RULING

JAMES J. BRADY, District Judge.

This matter is before the Court on a Motion for Summary Judgment (Doc. 8) brought by the defendant, Companion Life Insurance Company ("Companion"). The plaintiff, James McLin ("McLin"), filed an opposition (Doc. 11) and the defendant filed a reply brief (Doc. 12). Oral argument is unnecessary. The Court's jurisdiction exists pursuant to 28 U.S.C. § 1332. For the reasons stated herein, the defendant's Motion for Summary Judgment (Doc. 8) is DENIED.

I. BACKGROUND

The following facts are undisputed. On February 28, 2013, McLin submitted an online application for short-term health insurance to Companion. On March 3, &2013, Companion sent a letter to McLin explaining that Companion issued the short term policy. The letter also instructed McLin to download his policy documents, including the application, from a secured website using a username and password. At some point thereafter, McLin accessed the website and downloaded the insurance documents.

On July 16, 2013 which was during the six month effective period of McLin's March policy, McLin was involved in a motorcycle accident. McLin subsequently submitted a claim to Companion for coverage under the policy. During its investigation of this claim, Companion discovered that McLin received treatment at Baton Rouge Orthopedics in July 2012, where he was diagnosed with degenerative disc disease. The parties dispute whether McLin was aware of this diagnosis at the time he submitted his application for insurance.

Question 3 of the application for insurance, which McLin submitted to Companion, asked whether McLin was diagnosed or treated for degenerative disc disease within the last 5 years. McLin responded, "no." The application also stated that coverage could not be issued if the applicant answered "yes" to questions 1 through 4. According to Companion, McLin's negative response to Question 3 was incorrect and false in light of his July 2012 diagnosis, and McLin knew this at the time he completed the application. For this reason, Companion terminated McLin's policy on December 11, 2013.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A party must support its summary judgment position by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c)(1).

Although the Court considers evidence in a light most favorable to the non-moving party, the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions will not satisfy the non-moving party's burden. Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 139-40 (5th Cir. 1996). If, once the non-moving party has been given the opportunity to raise a genuine fact issue, no reasonable juror could find for the non-moving party, summary judgment will be granted for the moving party. Celotex, 477 U.S. at 322-23.

III. DISCUSSION

Because federal jurisdiction is grounded on diversity of citizenship, Louisiana insurance law governs this case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The applicable Louisiana statute provides:

La. R.S. § 22:8601 (emphasis added). In its motion for summary judgment, Companion argues that the plain language of La. R.S. § 22:860 is unambiguous—an insurer must show either (1) intent to deceive, or (2) materiality. Def.'s Reply 4, Doc. 12. According to Companion, because the statute is clear and unambiguous, the law should be applied as written. Id. Although Companion's interpretation is supported by the text of the statute,2 numerous courts interpret the statute as requiring both (1) intent to deceive, and (2) materiality.

Despite the presence of the disjunctive "or" in the statute, Louisiana courts consistently held § 22:619,3 required an insurer seeking to rescind a policy based upon misrepresentations in the application to prove both (1) that the false statements were made with actual intent to deceive, and (2) the misstated facts were material to the insurer's risk.4 After the statute was amended in 2008, Louisiana courts, as well as federal district courts in Louisiana, continued to interpret now § 22:860 in the conjunctive.5

Here, there is a genuine issue of material fact regarding whether McLin intended to deceive Companion by answering "no" to Question 3. According to McLin, he was not aware that the July 2012 doctor visit indicated that he had degenerative disc disease. McLin Aff. ¶ 9, Doc. 11-2. Companion argues that McLin had the intent to deceive because the application was clear that answering "yes" to Question 3 would preclude him from coverage under the policy. Based on the scant evidence provided at summary judgment, no reasonable juror could find that McLin acted with the requisite intent to deceive when completing the insurance application. Therefore, summary judgment is inappropriate at this time.6

IV. CONCLUSION

For the reasons stated above, the defendant's Motion for Summary Judgment (Doc. 8) is DENIED.