Question whether deceased misrepresented material facts relating to his health on a supplementary health questionnaire required a full trial.

Insurance law – Life insurance – Misrepresentation by insurer – Practice – Summary judgments

Kulp Estate v. Cumis Life Insurance, [2019] O.J. No. 6541, 2019 ONSC 7495, Ontario Superior Court of Justice, December 23, 2019, W.U. Tausendfreund J.

The insurer brought a summary judgment motion to dismiss the insured’s claims on the basis that there was no genuine issue requiring a trial. The insurer took the position that the single issue in the action was whether the insurer was entitled to rescind or void a life insurance policy issued to the deceased on the basis that he failed to disclose, or that he misrepresented, material facts regarding his diabetes on a supplementary health questionnaire. The insured took the position that the question whether the deceased failed to disclose or made material misrepresentations on his application for life insurance raised genuine issues requiring a trial.

The deceased was a truck driver. He passed away as a result of a heart attack. Seven to ten years earlier he had been diagnosed with diabetes. The deceased had been issued two certificates of insurance by the insurer less than two years prior to his death. The alleged misrepresentation related to whether the deceased’s diabetes was in “good control” or “poor control” which turned on a blood test result.

The court concluded the issue of the status of the deceased’s control of his diabetes raised a triable issue of whether under the circumstances the insurer should have made further inquiries, and thus the insurer’s summary judgment motion was dismissed.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter.