble,

Wormser indicated that she was not going to check “yes” in answer

to question 6(c). Wormser, on the other hand, testified that in

answer to question 6(c), Guidry said “no” and Wormser recorded

Guidry’s response by placing an “x” in the appropriate box on the

application. 

Upon accepting the application, Paul Revere issued a policy

dated October 11, 1993, which provided for monthly disability

benefits in the amount of two thousand dollars. The policy

excluded coverage for a pre-existing condition not disclosed on

the application. 

On November 29, 1994, Guidry suffered a back injury during a

work-related emergency preparedness drill. After an unsuccessful

attempt to return to work one week later, Guidry sought medical
4

attention. As of the time of trial, Guidry has still been unable

to return to work.

In January of 1995, Guidry submitted a claim for disability

benefits to Paul Revere. On the section of the claim form

requesting information about similar injuries, Guidry indicated

that she had a similar injury in September of 1989. She reported

that she had a “bulging L4-5 disc” and that she had been treated

by Dr. Charles Olivier and Dr. Stephen Goldware.

Diane Kacevich, an associate claim consultant for Paul

Revere, was responsible for handling Guidry’s claim. Kacevich

obtained and reviewed medical treatment records from Dr. Olivier

and Dr. Goldware which revealed a medical history including the

following incidents. Guidry suffered her first back injury while

diving into a pool when she was approximately twelve years old. 

Her next back injury occurred in 1979 when she was involved in a

motor vehicle accident. In September of 1989 she injured her low

back while attempting to remove a bicycle from a rack in her

garage. Finally, in 1990, Guidry pulled her back helping her

husband out of bed. As a result of these incidents, Guidry saw

various doctors, underwent numerous tests and treatments, and

took prescription medication. Additionally, surgery was

discussed during some of Guidry’s doctor visits. All of these

incidents occurred prior to October of 1993, yet they were not

disclosed on Guidry’s disability insurance application. After
5

further investigation by Paul Revere, Guidry’s claim was denied

in April of 1995. 

On August 3, 1995, Guidry filed suit in Louisiana state

court seeking to recover disability benefits, penalties, and

attorney’s fees from Paul Revere. The matter was removed to

federal court based on diversity jurisdiction. Following a

three-day trial, the jury returned special interrogatories

representing a verdict in favor of Paul Revere. Judgment in

accordance with the jury’s verdict was entered into the record on

September 16, 1996. Guidry timely appealed. 

On appeal, Guidry asserts the following: 1) no substantial

evidence existed to support the jury’s findings in favor of Paul

Revere, and 2) the district court erred in changing its ruling on

the last day of trial to allow Paul Revere to assert its defense

of pre-existing condition. 

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

In reviewing for sufficiency of the evidence, the findings

of the jury are given great deference. “Where a question has

been submitted to a jury, the evidence is sufficient to support

the jury’s finding if -- taking all evidence and all reasonable

inferences that can be drawn from that evidence in favor of the

finding -- a reasonable person could have made such a finding.” 
6

Atchison, Topeka & Santa Fe Ry. v. Sherwin-Williams Co., 963 F.2d

746, 749 (5th Cir. 1992). 

B. Discussion

Paul Revere asserts that Guidry’s claim for benefits was

denied because she made a material misrepresentation with the

intent to deceive in applying for her policy and, thus, they have

no liability to her under the policy. Louisiana Revised Statute

§ 22:619 sets forth the burden that Paul Revere 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). The jurisprudence

interpreting this statute places 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 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). 

The jury found from a preponderance of the evidence that

Guidry knowingly made a false statement by failing to disclose
7

information in her application. Guidry admitted at trial that

prior to the date of her application she had a medical history of

incidents involving her back and/or neck, she had seen numerous

doctors, she had an extensive record of treatment, she was

prescribed various medications, and she had periods of disability

from working due to back pain.

The jury found from a preponderance of the evidence that

Guidry made a material misrepresentation on her application with

the intent to deceive Paul Revere. Courts allow the insurer to

satisfy the burden of proving intent to deceive 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. Guidry admitted at

trial that she knew the information provided about her medical

history was important to Paul Revere and would provide the basis

for the policy issued. Guidry also signed the application which

served as an affirmation that she read the statements and answers

provided in the application and that they were complete and

correctly recorded. Additionally, Paul Revere brings forth

impeachment evidence to support the jury’s finding of intent to

deceive. Guidry testified that in 1989 or 1990 Dr. Olivier told

her that she would not be able to work for six to twelve months
8

if she had a lumbar fusion for her back. Guidry was then asked

if upon being told this her immediate thought was “what if I have

to end up having a fusion and I’m out of work for a year? How am

I going to afford to pay my bills?” Guidry denied that this was

her concern. Guidry then read her deposition which reflected

that this had been her reaction. 

The jury found from a preponderance of the evidence that

Guidry’s material misrepresentation affected the risk assumed by

Paul Revere. “The test of materiality involves considering

whether knowledge of the facts would have influenced the insurer

in determining whether to assume the risk or in fixing the

applicable premium.” Wohlman, 980 F.2d at 286. Paul Peter, the

director of individual underwriting for Paul Revere, testified

that based on medical underwriting guidelines, if Paul Revere had

known of Guidry’s back history, it would have issued her

disability insurance policy with a full exclusion rider for the

low back. Such a policy would not have provided benefits to

Guidry had she sustained an injury or an accident to the low

back. Peter described the omitted information regarding Guidry’s

back history as “very important.”

Despite this evidence, Guidry contends that no substantial

evidence existed to support the jury’s finding that she made a

material misrepresentation with the intent to deceive Paul

Revere. In support of this contention, she offers circumstantial

evidence which she believes shows that the jury’s verdict does
9

not reflect the “truth and right of the case.” Guidry asserts

that if she wanted to deceive Paul Revere, she would not have

signed an authorization for the release of medical information,

she would not have disclosed information regarding her other preexisting conditions on her application, and she would not have

informed Paul Revere of her pre-existing low back condition on

the claim form. Also, while Wormser had no specific recollection

of going over questions in the application, Guidry did have

specific recollections of telling Wormser about her prior back

history. 

“Even though we might have reached a different conclusion if

we had been the trier of fact, we are not free to reweigh the

evidence or to re-evaluate credibility of witnesses.” Rideau v.

Parkem Indus. Servs., Inc., 917 F.2d 892, 897 (5th Cir. 1990).

Viewing the evidence and all reasonable inferences in the light

most favorable to the jury’s verdict, we find that the jury had

sufficient evidence from which to conclude that Guidry materially

misrepresented her true medical condition with the intent to

deceive Paul Revere. 

Because we agree with the district court that Paul Revere

bore the requisite burden of proof under Louisiana Revised

Statute § 22:619, we also conclude that the jury had a sufficient

evidentiary basis for finding that Paul Revere had just and

reasonable grounds for denying Guidry’s claim for disability

benefits. Further, because the finding of material
 

1The jury instructions regarding the pre-existing condition

defense stated:

[t]he burden of proof is on the insurer to prove, by a

preponderance of the evidence, that plaintiff’s

disability resulted from an undisclosed pre-existing

condition as defined in the policy. Thus, it is Paul

Revere’s burden to prove the pre-existing condition was

not disclosed by plaintiff to defendant and to prove

the plaintiff’s disability resulted from a physical

10

misrepresentation with the intent to deceive bars Guidry’s

recovery under the Paul Revere disability policy, we need not

address Guidry’s contention that there was no evidence to support

a second jury finding barring recovery, that is, that Guidry’s

disability was caused by a pre-existing condition.

III. DISTRICT COURT’S CHANGED RULING

Guidry asserts that the district court committed reversible

error in changing its ruling on the last day of trial to allow

Paul Revere to assert the affirmative defense of pre-existing

condition. In pre-trial conference, the district court judge

decided that Paul Revere could not assert the affirmative defense

of pre-existing condition. On the morning of the final day of

trial, however, the district court judge determined that there

would be an interrogatory and jury instructions on the preexisting condition defense. Guidry believes that in order to

assert this defense, Paul Revere must meet the requirements of

Louisiana Revised Statute § 22:619. The jury instructions,

however, did not require that Paul Revere meet the burden set

forth by this statute.1 Guidry asserts that the district court
condition for which, prior to the date of issue of the

policy, symptoms existed that would have caused an

ordinarily prudent person to seek diagnosis, care, or

treatment or for which medical advice or treatment was

recommended by or received from a physician. 

11

not only erred in its interpretation of the applicable law for

the pre-existing condition defense, but also violated the law of

the case doctrine in changing its ruling on the last day of trial

thereby preventing Guidry from addressing all the issues

presented at the trial in opening statements and the case in

chief. Guidry further asserts that this must have confused the

jury and caused Guidry’s counsel to lose credibility. 

The law of the case doctrine states that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages of the same case. 

Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1423 (5th Cir.

1995). This doctrine is a discretionary rule of practice which

does not limit the power of the court to revisit a legal issue. 

Id. at 1424. 

While the jury did find that Guidry’s disability was caused

by a pre-existing condition as defined by the policy, they also

found the elements necessary to establish the defense of material

misrepresentation with the intent to deceive. These elements

fulfill the requirements of Louisiana Revised Statute § 22:619,

which is what Guidry urges is necessary to uphold a pre-existing

condition defense.
 

2Rule 61 provides:

No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order

or in anything done or omitted by the court or by any

of the parties is ground for granting a new trial or

for setting aside a verdict or for vacating, modifying,

or otherwise disturbing a judgment or order, unless

refusal to take such action appears to the court

inconsistent with substantial justice. The court at

every stage of the proceeding must disregard any error

of defect in the proceeding which does not affect the

substantial rights of the parties.

12

Even if the jury instructions were erroneous, we will not

reverse if we determine that the challenged instruction could not

have affected the outcome of the case. FDIC v. Mijalis, 15 F.3d

1314, 1318 (5th Cir. 1994). The jury’s finding relating to the

pre-existing condition defense is irrelevant in light of the

jury’s answers to the previous interrogatories establishing

material misrepresentation with the intent to deceive thus

relieving Paul Revere of liability for Guidry’s claim for

disability benefits. 

Assuming without deciding that the district court committed

error in allowing the pre-existing condition defense, it was

harmless error within the meaning of FED. R. CIV. P. 61.2 Nothing

in the record indicates jury confusion or the loss of credibility

of Guidry’s counsel as a result of the district court’s decision

to allow the additional defense on the third day of trial. The

district court’s decision to allow the defense of pre-existing
13

condition did not affect the outcome of the case and was

therefore harmless. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.