NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 10-1481


                                     KAY PARK,

                                                    Appellant.

                                          v.

                 METROPOLITAN LIFE INSURANCE COMPANY


                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D. C. No. 2-07-cv-03195)
                    District Judge: Honorable Katharine S. Hayden


                       Submitted under Third Circuit LAR 34.1
                                on January 28, 2011

             Before: FUENTES, CHAGARES and ROTH, Circuit Judges

                            (Opinion filed: March 30, 2011)


                                     OPINION


ROTH, Circuit Judge:

      Appellant Kay Park is the primary beneficiary of a $1,000,000 whole life

insurance policy acquired by and in the name of James Park (Mr. Park), her former

husband, who died on October 5, 2006, of lymphoma. She sued the insurer, Metropolitan

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Life Insurance Company (MetLife), after it refused to pay on the policy following her

husband’s death because of his alleged misrepresentations when purchasing the insurance

policy. Park appeals the order of the United States District Court for the District of New

Jersey granting MetLife’s Motion for Summary Judgment. For the reasons that follow,

we will affirm the judgment of the District Court.

I. Background and Procedural History

       Although born in Korea, Mr. Park was an American citizen who passed a

citizenship test conducted in English, ran several successful businesses, and lived in the

United States for approximately thirty years prior to applying for the contested insurance

policy. Mr. Park considered himself a fluent English speaker. On multiple occasions,

Mr. Park stated that he understood both Korean and English and did not need a Korean-

to-English translator.

       In November 2004, Mr. Park obtained life insurance in English from MetLife.

Mr. Kwak, a MetLife agent who speaks Korean, presented the insurance application to

Mr. Park on or about November 11, 2004. Kwak sat next to Mr. Park, requested that Mr.

Park read each question, asked whether Mr. Park understood the question, and recorded

Mr. Park’s responses. Although Mr. Park provided numerous answers to health-related

questions, his answers to a few questions inform our conclusions. First, when asked

whether he had “ever used tobacco products,” Mr. Park answered, “No.” Second, when

asked whether he had “EVER” received treatment for, or ever been diagnosed with, high

blood pressure, chest pains, heart attack or any other heart disease, Mr. Park answered,

“No.” Third, when asked whether he had, in the past six months, taken any medication or

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been under observation or treatment, Mr. Park answered, “No.” Finally, when asked

whether any sibling or parent “ever had heart disease, coronary artery disease, high blood

pressure, cancer, diabetes, or mental illness,” Mr. Park answered, “No.” At the

conclusion of the application, Mr. Park provided his signature to confirm that he

completed the application to “the best of [his] knowledge and belief,” that “all statements

are true and complete,” and acknowledging that his statements formed “the basis of any

policy issued.”

       On November 24, 2004, Dong Soon Yi, a fluent English and Korean speaker,

administered the Paramedical Exam portion of the application to Mr. Park. Yi conducted

the entire examination in Korean. Although Mr. Park provided numerous answers to

health-related questions presented in the Paramedical Exam portion of the application, his

answers to a few questions inform our conclusions. First, when asked to indicate the date

he last smoked, Mr. Park answered, “5/2003.” Second, when asked whether he had

“EVER” received treatment for, or ever been diagnosed with, high blood pressure, chest

pains, heart attack or any other heart disease, Mr. Park answered, “No.” Additionally,

when asked whether any sibling or parent “ever had heart disease, coronary artery

disease, high blood pressure, cancer, diabetes, or mental illness,” Mr. Park answered,

“No.” At the conclusion of the Paramedical Exam, Mr. Park provided his signature to

confirm that the answers were “correctly written, as given by [him], and are true and

complete to the best of [his] knowledge and belief.” Not only did Mr. Park attest to the

accuracy and completeness of his answers, but the policy itself contains a 10-day “free

look” provision allowing him to review the application for accuracy and return the policy

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prior to its operative date of commencement. Mr. Park did not return the policy and it

became effective on November 15, 2004.

       Mr. Park died 23 months later on October 5, 2006. A month later, Kay Park

submitted a claim for benefits under the policy. The policy sets forth a contestability

period of 24 months, which permits MetLife to conduct inquiries into the veracity of

answers provided in the application. 1 MetLife’s inquiry revealed that several of Mr.

Park’s statements in his insurance application and subsequent Paramedical Exam were

untrue. The record demonstrates that (1) only one month prior to the application, on or

about October 14, 2004, Mr. Park had a chest x-ray performed in Englewood Hospital’s

emergency room and was diagnosed with pneumonia; (2) on or about October 14, 2004,

Mr. Park was taking antibiotics prescribed by a physician; (3) Mr. Park smoked between

one and one-and-a-half packs of cigarettes per day for 25 years, until approximately

December 2005, (4) Mr. Park made four complaints between April 1999 and June 2004

regarding chest pain, sharpness, chest tightening and palpitations to his physician and

EKGs were performed; and (5) Mr. Park’s father was diagnosed with stomach cancer and

his sister was diagnosed with uterine cancer.

       In response to Park’s claim, MetLife had a claims examiner, a medical

underwriter, and a lay underwriter review the information and medical records obtained

during the claims process. Each reviewer opined that Mr. Park’s true medical history

would have affected the issuance of the policy or the policy’s premiums. MetLife


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         The policy provides, in relevant part, that “[MetLife] will not contest the validity
of [a] policy in force during the insured’s lifetime 2 years from the date of the Policy.”
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informed appellant by letter dated April 30, 2007, that because of Mr. Park’s

misrepresentations and their effect on the underwriting of the policy, MetLife was

denying liability on the policy. Park filed her complaint in the District of New Jersey on

July 11, 2007 seeking to enforce payment on the insurance policy. MetLife answered

Park’s complaint on October 17, 2007, and counterclaimed seeking a declaration that the

policy was rendered void and rescinded by Mr. Park’s material misrepresentations. After

discovery, the District Court granted summary judgment for MetLife. Park appealed.

II. Jurisdiction and Standard of Review

       The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. This

Court has jurisdiction pursuant to 28 U.S.C. 1291.

       We exercise plenary review over a district court’s order granting summary

judgment and apply the same standard that the district court should have applied. Farrell

v. Planters Lifesavers Co., 

, 278 (3d Cir. 2000). Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Bouriez v. Carnegie Mellon Univ., 

, 770 (3d Cir. 2009) (citing Fed. R. Civ. P. 56(c)). This determination is made by

viewing the “facts in the light most favorable to the nonmoving party and draw[ing] all

inferences in that party’s favor.” 

.

III. Discussion

       New Jersey law imposes a duty of “utmost good faith” upon insurance applicants,

Gallagher v. New England Mut. Life Ins. Co., 

, 861 (N.J. 1955), because

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insurers must rely on “the truthfulness of the insured’s rendition of his medical history,”

Equitable Life Assurance Soc’y v. New Horizons, Inc., 

, 469 (N.J. 1958).

“An insurer is entitled to relief when it relies on incorrect information provided by an

insured in an insurance application if the information was material either to the insurer’s

decision to insure or to the terms of the contract.” Massachusetts Mut. Life Ins. Co. v.

Manzo, 

, 197 (N.J. 1991). Thus, “an insurer may rescind a policy if the

insured knowingly misrepresented facts that would have affected the estimate of the risk

and the premium charged.” 

       Park contends that the District Court failed to construe the evidence in the light

most favorable to her, the nonmoving party, regarding whether Mr. Park’s statements

were not made in good faith or were knowingly false when made. The record

demonstrates that Mr. Park made material misrepresentations in his insurance application.

In an effort to deflect attention from Mr. Park’s admittedly false statements, Park contests

that the “‘false answers’ Mr. Park was blamed for were induced and created by

defendant’s own insurance agent, Kwak.” This claim is belied by Mr. Park’s own

assertions that he spoke English, his attestation that his application answers regarding his

history of health were truthful and complete, and the inconsistency between the answers

given to Kwak and those given to Yi, who interviewed Mr. Park in Korean.

       We agree with the District Court’s conclusion that no reasonable juror could

conclude from the record that Mr. Park’s answers were accurate or immaterial

representations. We also agree with the District Court’s conclusion that no reasonable

juror could conclude that Mr. Park’s answers were induced or created by Kwak. Nor

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could a reasonable juror could conclude that Mr. Park did not knowingly misrepresent his

medical history. Therefore, it was proper for the District Court to grant MetLife’s

summary judgment motion and enter judgment in MetLife’s favor on its counterclaim for

rescission.

IV. Conclusion

       For the reasons set forth above, we will affirm the judgment of the District Court.




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