United States District Court, D. Connecticut
LAUREL M. COTE Plaintiff
UNITED OF OMAHA LIFE INSURANCE COMPANY Defendant.
RULING ON PLAINTIFF'S AND DEFENDANT'S MOTIONS
FOR SUMMARY JUDGMENT
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Laurel M. Cote has sued Defendant United of Omaha Life
Insurance Company (“Omaha”) for breach of
contract, alleging that Omaha wrongly canceled the life
insurance policy (“the Policy”) that it issued to
her husband, Caroll Cote, in 2011.
advised the Plaintiff that it was rescinding Mr. Cote's
policy in August 2013, after Omaha determined that Mr. Cote
had misrepresented his medical history in his application for
life insurance. Ms. Cote then filed an action for breach of
contract in Connecticut State Court on October 9, 2014 and
Defendant removed the case to this Court on November 4, 2014.
See Notice, ECF No. 1. On July 15, 2016, both
parties moved for summary judgment. For the reasons that
follow, both motions are DENIED.
September 19, 2011, Mr. Cote applied for a $150, 000 life
insurance policy from United of Omaha for mortgage
protection. Def.'s L.R. 56(a) Stmt., ECF No. 59, ¶
1. He completed a supplemental application regarding his
health on September 27, 2011. Id. at ¶ 2.
Question 3(h) of this application asked if he had “ever
(a) received treatment for, or (b) been advised by a member
of the medical profession to seek treatment regarding:
cancer, tumor, […or a] blood/bleeding disorder.”
Id. at ¶ 3. The application also required Mr.
Cote to “immediately notify” United of Omaha any
time he experienced a “change in health or
habits” that would change his answers to any of the
questions on the Application. Id. at ¶ 4.
processing Mr. Cote's application, Omaha issued the
Policy on October 6, 2011. Id. at ¶ 5. Mr. Cote
was diagnosed with Leukemia in January, 2012. Id. at
¶ 6. He passed away on December 29, 2012. Id.
at ¶ 7. Because he died within two years of obtaining
the Policy, Omaha did a standard review of his application.
Id. at ¶ 8. During this review, Omaha
discovered that doctors had reported two issues with Mr.
Cote's blood-thrombocytopenia (low platelet count in his
blood) and anemia (low red blood cell count)-at appointments
between May and September of 2011. Id. at ¶ 10.
Omaha rescinded the Policy in a letter to Plaintiff Laurel
Cote on August 6, 2013. Id. Omaha claimed that Mr.
Cote had made a material misrepresentation, which warranted
rescission, by answering “no” to Question 3(h) of
the Policy questionnaire. Id. In October 2014, Ms.
Cote sued Omaha for breach of contract. See Not. of
Removal, ECF No. 1., ¶ 2.
Cote's Medical History
record reveals that Mr. Cote met with two of his doctors, Dr.
Kevin D. Dieckhaus and Dr. Stanley Babu, to discuss abnormal
blood test results in the spring of 2011. See
Pl.'s L. R. 56(a) Stmt., ECF No. 55, ¶¶ 1-3;
Def.'s L. R. 56(a) Stmt., ¶¶ 24-25. In early
2011, Mr. Cote had an operation on his leg after falling from
a tree in early 2011. Pl.'s L.R. 56(a) Stmt., ¶ 3.
After this operation he developed an infection that required
intensive treatment. Id. at ¶ 4. At this point,
he started to see an infectious disease specialist, Dr.
Dieckhaus, to monitor the infection. Id. at ¶
Treatment by Dr. Dieckhaus in 2011
Dieckhaus did “bloodwork” for Mr. Cote on July
13, August 12, and September 9, 2011 and discovered that Mr.
Cote had anemia and thrombocytopenia. Pl.'s L.R. 56(a)
Stmt. ¶ 9-12. Dr. Dieckhaus believed that the blood
conditions might have been caused by Mr. Cote's
consumption of Bactrin, a strong antibiotic that he had been
taking to treat the infection on his leg. Id. at
Dieckhaus' medical records confirm that he disclosed the
results of Mr. Cote's blood tests to Mr. Cote and his
wife at an August 22, 2011 appointment. Pl.'s L.R. 56(a)
Stmt. ¶ 12. The records state that “Mr.
Cote and his wife appeared to be well aware of the potential
risks and benefits of continued antibiotics versus stopping
them and he is willing to attempt a trial of lower dose
antibiotic with supplementation of his folate.”
Id. at 14 (citing Dieckhaus Medical Report, Ex. B to
Dickman Aff., ECF No. 58-2) (“Dieckhaus Medical
Report”). Dr. Dieckhaus prescribed folate to Mr. Cote
and scheduled another blood test on September 6, 2011.
Id. at 19-20. His notes from the meeting state
“I am concerned regarding [Mr. Cote's] blood work,
which is now showing a decrease in his platelet
count…. After extensive discussion, we have opted to
reduce [Mr. Cote's] Bactrin.” Dieckhaus Medical
appointment with the Cotes on September 28, 2011, Dr.
Dieckhaus explained the results of the September 6 blood
test. He explained that Mr. Cote's platelet count had
dropped to a dangerous level. Pl.'s L.R. 56(a) Stmt.
¶ 19. He mentioned to the couple that it was a
“critical problem” and a “big issue that
needed to be addressed.” Id. at ¶ 36;
see also Def.'s L.R. 56(a) Stmt. ¶¶
20-21. A summary of the meeting in Dr. Dieckhaus's
records confirms that Dieckhaus “suspected” that
Mr. Cote's thrombocytopenia was due to his dosage of
antibiotics. Dieckhaus Medical Report II, Ex. F to Dickman
Aff., ECF No. 58-7. Dr. Dieckhaus recommended discontinuing
the antibiotics and arranged for Mr. Cote to take weekly
blood tests to assess his platelet levels. Id.
record does not make clear whether Dr. Dieckhaus used the
word “disorder” when describing Mr. Cote's
blood problems. Dr. Dieckhaus did state that he had “no
reason to believe” that anyone had told Mr. Cote that
he had a “blood disorder.” Dieckhaus Dep. 93: 1-5
(“Q. As you sit here today, do you have any reason to
believe that Mr. Cote had been told by anybody that blood
disorder was a possible problem for him in September or
October of 2011? A. No.”). He also stated that he
“probably would not have” used the word
“disorder” to describe Mr. Cote's test
results. Id. at 121: 16-19 (responding to a question
asking “Do you know if you would have used the word
“disorder” in connection with describing those
low blood values?).
Treatment by Dr. Babu in 2011
Cote met with a primary care physician, Dr. Babu, for a
pre-operation physical on May 10, 2011. Def.'s L.R. 56(a)
Stmt., ¶ 11. Dr. Babu reviewed Mr. Cote's blood
tests at this appointment and diagnosed him with anemia.
Pl.'s L.R. 56(a) Stmt., ¶ 34, He also reviewed Mr.
Cote's blood work again on September 30, 2011, at a
“health maintenance evaluation” of Mr. Cote.
Pl.'s L.R. 56(a) Stmt., ¶ 26; Def.'s L.R. 56(a)
Stmt., ¶ 25. Dr. Babu's notes from this meeting
describe a diagnosis of anemia and thrombocytopenia.
Def.'s L.R. 56(a) Stmt., ¶ 25 (citing Babu Medical
Report, Ex. G, Dickman Aff., ECF No. 58-7) (“Babu
Medical Report”). Dr. Babu's notes further state
that Mr. Cote's anemia was “asymptomatic” and
that he was taking iron supplements and “doing
well.” Babu Medical Report, 1. Under the
“thrombocytopenia” diagnosis, Dr. Babu noted that
the “etiology [was] unclear at this time” and
wrote “recheck again.” Id. at 3. At the
appointment, Dr. Babu told the couple that Mr. Cote's
throbocytopenia might have been caused by his antibiotics or
by a different condition called idiopathic thrombocytopenic
pupura (ITP). Def.'s L.R. 56(a) Stmt., ¶ 28. He
asked Mr. Cote to get more blood tests. He also did not use
the word “disorder” at the appointment. Pl.'s
L.R. 56(a) Stmt., ¶ 39; Babu Dep. 69: 7-13 (“Q.
Okay. Do you have any recollection of ever telling Carroll
Cote that he had a blood disorder? A. Never. Q. If you had
told him he had a blood disorder, would you have made note of
that in any of your charts or records? A. I would
Evidence of Mr. Cote's “Blood Disorder”
record contains statements from both doctors clarifying their
understanding of the term “blood disorder.” In
response to a question about thrombocytopenia, Dr. Babu
stated that he considered the condition to be a “lab
result” rather than a “blood disorder. Babu Dep.,
69: 4-13 (“Q. Do you consider that a blood disorder or
simply a symptom, a lab result? A. A lab result”). Dr.
Babu stated that anemia was a “low ...