                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1350
                                     _____________

                                   MICHAEL SADEL,
                                       Appellant

                                            v.

           BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA;
          THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
                             _____________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2-09-cv-00612)
                     District Judge: Honorable Mitchell S. Goldberg
                                     _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 19, 2012

            Before: RENDELL, FISHER and CHAGARES, Circuit Judges.

                             (Opinion Filed: March 30, 2012)
                                    _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Plaintiff Michael Sadel sued the Berkshire Life Insurance Company of America

and its parent company, The Guardian Life Insurance Company of America, alleging bad

faith and breach of contract in connection with Berkshire’s failure to pay benefits under


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two individual disability insurance policies. The insurers counterclaimed for rescission

of the policies, arguing that Sadel’s policy applications contained fraudulent statements.

The District Court granted summary judgment to the insurers, rescinded the policies, and

ordered the insurers to refund the premiums Sadel paid. Sadel filed this timely appeal.

For the following reasons, we will affirm.

                                              I.

        Sadel is a licensed pharmacist who owned two pharmacies in North Philadelphia.

In 2002, he began seeing Linda May, a licensed clinical social worker, for treatment for

abuse of prescription narcotics, including Percocet, Oxy Contin, Vicodin, Xanax, and

Soma. In addition to meeting individually with May, Sadel also attended group sessions

for patients with substance abuse problems. These sessions continued through February

2006.

        In January 2005, Sadel purchased a disability insurance policy from Berkshire Life

Insurance Company of America. Sadel did not disclose his past drug use, treatment for

drug use, or treatment for various mental or emotional disorders to Berkshire’s agent,

who completed the policy application on his behalf. Thereafter, Sadel signed an

application that read: “Those parties who sign below, agree that . . . All of the statements

that are part of the application . . . are correctly recorded, and are complete and true to the

best of the knowledge and belief of those persons who made them.”

        Berkshire issued Sadel’s disability insurance policy on February 5, 2005. The

policy contains an incontestable provision that states: “This policy will be incontestable

as to the statements, except fraudulent statements, contained in the application after it has


                                               2
been in force for a period of two years during your lifetime.” The policy also contained a

Future Increase Rider Option that permitted Sadel to apply for an additional disability

insurance policy at a later time. In February 2007, Sadel exercised his option to purchase

the Future Increase Option policy. That policy contained an inconstestable provision

similar to the one in the initial disability insurance policy.

       In January 2007, Sadel lost several fingers on his left hand during an armed

robbery at one of his pharmacies. Concerned that medications might cause him to relapse

into addiction, Sadel disclosed to emergency room workers at Thomas Jefferson Hospital

that he had taken unprescribed narcotics in the past. After the incident, Sadel resumed

his individual counseling sessions with May. Her notes from one subsequent session

indicate that Sadel told her he lied on his application for the disability insurance policy.

       Sadel eventually returned to work at his two pharmacies, but he stopped working

after an incident in June 2007 in which a customer approached him from behind and said

“stick ’em up.” Sadel put his pharmacies up for sale, and, on August 16, 2007, notified

Berkshire of his intent to claim disability benefits under his initial and Future Increase

Option policies.

       In response to Sadel’s notification, Berkshire sent Sadel several forms, including a

“Claim Form” and an “Attending Physician’s Statement.” A Berkshire claims adjuster

also obtained Sadel’s medical records from Thomas Jefferson Hospital, which reflected

Sadel’s history of dependency on prescription drugs. After a considerable delay,

Berkshire also received a report and chart prepared by May that indicated she began

treating Sadel for narcotics use in September 2002 and that she had frequently met with


                                               3
Sadel between 2002 and January 18, 2005, the date he signed his initial disability

insurance application. Berkshire notified Sadel that it had found inconsistencies in his

application and was still reviewing the validity of the policies. Between 2007 and 2009,

Berkshire requested several additional documents from Sadel. At the time Sadel filed

suit, Berkshire was awaiting additional documentation and information to complete

Sadel’s claim form.

       Sadel sued Berkshire and Guardian Life, its parent company, in the Philadelphia

Court of Common Pleas in 2009, alleging bad faith and breach of contract and seeking

money damages for the unpaid disability income benefits. The insurers removed the case

to the district court for the Eastern District of Pennsylvania and counterclaimed for

rescission of the two policies, alleging that Sadel made fraudulent statements on his

disability insurance applications. The District Court granted summary judgment to

Berkshire and Guardian, and dismissed Sadel’s claims of bad faith and breach of

contract. It rescinded both disability insurance policies and ordered Berkshire to refund

the $7,648.20 in premiums Sadel had paid. Sadel filed this timely appeal.

                                             II.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s decision to grant summary judgment. McLeod v.

Hartford Life & Accident Ins. Co., 372 F.3d 618, 623 (3d Cir. 2004). “[S]ummary

judgment may be entered on a rescission claim when, based upon the evidence produced

in discovery, the only reasonable inference a fact finder could draw is that the applicant’s

answers were knowingly false, or made in bad faith.” Nw. Mut. Life Ins. Co. v. Babayan,


                                             4
430 F.3d 121, 132 (3d Cir. 2005). We agree with the opinion of the District Court on

each of the following three issues Sadel raises on appeal.

                                                  A.

       First, like the District Court, we reject Sadel’s argument that an insurer that

contests a disability insurance policy beyond the contestability period must satisfy a

“higher burden” than ordinarily applies in common-law fraud cases. The contestability

period for the initial and Future Increase Option policies expired on February 5, 2007,

over two years before Berkshire filed its rescission counterclaim. Berkshire argued that,

despite the expiration of the contestability period, rescission was justified in this case

because Sadel procured the policies through fraud. Relying on cases involving

incontestability provisions in life insurance policies, Sadel contends that, rather than

simply satisfying the common-law, “clear and convincing evidence” standard for fraud,

Berkshire was required to establish that (1) the insured’s conduct involved serious

deception, along the lines of using an imposter to establish eligibility for a policy; and

(2) the deception could not be detected through the normal investigation process.

       His argument is meritless. Pennsylvania law requires insurers to include

incontestability provisions in disability policies, and requires insurers to use language

equivalent to, or more favorable to the insured than, the following: “After three years

from the date of issue of this policy no misstatements, except fraudulent misstatements,

made by the applicant in the application for such policy shall be used to void the policy

or to deny a claim for loss incurred or disability (as defined in the policy) commencing

after the expiration of such three year period.” 40 Pa. Stat. Ann. § 753(A)(2)(a)


                                              5
(emphasis added). That language clearly allows insurers to use fraudulent misstatements

to void a policy after the contestability period expires and does not suggest any special,

higher burden for establishing fraud beyond that date.

       By contrast, Pennsylvania law prescribes a different incontestability provision for

life insurance policies, which does not contain any explicit fraud exception and

specifically states that “provisions relative to disability benefits” may be excepted from

the incontestability requirement for life insurance. See 40 Pa. Stat. Ann. § 510(c)

(requiring life insurance policies to include “[a] provision that the policy shall be

incontestable after it has been in force, during the lifetime of the insured, two years from

its date of issue, except for nonpayment of premiums; and that, at the option of the

company, provisions relative to disability benefits . . . may also be excepted”). Thus, to

the extent the cases Sadel cites, which all involve life insurance policies, suggest a higher

burden for establishing fraud beyond the contestability period, they do not shed any light

on this case.

       We find no support for Sadel’s “higher burden” standard and, accordingly, agree

with the District Court that the well settled standard for voiding an insurance policy under

Pennsylvania law during the contestability period, that “an insurer has the burden of

proving, by clear and convincing evidence, the following three factors: (1) the insured

made a false representation; (2) the insured knew the representation was false when it

was made or the insured made the representation in bad faith; and (3) the representation

was material to the risk being insured,” Northwestern Mutual, 430 F.3d at 129 (footnote

omitted), also applies in this case.


                                              6
                                                  B.

       Second, we agree with the District Court that Berkshire satisfied that standard. On

appeal, Sadel does not argue that the findings of the District Court were incorrect.1

Instead, he continues to try to explain away his fraudulent statements, arguing that he was

doing well when he filled out the initial disability insurance application and his drug

abuse was a small matter he dealt with in a matter of weeks. As the District Court

properly found, those excuses do not change the fact that Sadel knowingly provided false

information on his insurance application. We therefore agree with the District Court that

Berkshire established each element necessary to rescind both disability insurance

policies.

                                             C.

       Third, we agree with the District Court that Sadel has presented no evidence to

support his claim that Berkshire acted in bad faith in investigating his claim or refusing to

pay benefits. “[I]n order to recover on a bad faith claim, the insured must prove: (1) that

the insurer did not have a reasonable basis for denying benefits under the policy; and (2)

that the insurer knew of or recklessly disregarded its lack of a reasonable basis in denying

the claim.” Northwestern Mutual, 430 F.3d at 137.



1
  The District Court found that each element for rescission was met, as follows: (1) Sadel
did not dispute that the answers in his application were false; (2) Sadel admitted that he
knowingly provided false answers; and (3) Berkshire’s underwriting guidelines state that
a policy will not be issued to anyone who abuses controlled substances within five years
of the application date and an underwriter for Berkshire confirmed in his deposition that
the company would not issue a policy to anyone who disclosed a history of drug abuse
within the past five years.

                                             7
       Sadel’s primary bad-faith theory was that Berkshire unreasonably delayed the

adjustment of his claim. But, as the District Court found, the undisputed evidence

suggests that the adjustment delay was attributable to Sadel and May, not Berkshire:

Sadel took four months to return the initial claim form, and May did not respond to

Berkshire’s requests for information until another four months after that. Sadel also

failed to provide Berkshire with information it requested as to his financial condition and

his claim that he was “totally disabled” under the policy.

       Furthermore, we agree with the District Court that, because Sadel knowingly

provided fraudulent misrepresentations on his disability insurance applications and

subsequent documents, he cannot establish bad faith on the grounds that Berkshire lacked

a reasonable basis to deny him benefits.

                                            III.

       Accordingly, and for essentially the reasons set forth in the District Court’s

opinion, we will affirm the judgment of the District Court.




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