
USCA1 Opinion

	




          May 31, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2262                                    CARLOS DECLET,                                Plaintiff, Appellant,                                          v.                                 CONFEDERATION LIFE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Arturo  Aponte  Pares   and  Peter  John  Porrata  on  brief   for            _____________________        ____________________        appellant.            Manuel Moreda-Toledo and McConnell Valdes on brief for appellee.            ____________________     ________________                                 ____________________                                 ____________________                 Per  Curiam.   Having carefully  reviewed the  record in                 ___________            this case, including the briefs of the parties, we affirm the            grant of summary judgment to defendant/appellee Confederation            Life Insurance Company of Canada.                 According  to  the undisputed  statement  of facts,  the            decedent made  material misstatements as to  the condition of            her health  in her August 1992  application for reinstatement            of her life insurance  policy.  By  the terms of the  policy,            such material  misstatements made the policy  voidable at the            option  of Confederation during  the two  year contestability            period,  which option  Confederation  exercised  in  February            1993.   Moreover,  according to  the  clear language  of  the            application, no  statement relative  to the insured's  health            could be deemed communicated  to Confederation unless set out            in   the  evidence   of  insurability   submitted  with   the            application  itself.   Consequently,  even  if  appellant did            orally communicate the state of decedent's health to an agent            of  Confederation in  1991, Confederation  would have  had no            duty to investigate, absent  some evidence submitted with the            application.     Since  no   such  evidence  was   submitted,            Confederation was  within its  legal right in  rescinding the            policy.1                   1                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                            ____________________               1Appellant's  claim that  Confederation  was reluctant  to               1            provide  him with  all  relevant discovery  material was  not            raised below and thus will not be heard on appeal.                                         -2-
