Mr. Louis H. Cohen, Washington, D.C., for appellant.

Mr. John Eris Powell, Washington, D.C., for appellee.

Before LEVENTHAL and ROBB, Circuit Judges, and FRANK A. KAUFMAN,* U.S. District Judge for the District of Maryland.

FRANK A. KAUFMAN, District Judge:

On May 1, 1968, one of defendant insurance company's agents visited the home of Melvin and Leola Blair in the District of Columbia and obtained from Melvin, employed as a security guard, an application for an insurance policy on Melvin's life pursuant to which Leola, his wife, the manager of a government agency's snackbar, was the named beneficiary. The policy, which called for premiums of $12.73 per month, was issued on May 20, 1968. After Melvin died on February 16, 1970, defendant refused to make payment under the policy, on the ground that there had been material misrepresentations in and material omissions from Melvin's application in connection with his medical history. Defendant's tender of payment of the total amount of the premiums ($208.06) paid prior to Melvin's death was refused by Leola Blair, who instead instituted suit in the court below seeking damages in the amount of $12,752.73.

The policy contains the usual provisions that no agent "has authority * * * to bind the Company by making any promise or representation or by giving or receiving any information," and that "[t]he policy, together with the application, * * * constitutes the entire contract." While counsel for plaintiff contended otherwise in this Court, it is clear, as the court below found upon granting defendant's motion for summary judgment and denying plaintiff's similar motion, that the application "contained material misrepresentations affecting the acceptance of the risk." Specifically, the application failed to reveal that from November, 1966 to November, 1967 Melvin Blair was treated regularly by a doctor for high blood pressure, hypertension and obesity, and that the doctor prescribed medicine for that high blood pressure and advised Blair to go on a diet.1 Further, Mrs. Blair seemingly concedes the truth of the alleged omitted facts. However, she has stated in an affidavit filed in this case that her husband orally informed defendant's agent of all of those facts on May 1, 1968, when the application form was being jointly worked on, discussed between, and completed by that agent and her husband in her presence in the Blairs' home; that the agent at that time requested Melvin Blair to sign the application form in blank, prior to its being completed; that Melvin Blair executed the application in blank; that

[a]fter my husband signed the papers [the agent] laid the paper out on the table and orally asked my husband questions and in response thereto my husband orally answered the questions, and [the agent] in his handwriting made recordings on the form;

and that

[a]fter my husband and I orally answered the questions asked by [the agent], which he was writing on the application, [the agent], did not show him the application he had completed, nor did he ask my husband to read the answers [the agent] had written on the application.

Mrs. Blair contends that the agent's knowledge of the actual facts of Melvin Blair's medical history is chargeable to the defendant insurer and that therefore the latter cannot avoid liability under the policy because of the misstatements in and the omissions from the application. In response, the defendant asserts that once Melvin Blair signed the application and declared under oath that the statements and answers given therein were correct and complete, it, as an insurance company, was entitled to rely upon that declaration, any oral statements by Mr. or Mrs. Blair to the agent notwithstanding. In that connection, while it contends that such oral statements, if any, are immaterial, the defendant does not concede that any such oral statements were in fact made or that the agent acted and/or directed as plaintiff has stated under oath.

The record in this case is devoid of facts establishing whether the policy application was accepted by defendant within the District of Columbia, or outside of the District, as, for instance, in New Jersey, Prudential's state of incorporation. However, all relevant and material acts and statements, agreed or alleged to have occurred, took place within the District of Columbia. Where "the laws of two jurisdictions are involved," in this Circuit the rule is that "the forum applies the law of the state which has the 'more substantial interest in the resolution of the issue."'2 That jurisdiction is clearly the District of Columbia, rather than New Jersey or any other state. However, because of the absence of any case law precedents in the District of Columbia as to the substantive question posed herein, the decisions of other courts, including those of New Jersey, have been carefully considered by this Court in this case.

In granting summary judgment below in this case, the trial court relied upon this Court's holding in Jannenga v. Nationwide Life Ins. Co., 109 U.S.App.D.C. 385, 288 F.2d 169 (1961). But in that case, in which the insured unsuccessfully appealed from a verdict which was entered in favor of the defendant insurer at the close of the plaintiff's case because of material misrepresentation in the application, Mr. Chief Justice Burger (then Circuit Judge) characterized (at 173) the evidence at trial as having disclosed that "the assured at the least consciously permitted an application containing material misrepresentations to be presented by subordinate agents to officers of the insurance company under circumstances which he knew negatived any probability that the actual facts would be revealed."3 In Jannenga, the appellant, who had attended law school and also worked as an insurance agent, applied to Nationwide for $10,000 of insurance on the life of his newly born daughter and signed an application form in which he stated that no other insurance on his daughter's life was "pending or contemplated." 288 F.2d supra at 170. In fact, the father had, on the same day, applied to another company for $10,000 of insurance on his daughter's life, on the previous day for $5000 of insurance from a third company, and a month later for $10,000 of insurance from a fourth company. At trial, after his daughter's death, the father "testified that each of the life insurance agents told him that the [application form's] questions referred only to delivered policies and that the negative answer in the Nationwide application was entered by the agent after such explanation." 288 F.2d supra at 170 (emphasis in original). There is no indication in Judge Burger's opinion that the father made any claim that he had not read the policy application or lacked knowledge of its contents. In this case, as contrasted with Jannenga, there has been no trial, and the plaintiff has specifically alleged that her husband did not read the application form before it was submitted to the company and has stated that that failure to read as well as any material misrepresentation or omission was caused solely by the insurer's agent. In Kaitlin v. Metropolitan Life Ins. Co., 65 A.2d 188, 190 (Mun.Ct.App.D.C.1949), cited, inter alia, in Jannenga (288 F.2d at 173) in support of the Court's holding, the Court found that the insured, who alleged that the insurer's agent knew the true facts of his medical history, had himself made misstatements with regard thereto. In this case, in the context of defendant's motion for summary judgment, this Court must assume that neither Melvin nor Leola Blair made any misstatements or was guilty of any material omissions and that neither of them had any actual knowledge that the agent recorded on the application form answers which were not in accord with their statements to the agent.

Under section 35-414 of the District of Columbia Code-

[t]he falsity of a statement in the application for any policy of insurance shall not bar the right to recovery thereunder unless such false statement was made with intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the company.

Even assuming arguendo the facts as plaintiff states them, the misstatements in and omissions from the application would appear to have "materially affected . . . the acceptance of the risk" and "the hazard." Thus, the defendant, Prudential, would not appear barred by section 35-414 from asserting the falsity of statements in the application relating to Melvin Blair's medical history. "The test of materiality is whether the representation would reasonably influence the insurer's decision as to whether it should insure the applicant. . . . And where the evidence warrants, materiality may be found as a matter of law." Jannenga v. Nationwide Life Ins. Co., supra at 172. The defense of material misrepresentation, however, is in its true nature an equitable defense. As such, the question presented in this case is whether an insurer may successfully interpose the defense of misstatement of, or omission to state, material medical facts in an application form where, assuming as we must in the context of defendant's motion for summary judgment, the applicant, at the request of the insurer's agent, signed the application form in blank, the applicant and his wife orally gave truthful and full answers to the questions on the application form as they were propounded by the agent, the agent himself recorded one or more material misstatements of fact on the application form or omitted to record material information, and neither the applicant nor his wife knew of the agent's entry on the application form of any such misstatement or of the agent's omission of any material information, or read the application form either before its submission to the insurer, or after the policy was issued and returned to the insured with the application form in reduced form attached to and made part of the issued policy. There are cases in which courts have held that when an applicant signs an application form in which the agent has recorded information different from that given to him by the applicant, and the applicant has not read the application before signing it and has not otherwise verified the information in it, the insured is bound by the answers set forth in the application form. See, e.g., New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 6 S. Ct. 837, 29 L. Ed. 934 (1886). Cf. Mutual Life Ins. Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S. Ct. 676, 60 L. Ed. 1202 (1916); Lumber Underwriters of New York v. Rife, 237 U.S. 605, 35 S. Ct. 717, 59 L. Ed. 1140 (1915).4 See also the Maryland view reflected by Stumpf v. State Farm Mut. Auto Ins. Co., 252 Md. 696, 713, 251 A.2d 362 (1969); Nationwide Mut. Ins. Co. v. McBriety, 246 Md. 738, 741-742, 230 A.2d 81 (1967); Commercial Cas. Ins. Co. v. Schmidt, 166 Md. 562, 571, 171 A. 725 (1934).5 But in each of the Maryland cases, the decision adverse to the claimant came after trial and a full development of the facts. Presumably, even in Maryland, a claimant could advance a reason for nonreading sufficient to enable him to overcome the defense of misstatement.

An examination of the authorities reveals that American courts have adopted a number of different positions when confronted with the question posed in this case. Some, like Maryland, have placed a heavy and perhaps an almost insurmountable burden on the applicant to read and to be responsible for all statements in or omissions from the application submitted by him. Others, recognizing that insurance companies "through advertising and tradition have created for themselves the image that they and their employees are above suspicion," have held that insurers should "not be allowed to hide behind the defense which strict contract law would provide." Note, Can a Beneficiary Collect on an Insurance Policy After Agent Places False Answer in Application?, 35 Southern Calif.L.Rev. 506, 512 (1962), discussing, inter alia, various middle-of-the road positions and the reasons for their adoption by some courts.

In the absence of any controlling District of Columbia precedent,6 this Court adopts the view set forth by Chief Justice Vanderbilt in Heake v. Atlantic Cas. Ins. Co., 15 N.J. 475, 105 A.2d 526 (1954). In that case, citing, inter alia (at 105 A.2d supra at 530), 17 J. Appleman, Insurance Law and Practice Sec. 9401 (1945), and holding imputable to the insurance company actions by its agent in entering answers on the application form which were not in accordance with information furnished orally by the insured, Justice Vanderbilt wrote that "[i]n order to determine whether equitable relief by way of reformation should be granted it is necessary to look at all the facts" (105 A.2d supra at 530). In Heake, the fraud practiced by the agent consisted of recording the applicant's age as twenty-three when the latter was seventeen; the policy was unusual in terms of numbers of pages, size of print, and remote locations of endorsements; and the applicant did not read the application. The teaching in Heake illustrates the heavy burden placed upon an insured, who has not read information fraudulently written into his application by an insurance company's agent, to show why he should be entitled to relief. See Nat'l Premium Budget Plan Corp. v. Nat'l Fire Ins. Co. of Hartford, 97 N.J.Super. 149, 234 A.2d 683, 714-716 (1967), citing and discussing Heake and stating (at 716) that-

. . . at this juncture the law in New Jersey is generally that one who sues an insurance company in fraud and deceit for the acts of its agent, and who could have protected himself by an examination of the policy, is under an obligation to do so. This rule is subject to the exception carved out by Heake to the effect that such a duty is lifted from a defrauded insured when all the circumstances combine to render inequitable its imposition.

Under New Jersey's view, the insured, or his beneficiary, is given an opportunity to explain what he did or did not do, and why, and what the insurer's agent did-and to show why the insurer should be equitably estopped from resisting payment under the policy because of the misstatements in or omissions from the application. The same approach has been taken by the Supreme Judicial Court of Massachusetts. In John Hancock Co. v. Schwarzer, 354 Mass. 327, 237 N.E.2d 50, 52 (1968), that Court invoked the doctrine of equitable estoppel to excuse non-reading of the life insurance application, holding that result to be implicitly required by its earlier holding in Sullivan v. John Hancock Co., 342 Mass. 649, 174 N.E.2d 771 (1961), in which, as likewise alleged by Mrs. Blair herein, the insured gave correct answers and the agent wrote down false answers. In Sullivan, the Court (at 774) stated:

* * * It would be unfair to permit an insurance company to avoid a contract of insurance because of the failure of a company's own insurance agent or examining physician correctly to record the answers given by an applicant. In this highly competitive business (see 62 Harv.L.Rev. 87, 91, 93) with the complexity of the varied types of insurance existing today, it has been recognized that applicants frequently do in fact rely upon a company's representatives. The courts have been unwilling to permit the companies to assert as a defence the inadequate or improper performance of these representatives.

One year after the Schwarzer decision, the Appellate Court of Illinois, in the course of reversing entry of summary judgment for the insurer, wrote in Oberg v. John Hancock Mutual Life Ins. Co., 114 Ill.App.2d 152, 251 N.E.2d 918, 923 (App.Ct. of Ill. 1969): "Probably the weight of modern authority sustains the rule that when an applicant gives correct oral answers which are incorrectly recorded by an authorized agent, the insurer cannot rely upon the falsity of such answers to avoid the policy." In support of that proposition the Illinois court cited the Massachusetts opinion in Schwarzer and also opinions of the highest courts of Kansas, Nebraska, Vermont and Ohio.7

It may be argued that the approach taken by some courts such as those of New Jersey and Massachusetts opens the door for false claims to be visited by claimants upon insurers. But insurance companies can protect themselves by instructing their agents not to fill in the answers to questions on application forms and to require such answers to be written by the applicants themselves, or in the alternative, to set up internal company procedures pursuant to which any application form which contains answers written by an agent is given careful, additional screening, which, for instance, in this case, would seemingly have led Prudential to utilize the medical authorization given by Melvin Blair and to have obtained reports from the doctors whom Melvin Blair consulted.

There remains one additional point for discussion. The policy was delivered by Prudential to Melvin Blair without the medical authorization pursuant to which the latter had directed any physician to give Prudential any information it requested about his past medical history. Section 35-1002 D.C.Code, Validity of Policy-Good Faith of Insured Material Element-Unsound Health as Defense, provides in part:

* * * Proof by the insurer of fraud, intent to deceive, unsound health, bad faith, breach of warranty or condition precedent, or other matter of defense; shall be subject to the provisions of section 35-203.

Section 35-203 D.C.Code, Copy of Application to be Delivered with Policy-Statement in Application as a Defense, provides in part:

Each life insurance company . . . doing a life insurance business in the District of Columbia shall deliver with each policy issued by it a copy of the application made by the insured so that the whole contract may appear in such application and policy, in default of which no defense shall be allowed to such policy on account of anything contained in, or omitted from, such application.

In Washington Fidelity Nat. Ins. Co. v. Burton, 287 U.S. 97, 53 S. Ct. 26, 77 L. Ed. 196 (1932), the insurer failed to deliver with the policy a copy of the application. Holding that the insurer should nevertheless be permitted to introduce evidence at trial that the insured had failed to disclose his lack of sound health when he applied for the coverage, Mr. Justice Butler wrote (at 99-100, 53 S. Ct. at 27):