Opinion
Case No. 1:19-cv-713
2023-03-31
Karen FROHN, individually and on behalf of all others similarly situated, Plaintiff, v. GLOBE LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.
Catharin R. Taylor, Clements Taylor Butkovich & Cohen, Cincinnati, OH, Jeffrey Scott Goldenberg, Todd B. Naylor, Goldenberg Schneider, LPA, Cincinnati, OH, for Plaintiff. Jeffrey Alan Lipps, Michael N. Beekhuizen, Carpenter Lipps & Leland LLP, Columbus, OH, David W. Sobelman, Glennon P. Fogarty, Husch Blackwell LLP, Saint Louis, MO, for Defendant.
Catharin R. Taylor, Clements Taylor Butkovich & Cohen, Cincinnati, OH, Jeffrey Scott Goldenberg, Todd B. Naylor, Goldenberg Schneider, LPA, Cincinnati, OH, for Plaintiff. Jeffrey Alan Lipps, Michael N. Beekhuizen, Carpenter Lipps & Leland LLP, Columbus, OH, David W. Sobelman, Glennon P. Fogarty, Husch Blackwell LLP, Saint Louis, MO, for Defendant. OPINION AND ORDER DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE
Greg Frohn drank too much. In the years before his death, he reported more than once to his physicians that he was drinking 168 alcoholic beverages a week (or 24 a day). He also suffered from stiff-man syndrome, a progressive neurologic disease that slowly impaired his mobility and left him unable to perform simple tasks. As his health deteriorated, Karen Frohn, his wife (and Plaintiff here), did her best to care for him, accompanying him to all his doctor visits. Sadly, despite best efforts, Frohn passed away in September 2018.
Throughout this Opinion, the Court refers to Greg Frohn as Frohn and Karen Frohn as Plaintiff.
About nine months before Frohn's death, Plaintiff applied for a life insurance policy on him from Defendant Globe Life and Accident Insurance Company ("Globe Life"). The application included questions about the insured's health. Plaintiff did not declare Frohn's drinking, nor did she declare many of his other ailments. Globe Life issued the policy.
After Frohn's death, Plaintiff submitted a claim. That claim occurred within the policy's two-year contestability period. So, before agreeing to pay, Globe Life asked Plaintiff to sign a release permitting the company to look into Frohn's health. Plaintiff signed. But when Globe Life learned of Frohn's drinking and various ailments, it returned her premiums and denied her claim. Plaintiff sued, complaining that Globe Life violated its contract by requiring her to disclose Frohn's medical information. She further claims that Globe Life wrongly required similar information from other claimants and asserts her claims on behalf of a putative class.
After years of litigation and discovery, Globe Life has moved for summary judgment. Globe Life argues it need not pay because Plaintiff fraudulently omitted Frohn's many health problems from her application. Plaintiff disagrees, arguing that she honestly and correctly answered the questions to the best of her knowledge, and in any event, Globe Life had no right to demand Frohn's medical records.
For the reasons discussed, the Court finds no genuine issue of material fact that Plaintiff knowingly and willfully failed to disclose Frohn's material health information to Globe Life. Moreover, whether Globe Life was entitled to the medical records, Plaintiff voluntarily provided them and cannot revisit that decision now. Accordingly, the Court GRANTS Globe Life's Motion for Summary Judgment (Doc. 67) and DISMISSES Plaintiff's Complaint (Doc. 1) WITH PREJUDICE.
BACKGROUND
The facts are voluminous. Frohn's medical history is extensive and covers many years. And Plaintiff's knowledge of her husband's various medical conditions is central to the present dispute. Accordingly, the Court explains the relevant facts in detail.
A. Greg Frohn Suffers From Multiple Health Challenges.
Frohn and Plaintiff married in 2002. (Frohn Dep., Doc. 50, #847). For as long as Plaintiff knew him, Frohn never had a driver's license, as he had received multiple DUI convictions before they met. (Id. at #847-53). Instead, Plaintiff drove Frohn throughout their entire relationship. (Id. at #846). Particularly relevant here, Plaintiff drove and accompanied Frohn to "virtually every one" of his medical appointments. (Id.). She did so because she "wanted to know what was going on with [her] husband, and he felt more comfortable with [her] there." (Id.). At these appointments, Plaintiff and her husband listened carefully to the doctor's diagnoses, medical advice, and treatment plans. (Id. at #984).
Frohn drank a lot of alcohol. Sometimes, he consumed 84 alcoholic drinks (e.g., beers or shots) a week—12 a day. (Id. at #864). Other times, he reported to physicians he had 168 drinks a week—24 a day. (Budke Dep., Doc. 51, #1432, 1482; Smith Dep., Doc. 52, #1790-91, 1806-07, 1817). At the lowest report, he reduced his drinking to 42 drinks a week—6 a day. (Doc. 51, #1497). Clearly, Frohn consistently drank in large quantities.
Starting around 2013, Frohn began to suffer from mysterious and unexplained pain in his neck and back. (Doc. 50, #844-45). He increasingly lost mobility, making everyday tasks more difficult. (Id. at #896-97). In June 2016, Frohn lost his job as a result. (Id. at #881). By that point, he could no longer raise his hands above his head, put on socks, easily get out of bed, or walk without holding onto the walls around him. (Id. at #896-97). As described below, a doctor ultimately concluded these symptoms were the result of a progressive neurological disease called stiff-man syndrome.
Frohn saw many doctors, but two are important here—Dr. Kevin Budke and Dr. Christine Smith, both with the Tri-Health healthcare system in Cincinnati. Budke attended Frohn as his primary care physician for years and ultimately completed Frohn's Certificate of Death. (Doc. 51, #1369). As Frohn's neck and back pain progressed, Budke referred him to the Tri-Health's Physical Medicine Rehab department to work with Smith. (Id. at #1441-42, 1455).
Both doctors attended Frohn for a variety of ailments. First, both Budke and Smith knew of Frohn's alcohol use and repeatedly encouraged him to reduce his intake or stop drinking entirely. (Doc. 51, #1482; Doc. 52, #1901). Smith discussed weaning Frohn off alcohol to safely reduce his consumption, and she offered to refer him to a formal treatment program. (Doc. 52, #1840). The Frohns declined, saying they could "do it" (presumably weaning) "on their own." (Id. at #1840-41). While the doctors encouraged Frohn to stop drinking, though, it appears neither ever formally diagnosed him with alcohol abuse. That said, a different doctor (Dr. John Schwegmann) did diagnose Frohn with alcoholism on May 18, 2018. (Doc. 51-26, #1739). And seven years prior, in April 2011, another unknown doctor diagnosed him with "alcohol abuse, continuous." (Doc. 52-8, #2043). Relevant here, though, no evidence suggests any medical professional formally diagnosed Frohn with alcohol abuse or alcoholism between April 2011 and May 2018. Further, no evidence suggests Frohn ever entered formal or informal alcohol treatment while married to Plaintiff.
Globe Life says that Frohn entered treatment for alcohol abuse at the "Crossroads treatment center" in June of 1998. (Doc. 67, #4110). However, this occurred before Frohn married Plaintiff, and Globe Life provides no evidence she knew of his treatment.
Next, Budke repeatedly diagnosed Frohn with abnormal liver function, including in 2015, 2016, and 2017. (Doc. 51, #1436, 1468, 1471). Given his alcohol consumption, some liver issues may have been expected. And his blood work bore that out. For example, on January 17, 2017, Frohn's blood work reported an AST level of 214 and an ALT level of 101, both relating to the liver's function; a healthy range is 10-40 for AST and 10-60 for ALT. (Id. at #1472). Following further testing a couple weeks later, Plaintiff called Budke's office to report the new numbers and to schedule another appointment for Frohn. (Id. at #1473).
This was not the only time Plaintiff involved herself in discussions relating to Frohn's liver function. In June 2014, Plaintiff called Budke's office "asking for elaboration on platelet and liver function test results." (Doc. 50-9, #1214). And in July 2015, Budke's records indicate that his staff "spoke to [Plaintiff] and gave [liver function results]" and that she "verbalized understanding of results." (Doc. 50-10, #1216-17). When asked about these communications in her deposition, Plaintiff denied remembering any discussion about Frohn's liver, let alone any tests on it. (Doc. 50, #1001-03, 1019). But she did not deny the calls or discussions occurred. (See id. at #1001-03, 1005-07). In any event, Budke routinely monitored Frohn's AST and ALT levels and repeatedly encouraged him to reduce his alcohol intake. (Doc. 51, #1389, 1593).
On February 15, 2017, Smith recorded a new diagnosis: stiff-man syndrome. (Doc. 52, #1838). Smith described stiff-man syndrome as "a rare neurologic condition that causes progressive stiffness and debility." (Doc. 50-4, #1203). In her view, stiff-man syndrome explained Frohn's mysterious neck and back pain. (Doc. 52, #1852). Before the diagnosis, Frohn took opiates to manage his pain. (Doc. 50, #1076). Following the diagnosis, Smith prescribed him Valium to relax his muscles and relieve his pain, but she conditioned the medication on him reducing his drinking to six drinks a day. (Doc. 52, #1838). Although the record is not entirely clear, it appears Frohn did reduce his drinking and did briefly take Valium. (Doc. 51, #1497; Doc. 52, #1865-66). However, he found it only made him sleepy, so he stopped use. (Doc. 51, #1497; Doc. 52, #1865-66). Once more, Plaintiff denies remembering this diagnosis, instead believing no doctor had ever been able to put a name on his condition. (Doc. 50, #1076).
Perhaps confirming Frohn did ultimately take Valium, Budke reported that Frohn tested positive for an unknown sedative, and Budke acknowledged that Valium is a sedative. (Doc. 51, #1486).
Frohn also suffered from other medical conditions. He suffered depression, which doctors first diagnosed in 2009. (Doc. 51, #1427). Frohn had long taken medication to treat it, including Tofranil in June of 2014 (id. at #1429) and Cymbalta in June of 2016 (Doc. 50, #840). And here, Plaintiff testified she does recall Frohn taking Cymbalta to treat his depression (along with his pain). (Id.). Beyond that, doctors also diagnosed Frohn with thrombocytopenia (Doc. 51, #1534), anemia (id. at #1537), and hypertension (id. at #1468). (For reasons discussed below, the Court does not find these last three conditions relevant to the Court's holding.)
As noted, in June 2017, Frohn lost his job "due to [his] inability to report to work or get through the workday due to pain." (Doc. 50-14, #1225). At a follow-up visit to Budke, Budke's records indicate that Plaintiff said Frohn was "depressed about the job loss." (Id.). Although the Court does not have the application itself, Frohn apparently applied to receive social security disability benefits, which were denied. The Court knows this because Plaintiff testified she assisted Frohn in appealing that denial in May 2017. (Doc. 50, #885). And the Frohns engaged attorney Catharin Taylor (also an attorney in the instant matter) to assist in the appeal. (Doc. 50, #883).
Plaintiff produced a handwritten draft of the appeal during discovery. Curiously, she admits that almost the entire document is written in her handwriting. (Id. at #895). But she disputes writing one page in that application, and indeed she denies having ever seen that page before. (Id. at #889-95). Under "Remarks," someone wrote:
Greg Frohn has been diagnosed with a neurological disorder which is not being treated because he has no health insurance and cannot afford treatment. We are requesting a Consultative Medical Examination. The opinion of Christine Smith MD wasn't given any weight in the initial determination for some unknown and unexplained reason. Greg is also very depressed as the result of his debilitating disease. Please schedule a psychological consultative exam as well.(Doc. 50-3, #1200). While the Court is not a handwriting expert, the handwriting on this page appears to differ from the others. (See generally Doc. 50-3). Also, the other pages that Plaintiff admits she wrote use the first person "I" in referring to Frohn, while the disputed page refers to him in the third person. (See generally id.). And although Plaintiff recalls Catharin Taylor helped prepared the appeal, she cannot say for certain whether Taylor wrote this page. (Doc. 50, #883, 889-90). In any event, Plaintiff provided Taylor all the medical documents and information Taylor relied on to assist with the appeal. (Id. at #884). The social security appeal was successful. (Id. at #883).
B. Karen Frohn Applies For And Receives A Life Insurance Policy From Globe Life On Greg Frohn, And Globe Life Refuses To Pay After Frohn Dies.
Enter Globe Life. Plaintiff prepared and submitted applications for life insurance policies on Frohn's life from Globe Life on three occasions: June 15, 2011; February 23, 2015; and January 10, 2018. (Frohn Dep., Doc. 50, #900-02, 951-52, 1071). In no written application did Plaintiff disclose that Frohn had suffered, been diagnosed with, or treated for any of the ailments so far discussed. (Doc. 53-2, #2294; Doc. 53-10, #10, #2391; Doc. 53-13, #2404). That said, the Frohns disclosed in the 2011 application that he took Xanax for anxiety. (Danner Dep., Doc. 73, #4988-89). For purposes of this Opinion, though, only Plaintiff's January 2018 application is at issue.
As with many life insurance policy applications, the Globe Life application included questions about the potential insured's health. In particular, the January 10, 2018, application contained the following interrogatories:
2. In the past 3 years, has the Proposed Insured been diagnosed or treated by a member of the medical profession for:
(a) Cancer, coronary artery disease, or any disease or disorder of the heart, brain, or liver?
(b) Chronic kidney disease or kidney failure, muscular disease, mental or nervous disorder, chronic obstructive lung disease, drug or alcohol abuse, or hospitalized for diabetes?
(Id.). Plaintiff checked "no" to all. Following Globe Life's typical business practices, a Globe Life underwriting representative then contacted Plaintiff to discuss her application in more detail prior before issuing the policy. (Doc. 50, #1083-95). On that call, Plaintiff reaffirmed a "no" answer to questions 2(a) and 2(b). (Doc. 67-1, #4189). But also on the call, Plaintiff informed Globe Life, for the first time, that Frohn suffered neck and back pain, had applied for social security disability benefits, and that he took medication to manage his pain. (Id.).
3. Does the Proposed Insured have any chronic illness or condition which requires periodic medical care or may require future surgery?
As a result, the underwriter changed the answer to question 3 to "yes" and then issued Frohn a "Sub-Standard Class A" life insurance policy. (Id. at #4134-35, 4190-93). Globe Life returned the application and policy materials to the Frohns, which included the altered "yes" answer to question 3. (Doc. 53-14, #2420). The policy named Plaintiff as beneficiary (id.), and it took effect February 21, 2018 (id. at #2412). Under the policy, Globe Life agreed, in relevant part, to "pay the proceeds of this policy to the Beneficiary when We receive due proof that the insured's death occurred while this policy was in force." (Doc. 53-14, #2412). Globe Life's policy does not require a beneficiary to submit the deceased's medical records to process a claim.
Sadly, Frohn died shortly thereafter. On September 26, 2018, Frohn passed away at 54 years old. (Doc. 50-19, #1246). Budke prepared Frohn's Certificate of Death, recording the immediate cause as "bacterial endocarditis" and identifying the significant conditions contributing to death as "ascending cholangitis" and "alcoholism." (Doc. 51-1, #1657; Doc. 51, #1370-72). Plaintiff notified Globe Life of his passing on October 1, 2018, and submitted a claim on October 16. (Doc. 50, #1036, 1050-51).
The record says little about Frohn's health following the policy's issuance and his death. But the record does reveal that on May 18, 2018, a doctor diagnosed Frohn with "Alcoholism." (Doc. 51, #1584-85).
Globe Life never paid. According to Globe Life, because Frohn's death occurred "within the 2-year contestable period," Globe Life sent Plaintiff a release to sign permitting the company to obtain Frohn's medical information from providers. (Doc. 68-1, #4857). After Globe Life told Plaintiff that her claim could not be processed until she signed, she executed the release, allowing Globe Life to then receive Frohn's medical information. (Doc. 50, #1108; Doc. 50-20, #1270).
Globe Life makes much of the fact that Plaintiff seemingly requested Tri-Health send Globe Life "49 pages of medical records" on September 27, days before reporting his death to Globe Life on October 1. (Doc. 67, #4057). According to Globe Life, this submission of a small snippet of medical records reveals Plaintiff's fraudulent intent to color Globe Life's review of her claim.
While Globe Life evaluated Frohn's medical history, Plaintiff made multiple calls to Globe Life in which she represented confidence it would approve her claim. For example, early in the process she called Globe Life, saying "I have no doubt that [my claim] will be approved [be]cause there was nothing to contest." (Doc. 68-1, #4862). Plaintiff called again a few days later, asking what was taking so long: "So how long do we give that? I mean, [the claim] was received 12-3. I know he didn't have much medical history. So it's like I don't know what's taking so long to review." (Id. at #4870). Plaintiff then called a third time, again asking what was taking Globe Life so long because her husband "wasn't a sick man." (Id. at #4876).
Once Globe Life completed its review, though, Globe Life refused to satisfy the claim. (Doc. 67-1, #4142). Globe Life cited Plaintiff's inaccurate responses in the policy application. According to Globe Life, the medical records "indicate[d] prior medical conditions which include but may not be limited to a history of alcohol abuse with abnormal liver function tests, hypertension, neurological stiff person syndrome." (Id.). Globe Life further asserted that: "Based on the medical history, Question(s) 2(b) and 3 were not answered correctly." (Id.). (As discussed later, Globe Life now also argues she incorrectly answered question 2(a).) Globe Life further stated that "[i]f [it] had been aware of Gregory P. Frohn's medical history at the time of application, [Globe Life] would have been unable to approve him for coverage under this policy." (Id.). Finally, Globe Life sent a check to Plaintiff reimbursing her for all premiums paid. (Id.).
Plaintiff claims this denial surprised her. After all, Globe Life's policy terms explicitly required only that she provide a notice of death while the policy was in effect. It said nothing about requiring further medical information. (Doc. 53-14, #2412). (Although the policy did include a two-year contestability period. (Id. at #2415).) To Plaintiff, Globe Life violated its policy contract by requiring medical records and then failing to pay based on the contents of those documents. And she had a feeling she was not the only one similarly wronged.
C. Karen Frohn Sues Globe Life For Breaching The Policy Contract.
On August 28, 2019, Plaintiff sued Globe Life individually and on behalf of all others similarly situated. (Doc. 1). She pressed two claims: Breach of Contract and Breach of Duty of Good Faith and Fair Dealing (e.g., Bad Faith). (Id. at #11-13). Among her demands, she requests class certification, actual damages in excess of $5,000,000, punitive damages, and costs and attorney's fees. (Id. at #13-14).
Globe Life's answer asserted an affirmative defense under Ohio Revised Code § 3911.06. (Doc. 56, #2460). Under this defense, Globe Life argued Plaintiff's willfully false answers in the policy application absolved the company of any obligation to pay on the policy. (Id.). To support its defense, Globe Life sought to further explore Frohn's medical history, including by deposing doctors Budke and Smith. Plaintiff asked the Court for a protective order preventing such discovery based on physician-patient privilege, which the Court largely denied. (See Docs. 33, 41).
Following voluminous discovery, Globe Life moved for summary judgment based entirely on § 3911.06. (Doc. 67). Globe Life argued that Plaintiff (1) knew of her husband's multiple conditions, (2) fraudulently failed to disclose them in the policy application, that (3) but-for her false answers Globe Life would not have issued Frohn the policy, and that (4) Globe Life had no knowledge of Frohn's relevant medical conditions. (See id.). Specifically, Globe Life complained Plaintiff did not disclose Frohn's alcohol abuse, liver function abnormality, thrombocytopenia, anemia, hypertension, stiff-man syndrome, and depression. (Id. at #4071). Based on this defense, Globe Life demanded summary judgment on both of Plaintiff's claims. (See id.).
Plaintiff responded on multiple grounds. (Doc. 74). First, she argued Globe Life could not present Frohn's medical records to the jury because neither he nor she had expressly waived his physician-patient privilege. (Id. at #5494-504). Thus, the Court could not consider these documents for purposes of summary judgment. Second, Plaintiff contended § 3911.06 did not bar her claims because she correctly answered each question, or alternatively, she did not intentionally lie even if her answers were technically false. (Id. at #5504-30). She separately argued Globe Life still would have issued Frohn a policy even if she had "correctly" answered each question, and that Globe Life knew of at least one of Frohn's conditions from prior applications. (Id. at #5530-38). Globe Life replied. (Doc. 83). The matter is now ripe.
STANDARD OF REVIEW
Globe Life seeks summary judgment. "The 'party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions' of the record which demonstrate 'the absence of a genuine issue of material fact.' " See, e.g., Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
But the non-moving party cannot defeat summary judgment merely by pointing to any factual dispute. Indeed, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Int'l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In other words, the dispute must be "genuine" (i.e., supported by evidence) and go to a "material fact" (i.e., a fact that could matter to the outcome).
In sum, after reviewing the cited evidence, the Court must determine whether there is some "sufficient disagreement" that necessitates submitting the matter to a jury. See Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505). In making that determination, though, the Court must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) ("In arriving at a resolution, the court must afford all reasonable inferences, and construe the evidence in the light most favorable to the nonmoving party.").
LAW AND ANALYSIS
To resolve Globe Life's Motion for Summary Judgment, the Court must make two determinations. First, may the Court consider Frohn's health records obtained based on Plaintiff's release? And second, in light of the evidence the Court can properly consider, is there a genuine dispute of material fact concerning whether Plaintiff fraudulently answered the interrogatories? Ultimately, the Court finds it may consider Frohn's medical information based on Plaintiff's waiver of his physician-patient confidentially. And based on that information, the Court concludes that Globe Life is entitled to summary judgment on both claims because of Plaintiff's false answers.
Before proceeding, a brief word about evidence. Ohio Revised Code § 3911.04 requires "[e]very life insurance company" to "return with, and as part of any policy issued by it, to any person taking such policy, a complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy." Failure to return a complete copy or document estops the insurer from attacking the validity of the contract by denying the truth of the omitted contents. See Pannunzio v. Monumental Life Ins. Co., 168 Ohio St. 95, 151 N.E.2d 545, 549, 552 (1958); see also Campbell v. Monumental Life Ins. Co., 34 N.E.2d 268, 272 (Ohio Ct. App. 1940) ("The purpose of [this statute] . . . is to bring home to the insured all the questions put to her and answers made by her in her application and to apprise her of the fact that all of these become a part of the contract by which she must be bound.").
No one disputes that Globe Life did not "return" the handwritten application Plaintiff completed nor the transcript of the underwriting call. (Doc. 73, #4994-95). Accordingly, Plaintiff's answers provided in these documents cannot be used to challenge the validity of the policy. Globe Life only returned the post-call revised application, which marked "no" to questions 2(a) and 2(b) and "yes" to question 3. (Doc. 53-14, #2420). Accordingly, the Court will only focus on the answers provided in that document.
The practical effect is the Court does not evaluate Plaintiff's "no" response to question 3 found in her handwritten application.
A. Plaintiff Executed A Valid Physician-Patient Privilege Waiver Such That The Court May Consider Frohn's Medical Information.
Ohio privilege law applies because Plaintiff presents state-law based claims. Jewell v. Holzer Hosp. Found., Inc., 899 F.2d 1507, 1513 (6th Cir. 1990). Under Ohio law, a physician may not testify "concerning a communication made to the physician . . . by a patient in that relation" or the "advice of a physician . . . given to a patient." Ohio Rev. Code § 2317.02(B)(1). In relevant part, this privilege can be waived if the spouse of the deceased patient gives express consent. Id. § 2317.02(B)(2)(a)(ii). "A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered." Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 909 N.E.2d 1237, 1241 (2009); Nationwide Mut. Ins. Co. v. Jackson, 10 Ohio App.2d 137, 226 N.E.2d 760, 762 (1967) ("A patient may, of course, without violating public policy voluntarily waive this privilege.").
As the Court previously recognized, Plaintiff signed a waiver releasing Frohn's medical information to Globe Life on October 11, 2018. (Doc. 41, #625-26; Doc. 30-1, #467). Plaintiff raises only one meaningful challenge to this waiver: She argues (as she did previously) that she did not execute this waiver voluntarily, making it without effect. (See Doc. 41, #627; Doc. 74, #5499-500). Specifically, Plaintiff contends Globe Life forced her to sign the waiver involuntarily by threatening to withhold the life insurance payment. (Frohn Dep., Doc. 50, #1108-09). In her words: "I felt that it was, sign this or . . . we don't go on with your claim." (Id. at #1108). Yet when asked if she felt coerced to sign, she said no. (Id.).
True, Plaintiff also argues the waiver only applied to uses under federal law and did not waive the state law physician-patient privilege. (Doc. 74, #5502). The waiver does indeed state "I understand that any information that is disclosed pursuant to this authorization may be re-disclosed and no longer covered by federal rules governing privacy and confidentiality of health information." (Doc. 30-1, #467). But viewing the document as a whole, this "I understand" language does nothing to limit how Globe Life may use the medical information. Elsewhere, the release warns "[t]his protected health information is to be disclosed under this Authorization in order to . . . conduct other legally permissible activities that relate to any coverage I have or have applied for." (Id.). Asserting a § 3911.06 defense is clearly a "legally permissible activity" under Ohio law.
The Court is unaware of any Ohio caselaw clearly defining what makes a waiver "voluntary" in this context. As Plaintiff points out, the Ohio Supreme Court describes a valid waiver as requiring an "opportunity to choose between either relinquishing or enforcing of the right." Chubb v. Ohio Bur. of Workers' Comp., 81 Ohio St.3d 275, 690 N.E.2d 1267, 1269 (1998). But this does little enlighten exactly what showing is needed to make a waiver voluntary or involuntary.
Whatever the exact standard, though, the Court finds Plaintiff executed the waiver voluntarily. To start, the Court sees no evidence she executed the waiver under duress or coercion. Instead, Plaintiff argues that she disliked the choices presented to her and claims that Globe Life had no legal right to make her choose. Maybe so. But make no mistake, she had another choice to get her claim paid—filing suit to enforce her contractual rights. Indeed, she has now sued on basically the same theory she could have advanced then. Rather than pursue that option, though, she chose to waive. Perhaps she didn't like her alternatives. But having to choose between disfavored options does not alone make the choice involuntary.
Plaintiff also argues O'Donnell v. Fin. Am. Life Ins. Co., 328 F.R.D. 174 (S.D. Ohio 2017) stands for the proposition that Globe Life cannot use Frohn's medical information in supporting its § 3911.06 defense. (Doc. 74, #5488). O'Donnell is inapposite though. There, the court expressly found § 3911.06 did not apply because the insurer did not submit interrogatories to the applicant. O'Donnell, 328 F.R.D. at 178. Here, no party seriously disputes that Plaintiff responded to interrogatories when completing the application.
In short, whether the policy permitted Globe Life to demand waiver, Plaintiff executed the waiver voluntarily. As this is Plaintiff's only meaningful attack on the waiver and the Court knows of no other circumstances that would otherwise invalidate it, the Court finds the waiver enforceable. Frohn's medical information and documents are admissible evidence.
B. Globe Life Has Satisfied Ohio Revised Code § 3911.06.
Under Ohio law, false answers made in response to interrogatories (i.e., in response to specific questions) in life insurance applications may permit the insurer to avoid paying on the policy. Ohio Rev. Code § 3911.06. As the Ohio Supreme Court has explained:
an insurer can satisfy the requirements of Section 3911.06, so as to establish an answer to an interrogatory by an applicant as a bar to recovery upon a policy, by clearly proving thatJenkins v. Metro. Life Ins. Co., 171 Ohio St. 557, 173 N.E.2d 122, 125 (1961). The proof must be made by clear and convincing evidence. Spencer v. Minn. Life. Ins. Co., 493 F. Supp. 2d 1035, 1037-38 (S.D. Ohio 2007).
(1) the applicant willfully gave a false answer
(2) such answer was made fraudulently
(3) but for such answer the policy would not have been issued and
(4) neither the insurer nor its agent had any knowledge of the falsity of such answer.
That is not the whole story though. If the insurer proves the applicant provided an objectively false answer to an interrogatory, that triggers a rebuttable presumption the applicant held a subjectively fraudulent intention—i.e., answer was "willfully false and fraudulently made." Spencer, 493 F. Supp. 2d at 1038; Midland Nat'l Life Ins. Co. v. Gavin, No. 3:13-cv-814, 2014 WL 7473771, at *4 (N.D. Ohio Dec. 31, 2014) ("A false answer creates a presumption that the answer was made willfully . . . . False answers given by an applicant for insurance create a presumption beneficial to the insurance company."); Krawczyszyn v. Columbian Life Ins. Co., No. 1:21-cv-85, 2022 WL 1689245, at *5-6 (N.D. Ohio May 26, 2022) (shifting the burden after finding interrogatory answers objectively false); see also Lyttle v. Pac. Mut. Life Ins. Co. of Cal., 72 F.2d 140, 142 (6th Cir. 1934) (interpreting a predecessor statute).
True, some courts use language that could be interpreted to require an insurer to first prove an applicant knew the answer was false before triggering any presumption of willfulness: "[T]he insurer's burden of proof extends only to whether the [applicant] knowingly provided a false answer." Spencer, 493 F. Supp. 2d at 1038 (emphasis added); Blakely v. Sec. Dollar Bank, No. 2000-T-0105, 2001 WL 848581, at *3 (Ohio Ct. App. July 27, 2001) (using the phrase "knowingly provided a false answer"); Ramsey v. Penn Mut. Life Ins. Co., 787 F.3d 813, 821 (6th Cir. 2015) (same). But the Court believes this use of "knowingly" refers to whether the applicant knew they were providing an answer to an interrogatory, not whether they knew the answer was false. Indeed, this interpretation makes more sense than requiring an insurer to prove knowledge of falsity to trigger the presumption. After all, the applicant cannot both consciously "know" an answer is false and simultaneously make an "honest mistake." Yet all agree Ohio law permits the applicant to rebut the presumption of willfulness with evidence of an "honest mistake." It would seem anomalous to require the insurer to first prove by clear and convincing evidence the applicant actually knew an answer was false before asking the applicant to show evidence of an honest mistake.
The applicant rebuts the presumption of willfulness by either (1) putting forward evidence that the undisclosed ailment was "not known by the [applicant] to be for any serious ailment or condition" or (2) putting forward evidence that "the false answer was an honest mistake." Gavin, 2014 WL 7473771, at *4 (quoting Spencer, 493 F. Supp. 2d at 1038). To prevail, though, the applicant needs affirmative evidence of his or her innocent subjective belief. See id. Mere hypotheticals or speculation won't do.
Recapping all that, Globe Life must first show Plaintiff objectively answered one or more interrogatories falsely. In determining whether Globe Life made this showing, the Court interprets the interrogatories and examines the medical documents and testimony, drawing all reasonable inferences in Plaintiff's favor. Second, for each objectively false answer, the Court looks to see whether Plaintiff produces sufficient evidence to create a genuine issue of material fact that she made an honest mistake or did not believe the ailment serious. Third, the Court asks whether those combined subjectively false answers meet § 3911.06's final two elements.
1. Plaintiff answered questions in her application in an objectively false manner.
As noted, Plaintiff responded "no" to the following relevant interrogatories:
Plaintiff also answered "no" to question 3 on her written application. (Doc. 53-13, #2404). As discussed though, Ohio Revised Code § 3911.04 prevents the Court from evaluating that document because Globe Life did not return it to Plaintiff.
2. In the past 3 years, has [Frohn] been diagnosed or treated by a member of the medical profession for:
(Doc. 53-14, #2420). Plaintiff signed the application on January 10, 2018, meaning the relevant three-year timeframe dates back to January 10, 2015. (Id.). Therefore, to prove objective falsity, Globe Life must demonstrate medical professionals "diagnosed or treated" Frohn for a listed "disease" or "disorder" between January 10, 2015, and January 10, 2018. In support, Globe Life points to Frohn's alcohol abuse, liver function abnormality, thrombocytopenia, anemia, hypertension, stiff-man syndrome, and depression. (Doc. 67, #4060-66).(a) Cancer, coronary artery disease, or any disease or disorder of the heart, brain, or liver?
(b) Chronic kidney disease or kidney failure, muscular disease, mental or nervous disorder, chronic obstructive lung disease, drug or alcohol abuse, or hospitalized for diabetes?
At the outset, the Court must interpret the application's key terms. Campbell v. Potash Corp. of Saskatchewan, Inc., 238 F.3d 792, 797 (6th Cir. 2001) (noting contract interpretation is a matter of law to be decided by the court). According to Merriam-Webster Dictionary, "diagnosed" means "to recognize (something, such as a disease) by signs and symptoms," "treated" means "to care for or deal with medically or surgically," "disease" means "a condition of the living . . . body or of one of its parts that impairs normal functioning and is typically manifested by distinguishing signs and symptoms," and "disorder" means "an abnormal physical or mental condition."
The Court found the above dictionary definitions by searching Merriam-Webster's website. Merriam-Webster.com, www.merriam-webster.com/dictionary/ (last visited Mar. 20, 2023).
With those definitions in mind, the Court now turns to Frohn's medical ailments that Globe Life believes Plaintiff incorrectly withheld. Start with those that clearly fail. Globe Life has not shown that thrombocytopenia, anemia, or hypertension fall within the listed conditions. Instead, all three are conditions of the blood. Budke describes thrombocytopenia as "low platelet count" in the blood to assist with blood clotting (Budke Dep., Doc. 51, #1446), anemia as "a low red blood cell count" to "carry oxygen around" (id. at #1535), and hypertension as "high blood pressure" (id. at #1354). Although these conditions can have ancillary effects for other organs, including the heart (see id. at #1469), that is not the question the interrogatories posed. Globe Life does not meaningfully argue otherwise. Based on the record evidence, Plaintiff did not misrepresent by omitting these conditions.
Alcohol abuse proves somewhat harder to nail down. Complicating matters, the application nowhere defines "alcohol abuse." Perhaps by using the term "alcohol abuse," Globe Life seeks information about more than just those persons diagnosed with alcoholism. After all, one could conceivably "abuse" alcohol without having "alcoholism." Accordingly, the Court interprets the application to include diagnoses and treatments for excessive drinking in addition to the disease of alcoholism.
Alcoholism is defined as "a chronic, a progressive, potentially fatal disorder marked by excessive and usually compulsive drinking of alcohol leading to psychological and physical dependence or addiction." Alcoholism, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/alcoholism (last visited Mar. 20, 2023).
Begin with "diagnosed." Despite overwhelming evidence Frohn drank too much, the record does not show a medical professional diagnosed Frohn with "alcohol abuse" during the relevant period. From January 2015 to January 2018, no medical document or chart lists "alcohol abuse" or "alcoholism" as a diagnosis. Nor did Budke or Smith ever testify to diagnosing as much. True, a doctor did formally diagnose Frohn with alcoholism on May 18, 2018, but that occurred five months after Plaintiff signed the application. (Doc. 51, #1585). And the only other arguable clinical "diagnosis" for alcohol abuse occurred in 2011, well outside the relevant three-year period. (Doc. 52-9, #2162 (stating "Alcohol abuse, continuous")).
"Treated" is a closer call. Although Budke and Smith did not formally diagnose alcohol abuse, they repeatedly encouraged Frohn to drink less. (Doc. 51, #1432, 1476; Doc. 52, #1840). Indeed, Smith offered to refer Frohn to a treatment program to assist him with safely weaning himself off alcohol. (Doc. 52, #1840). To Smith's recollection, the Frohns declined, saying they could do it on their own. (Id. at #1840-41). Moreover, Smith conditioned prescribing Valium on Frohn reducing to six drinks a day, which he briefly did. (Doc. 52, #1841; Doc. 51, #1497). Globe Life argues Budke's and Smith's attempts to convince Frohn to drink less constitute "treatment," meaning Plaintiff should have reported the ailment in the application. (Doc. 67, #4061-62).
Not necessarily. If anything, it appears the doctors wanted to treat Frohn, but he declined. Indeed, following an explicit referral offer to a formal treatment program, the Frohns said they would do it themselves. (Doc. 52, #1840-41). So to quote the application, Frohn opted to not be "treated by a member of the medical profession." (Doc. 53-13, #2404). Drawing all reasonable inferences in Plaintiff's favor, the record evidence would permit a reasonable jury to conclude she answered this question accurately.
Although the answer's objective falsity does not turn on Plaintiff's subjective belief, it is worth noting she too apparently read the application in this manner, repeatedly stating in her deposition that Frohn never participated in "formal treatment." (Doc. 50, #804, 1043). In her view, Frohn's refusal to enter formal treatment meant the doctors never "treated" him. So even if the Court believed Frohn had in fact been treated for alcohol abuse, a reasonable jury could conclude Plaintiff made an "honest mistake" by not disclosing it.
Depression, abnormal liver function, and stiff-man syndrome are different. These omissions were objectively false. First, depression is a "mental disorder," and during the three relevant years, doctors prescribed Frohn medication, Cymbalta, to treat that disorder. (Doc. 50, #840). Second, abnormal liver function is a "disorder" of the liver, and Budke repeatedly diagnosed this disorder during the relevant period. (Doc. 51, #1436, 1468, 1471). Third, stiff-man syndrome is a neurological disease—e.g., a disease or disorder of the brain. (Doc. 52, #1838, 1858). Smith diagnosed Frohn with stiff-man syndrome in 2017. (Id.). Therefore, briefly setting aside Plaintiff's understanding, the Court finds these three omissions meet the first element of objective falsity.
Plaintiff argues abnormal liver function is not literally a disorder of the liver by using medical definitions and underwriting guidelines. (Doc. 74, #5524-28). But Globe Life's application is written for the layperson to complete, not a medical professional or insurance underwriter. As described, the Court understands "disorder" in layman's terms to refer to "an abnormal physical or mental condition." Under this definition, Frohn clearly suffered a disorder of the liver. Moreover, this argument is curious because it assumes an insurance applicant, like Plaintiff, possesses medical training and understanding when filling out the policy application. However, in the immediately preceding section (id. at #5524), Plaintiff disclaims such knowledge, arguing she does not know whether stiff-man syndrome is a neurological disease or not.
2. Plaintiff has not rebutted the presumption her false answers were willful and fraudulent.
Objective falsity is just the start though. Next, the presumption shifts to Plaintiff to demonstrate through record evidence she either made an honest mistake or did not believe the Frohn suffered a serious condition. Her burden, though, is minimal. After all, Globe Life's overall burden under § 3911.06 is one of clear and convincing evidence. On top of that, at summary judgment Plaintiff is entitled to all reasonable inferences capable of being drawn by a reasonable jury. Nonetheless, Plaintiff still falls short.
Start with liver function abnormality. When asked about Frohn's abnormal liver function in her deposition, Plaintiff repeatedly disclaimed remembering any discussion with physicians about his liver. (Doc. 50, #818, 822-23, 835, 981-82, 1032-33, 1102). But critically, she never testified that she forgot about Frohn's liver issues when filling out his application on January 10, 2018. At most, Plaintiff disclaimed recollection at her deposition on April 1, 2021. (Id. at #744). Denying recollection is not affirmative evidence. See Wysong v. City of Heath, 260 F. App'x 848, 856-57 (6th Cir. 2008); Bass v. White Castle Sys., Inc., No. 1:09-cv-2516, 2014 WL 5516473, at *7 (N.D. Ohio Oct. 31, 2014) ("Plaintiff cannot defeat summary judgment merely by alleging that he cannot recall events and discipline that explain the basis for the actions Defendant took."); Diaz v. Mitchell's Salon & Day Spa, Inc., No. 1:09-cv-882, 2011 WL 379097, at *6 n.9 (S.D. Ohio Feb. 2, 2011) ("[P]laintiff's self-serving inability to 'recall' certain documents or events does not by itself create any 'genuine dispute' as to any material facts.").
Moreover, a reasonable jury would be unable to square this testimony with the other evidence. Even during the deposition, Plaintiff readily remembered her husband went to the "Upper GI and Liver Institute" medical facility. (Id. at #832). And Budke's office records indicate Plaintiff herself discussed Frohn's unusual liver function test results with his office in June 2014 and July 2015. (Doc. 50-9, #1214; Doc. 50-10, #1216-17). Granted, she denied remembering these conversations during her deposition. (Doc. 50, #1001-02, 1005-07). But she did not deny making the calls or having the conversations. (See id. at #1001-03, 1005-07). Viewed through the lens of a reasonable jury, the Court can only conclude that Plaintiff has not rebutted the presumption. See Wysong, 260 F. App'x at 857 (finding the plaintiff failed to create a genuine issue because "he does not deny that he fought with the officers; he only claims that he does not remember what happened").
In her briefing, Plaintiff responds that liver function abnormality is a symptom and not a disease or disorder itself. (Doc. 74, #5525). She claims she may have honestly believed that Globe Life did not expect her to report this condition. But argument is not evidence. Plaintiff provides no testimony or other evidence that she actually thought this while filling out the application.
Turning to depression, here too Plaintiff provides no persuasive evidence justifying her omission. First, she does not deny knowing Frohn had been diagnosed with depression. (Id. at #837). Nor does she deny doctors prescribed him medication to assist with his depression. (Id. at #839-40). Her only rebuttal is her claim that she cannot tell whether to consider depression a mental disorder. When asked in her deposition, Plaintiff said: "I think that's a medical decision that is wavering, so I - I don't know how to answer that." (Id. at #969). Really?
This meager testimony cannot rebut the presumption of willful falsity. First, the Court struggles to believe that any reasonable jury could find that Plaintiff honestly thought her husband's depression—for which he had been diagnosed and prescribed medication for years—did not count as a mental disorder. And when attorneys asked her in the deposition about her "husband's mental condition, whether he was depressed or not," she responded simply "yes." (Id. at #837). Thus, she apparently had no difficulty seeing depression as a "mental condition." In any event, Plaintiff never testified she held this "wavering" uncertainty when completing the application.
Finally, Plaintiff cannot rebut the presumption with respect to stiff-man syndrome. To her credit, here she at least offers evidence to support a finding that she made an honest mistake. When questioned about stiff-man syndrome, Plaintiff testified she never knew her husband suffered a neurological disorder. (Doc. 50, #882, 887-88). Instead, she claims she only knew he suffered neck and back pain, thinking that no doctor had ever successfully diagnosed the cause (id. at #843), including the neurologist they visited (see id. at #888). And although Smith did eventually diagnose Frohn with stiff-man syndrome, Plaintiff accurately notes that many of his symptoms appeared different than those a layman might normally associate with a brain condition. (See id. at #891-92; Doc. 74, #5524).
The problem is that the record doesn't support her argument. First, the May 2017 Social Security appeal is damning. Plaintiff readily admits she helped prepare Frohn's Social Security benefits appeal. (Doc. 50, #885-86). The handwritten copy produced in discovery attests "Greg Frohn has been diagnosed with a neurological disorder." (Doc. 50-3, #1200). True, Plaintiff denies she or her husband wrote that. (Doc. 50, #889-90). But someone did—someone willing to attest Greg Frohn had a neurological disorder. And if that "someone" knew, then Plaintiff, who attended every doctor's appointment and closely followed her husband's diagnoses, surely knew in May 2017 as well. For example, take the safe guess and assume attorney Catharin Taylor wrote this page. Plaintiff admits she gave Taylor any document Taylor relied on to help with the appeal. (Id. at #884). If Taylor wrote that Frohn suffered a neurological disorder, Taylor knew that because Plaintiff gave her the documents to support it, meaning Plaintiff had access to that same information.
Second, even assuming Plaintiff forgot stiff-man syndrome was a neurological disorder, a reasonable jury could not conclude she made an honest mistake in failing to disclose it. If she, as a layperson, mistakenly believed the diagnosis was not neurological in nature, she would otherwise have disclosed the condition under a different requested category. For example, she would have disclosed it as a muscular or nervous condition. After all, as the disease progressed, it manifested by limiting his physical mobility. And (again) by Plaintiff's own admission, she knew Smith prescribed Frohn a "muscle relaxer" medication—Valium—to treat his condition. (Id. at #1094).
Taken together, Plaintiff has not rebutted the presumption that she acted willfully and fraudulently in falsely answering interrogatories in the application.
3. But-for Plaintiff's answers, the policy would not have issued.
As a result of the application and underwriting call, Globe Life issued Frohn a Sub-Standard A Policy. (Doc. 67-1, #4135). Globe Life Underwriter Nicholas Danner declared that the three undisclosed conditions, if revealed, would have resulted in Frohn receiving a different policy or otherwise being rejected outright. (Id. at #4152-53 (depression), 4162-63 (liver), 4172 (stiff-man syndrome)). Summarizing his condition, Danner labeled Frohn "an uninsurable risk," unfit for the policy he received. (Id. at #4156). Based on the evidence, any reasonable jury would agree with this assessment.
Plaintiff responds in two ways, but neither are successful. First, she argues § 3911.06 requires the insurer to demonstrate that, but-for the false answers, no policy would issue, not just a different policy with different terms. (Doc. 74, #5482). In support, she cites Ferrar v. Fed. Kemper Life Assur. Co., 198 F. Supp. 2d 940 (S.D. Ohio 2002), and Owens v. Protective Life Ins. Co., No. 1:07CV3083, 2008 WL 11381915 (N.D. Ohio Nov. 6, 2008). To her credit, these cases do allude that Globe Life's burden is to show it would have "denied the application out of hand." Owens, 2008 WL 11381915, at *9; see also Ferrar, 198 F. Supp. 2d at 949-50 (describing the standard as whether the insurer would have "denied the application"). But these federal district court cases are not binding on the Court. Following careful consideration, the Court respectfully disagrees.
Although it appears the Ohio Supreme Court has yet to issue clear guidance, this Court concludes that the insurer need only demonstrate that this same policy would not have issued. Both Ohio Revised Code § 3911.06 and the pivotal Jenkins case refer to "the" policy being issued, not "a" or "any" policy. In other words, the question is whether this policy would issue containing identical terms, conditions, premiums, and payouts. See Nationwide Ins. Enter. v. Progressive Specialty Ins. Co., No. 01AP-1223, 2002 WL 1338791, at *5 (Ohio Ct. App. June 20, 2002) ("Renaut cannot demonstrate that Progressive would have issued the same policy with the same terms and conditions if it had known of the allegedly fraudulent answer prior to issuing the policy."); Martin v. Atlanta Life Ins. Co., No. 75AP-163, 1975 WL 181648, at *3 (Ohio Ct. App. Aug. 7, 1975) ("[T]he test . . . in Jenkins v. Insurance Co. . . . is whether a reasonably prudent underwriter would have, had the fact misrepresented been communicated at the time of effecting the insurance, rejected the risk or charged an increased premium . . . .") (emphasis added) (quotation omitted).
This makes sense as a matter of contract law. At its core, § 3911.06 is a fraud statute. Normally, fraud in the inducement (similar to Globe Life's defense here) renders a contract voidable by the innocent party. See Kight v. Miller, 94 N.E.3d 60, 70 (Ohio Ct. App. 2017). And to void the agreement, courts do not generally require the party alleging fraud to show that no other contract with different or less favorable terms could have been issued anyway. The Court sees no language, nor detects any hint, the Ohio General Assembly deviated from this common understanding when enacting § 3911.06.
Here, a reasonable jury would conclude Globe Life would not have issued the policy had Plaintiff fully disclosed what she knew or reasonably must have known. Globe Life issued Frohn a Sub-Standard Class A policy based on his perceived risk profile. (Doc. 67-1, #4134-35). Honest answers from Plaintiff would have, at minimum, placed Frohn into a lower policy sub-class (Id. at #4154), and a lower subclass would carry a higher premium. (See id. at #4144).
But assume for the moment that Plaintiff is correct that Globe Life needs to show no policy would have issued. Globe Life still meets its burden. Danner declared that had the insurer known of Frohn's abnormal liver function, that alone would have inevitably resulted in his application being denied outright. (Doc. 67-1, #4162-63). So either way, Plaintiff loses on the facts here.
Plaintiff's other argument likewise goes nowhere. She contends that, even had it received honest answers, Globe Life has not met its clear and convincing burden to show Frohn could not have still received the same Sub-Standard Class A policy. Plaintiff argues that even had she disclosed Frohn's depression, Globe Life's own underwriting guidance would have allowed him to still receive a Sub-Standard Class A policy. (Doc. 74, #5520). In addition, she believes the broad decision-making discretion Globe Life affords underwriters makes it impossible for Globe Life to show its underwriters would have actually denied him. (Id. at #5533).
Plaintiff, again, is long on argument and short on facts. She does little to counter Globe Life's testimony that Frohn's combined conditions made him an uninsurable risk. To be sure, she does show Globe Life may have issued the same policy had she disclosed Frohn's depression. But the Court has found Plaintiff's answers contained three omissions—more than "just" depression. Assuming Plaintiff disclosed all three, Globe Life has produced evidence it would have issued a different policy or, more likely, no policy at all. (Id. at #4152-53, 4162-63, 4172). Assuming the same, Plaintiff has not.
Plaintiff also contends Globe Life must have not considered all her omissions material, because Globe Life's initial claim rejection only cited alcohol abuse, abnormal liver function, hypertension, chronic pain syndrome, and stiff-man syndrome. (Doc. 74, #5531). Nothing in the statute, though, binds Globe Life to the conditions cited in its initial denial. As with most litigation, as facts come to light through discovery, parties are entitled to refine their factual allegations. That occurred here.
4. Globe Life had no knowledge of falsity when issuing Frohn's policy.
The fourth element can be disposed of quickly. The entire crux of Globe Life's Motion and Danner's Declaration is that it did not know of Frohn's various health conditions. (Doc. 67, #4082-83; Doc. 67-1, #4172). Plaintiff offers little to show that Globe Life actually knew of Frohn's alcohol abuse, stiff-man syndrome, or depression. Perhaps the closest she comes is noting that the Frohns did disclose in an earlier application that Frohn took Xanax for anxiety which, according to Plaintiff, can also be prescribed to treat depression. (Doc. 74, #5537). From this, Plaintiff argues Globe Life knew of his depression.
That is quite the leap. Treating one condition (anxiety) is not itself evidence of a second (depression). And even crediting this argument, it produces at most a scintilla of evidence—insufficient to create a genuine issue of material fact Globe Life actually knew Frohn had depression. Finally, Plaintiff doesn't even try to argue Globe Life knew of Frohn's liver or brain problems.
Altogether, the Court finds Globe Life has demonstrated there is not a genuine issue of material fact it is entitled to a § 3911.06 defense. This bars Plaintiff's recovery on her contract claim.
C. Globe Life's § 3911.06 Defense Also Bars Plaintiff's Bad Faith Claim.
Finally, and briefly, Globe Life is also entitled to summary judgment on Plaintiff's bad faith claim. Ohio law requires an insurer "to act in good faith toward its insured in carrying out its responsibilities under the insurance policy." Peterangelo v. State Farm Fire & Cas. Co., No. 3:12-cv-381, 2014 WL 1576907, at *9 (S.D. Ohio Apr. 17, 2014). Bad faith occurs when an insurer "fails to exercise good faith in the processing of a claim of its insured where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification therefor." Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397, 400 (1994).
Based on the discussion above, the record evidence demonstrates that Globe Life did not refuse to pay Plaintiff on Frohn's policy in bad faith. Instead, Globe Life's refusal rested on good faith concerns surrounding the answers given in the insurance application. Those concerns have now been vindicated. Plaintiff seemingly agrees, chiefly arguing that Globe Life's failure to prove a § 3911.06 defense dooms its attempt to receive judgment on her bad faith claim. (Doc. 74, #5539-40). But Globe Life has successfully stated a defense under § 3911.06—"reasonable justification" to refuse to pay. Zoppo, 644 N.E.2d at 400. Globe Life is entitled to summary judgment on Plaintiff's bad faith claim.
CONCLUSION
For the reasons stated, the Court GRANTS Globe Life's Motion for Summary Judgment (Doc. 67) and DISMISSES Plaintiff's Complaint (Doc. 1) WITH PREJUDICE.
SO ORDERED.