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Click here for the full text of this decision FACTS:Alma M. Dickens appeals the trial court’s summary judgment in favor of the appellees, Conseco Medical Insurance Co. and Fritz Aldrine. Dickens sued Conseco and Aldrine for benefits under a group major medical insurance policy. Conseco and Aldrine moved for summary judgment, alleging the policy had been rescinded because of misrepresentations by Dickens. Dickens offered her affidavit as summary judgment evidence, and testified to the following facts: Dickens obtained health insurance through an agent who was succeeded by Aldrine. Aldrine suggested Conseco as a replacement for Dickens’s previous health insurance carrier. While Aldrine brought papers to Dickens’s workplace for Dickens to sign, she did not read them and Aldrine did not suggest that she do so. Aldrine did not ask her to review the papers for accuracy or advise her any medical history was required. He never asked her any questions about her medical history. When Dickens made a claim on the policy, Conseco denied it because Dickens allegedly failed to disclose material medical information on the application. Conseco continued to debit Dickens’s checking account for monthly premiums. Dickens sued, alleging Conseco breached its contract with her by wrongfully denying her claim. Dickens further alleged Aldrine committed fraud by entering information on the application without Dickens’s knowledge or consent. Aldrine moved for summary judgment, alleging Dickens had ratified the policy application and therefore had waived any claim of fraud. Aldrine further alleged there was no evidence of essential elements of Dickens’s fraud claim, because Dickens did not establish Aldrine made any representation to her, and Dickens did not suffer injury from any fraud on Aldrine’s part. Conseco also moved for summary judgment on its affirmative defense that the policy was rescinded based upon Dickens’s misrepresentations. HOLDING:Affirmed. The policy provides it will be governed by the laws of the state of Illinios. Under Illinois law, a misrepresentation on an application for an insurance policy does not defeat coverage unless 1. the misrepresentation was made with the intent to deceive; or 2. the misrepresentation materially affected either the acceptance of risk or the hazard assumed by the insurance company. 215 Ill. Comp. Stat. Ann. 5/154. Conseco does not attempt to prove any intent to deceive on Dickens’s part. Instead, Conseco maintains the incorrect information on the application materially affected its acceptance of the risk and the hazard it assumed in issuing the policy. Conseco urges it has established these factors as a matter of law. Under Illinois law, whether an applicant’s statements are “material” is determined by “whether a reasonably careful and intelligent person would have regarded the facts stated as substantially increasing the chances of the events insured against, so as to cause a rejection of the application or different conditions.” Ratliff v. Safeway Ins. Co., 628 N.E. 2d 937 (Ill. Ct. App. 1993). Ordinarily, materiality is a question of fact. The question may be appropriate for summary judgment, however, “where the misrepresentation is of such a nature that all would agree that it is or is not material .” N. Life. Ins. Co. v. Ippolito Real Estate P’ship, 601 N.E.2d 773, 780 (Ill. App. Ct. 1992). The materiality of a misrepresentation in an insurance application may be established by the testimony of the insurer’s underwriter. Royal Maccabees Life Ins. Co. v. Malachinski, 161 F. Supp.2d 847, 854 (N.D. Ill. 2001). In support of its motion for summary judgment, Conseco offered the affidavit of Mindy L. Stadel, a second vice-president of the benefits department of Conseco, who testified in part: had the information on the application form been completed correctly, Conseco Medical Insurance Co. would not have issued the policy to plaintiff. She testified that the questions incorrectly answered were important to the company’s underwriting process to determine if the plaintiff had any pre-existing conditions, and to determine whether the coverage would be issued or if certain pre-existing conditions were excluded from coverage, or to increase the cost of the coverage to cover the increased risk. She testified the company was unaware of the pre-existing conditions until it received the claims, the medical records and plaintiff’s Oct. 24, 2000, letter. In her summary judgment response, Dickens does not challenge the affidavit or argue the misrepresentations were not material. Rather, she argues Conseco has not established intent to deceive on her part, and Conseco’s continued acceptance of premium payments estops it from rescinding the policy, or constitutes waiver or ratification. Illinois law does not require proof of intent to deceive if the insurance company proves a misstatement on an application materially affected its acceptance of the risk and the hazard it assumed. Further, Stadel’s affidavit included testimony that on Jan. 25, 2001, Conseco refunded all premiums paid to Dickens. Dickens, however, testified Conseco continued to debit her checking account for the monthly premiums due after learning of the material misstatements on the application. Under Illinois law, an insurer may waive a policy defense or be estopped from asserting one. Waiver arises from an affirmative act by the insurer, which consists of an intentional relinquishment of a known right. Here, Dickens does not argue she relied on the continued acceptance of premiums, does not dispute the refund of the premiums, and does not allege how it would be “unjust, inequitable, or unconscionable” to allow Conseco to rescind the policy based upon the undisputed failure to disclose material information on the insurance application. Summary judgment for Conseco was proper. Where an application for insurance is attached to and made a part of the policy and is accepted and retained by the insured, the insured is conclusively presumed to have knowledge of its contents and to have ratified any false statements therein. Odom v. Ins. Co. of the State of Pennsylvania, 455 S.W.2d 195 (Tex. 1970). Because Dickens was charged with knowledge of the false statements on the application, summary judgment was proper on her claim for fraud against Aldrine. Summary judgment for Aldrine was proper. OPINION:Whittington, J.

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