UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PILAR G. LUNTAO,
Plaintiff-Appellant,

v.
                                                               No. 97-2415
EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-96-439-DKC)

Submitted: August 18, 1998

Decided: September 8, 1998

Before HAMILTON and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert K. Goren, GOREN & WOLFF, L.L.C., Rockville, Maryland,
for Appellant. Ruth Atkinson Lusby, RUTH ATKINSON LUSBY,
P.A., Towson, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Pilar G. Luntao filed this action against the Equitable Life Assur-
ance Society of the United States after Equitable rescinded her dis-
ability insurance policy. Luntao appeals the district court's order
denying her motion for summary judgment and granting summary
judgment in favor of Equitable. Finding no error, we affirm.

I.

In the summer of 1992, Luntao met with Domingo C. Pamulak-
lakin, an Equitable agent, to apply for disability and life insurance
policies. During this meeting, Luntao completed an informal form
which required her to provide personal information, including her
medical history. Pamulaklakin told Luntao that her handwriting on the
form was too messy and had her sign a blank formal application, stat-
ing that he would later complete the application using information
Luntao had previously provided. It is undisputed that Pamulaklakin
and his manager, Patrick Silvera, later completed the application
form, which contains none of Luntao's handwriting other than her
signature.

The application, as completed, contained the following questions
and answers relevant to this appeal:

          QUESTION: Name and address of your personal physi-
          cian (If none, so state).

          ANSWER: Dr. Prospero Flores/Providence Hospital Dr.
          Edward Rankin

          QUESTION: Date and reason last consulted if within the
          last five years.

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         ANSWER: Routine physical

         QUESTION: What treatment was given or recommended.

         ANSWER: None - excellent health.1

         QUESTION: Have you within the last seven (7) years
         been treated for . . . any disease or disorder
         of the muscles or bones, including the back
         ...?

         ANSWER: No

Luntao claims that, in filling out the application, Pamulaklakin omit-
ted pertinent medical history relating to prior injuries she had suf-
fered. Specifically, Luntao maintains that she informed Pamulaklakin
of previous treatment she had undergone in connection with back
problems within the past seven years. In addition, Luntao states that
Pamulaklakin was aware of a 1988 application which Luntao submit-
ted to Equitable, in which she disclosed that she sustained a cervical
strain of the back in August 1986, that she received treatment from
a Dr. Edward Rankin, and that she was taking medication for pain relief.2

In processing the application prepared and submitted by Pamulak-
lakin, Equitable did not refer to Luntao's 1988 application, even
though Equitable's representative responsible for processing the
application was aware of its existence.3 However, Equitable did tele-
phone Luntao and ask her whether the application form was accurate.
Luntao responded affirmatively, believing that the medical informa-
tion she provided Pamulaklakin had been included on the actual appli-
cation.

Equitable issued the disability insurance policy on September 8,
1992 and delivered it to Luntao at a later date. 4 At the time Equitable
_________________________________________________________________
1 J.A. at 33.
2 Luntao withdrew this application prior to Equitable's final determina-
tion.
3 See J.A. at 184-85.
4 The parties dispute the date Luntao received the policy. Equitable
claims it was delivered on October 31, 1992, while Luntao maintains she

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delivered the policy, Luntao signed, but did not date, delivery receipts
and an Amendment to the Application which reflected a change in the
type of policy that issued. In addition, Luntao did not remove the pol-
icy from the folder. She merely put it away, without reading it or the
attached completed application form.

In October 1993, Luntao suffered neck and back injuries, and in
December 1994, applied for disability benefits. Equitable initially
approved the claim and began paying monthly benefits. Thereafter,
Equitable received Luntao's medical records, which revealed a his-
tory of neck and back injuries beginning in 1983. Upon reviewing
Luntao's medical history of back problems, which was not included
on her insurance application, Equitable determined that, if it had
known of Luntao's prior back injury, it would not have issued the pol-
icy. By letter dated September 7, 1994, Equitable rescinded the policy
on the ground that pertinent medical history was not disclosed on the
policy application.

Luntao filed suit in Maryland state court, seeking recovery of bene-
fits under her disability insurance policy. Equitable removed the case
to the United States District Court for the District of Maryland and
counterclaimed. After both parties filed motions for summary judg-
ment, the district court entered judgment in favor of Equitable, find-
ing that, even if the application form was blank at the time Luntao
signed it, she negligently failed to read the policy and notify Equitable
of any misrepresentations. Therefore, Luntao was an instrument of the
fraud against Equitable, and the policy was void and subject to rescis-
sion. This appeal followed.

II.

We review the district court's granting of summary judgment de
novo.5 Summary judgment is appropriate when "the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
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did not receive it until January 1993. This factual dispute is not material
to the disposition of this appeal.

5 See United States v. Leak, 123 F.3d 787, 791 (4th Cir. 1997).

                    4
any material fact and that the moving party is entitled to judgment as
a matter of law."6 The court must "view the facts and draw reasonable
inferences in a light most favorable to the nonmoving party."7 With
this in mind, we affirm the district court's determinations.

A.

First, Luntao contends that the district court erred in determining
that her failure to read the policy constituted negligence, and there-
fore, rendered her a participant in the fraud against Equitable. Luntao
argues that she took every reasonable action within her ability to dis-
close to Equitable the nature of the risk it was assuming. First, she
claims that she provided Pamulaklakin with accurate information
regarding her medical history. Second, she references her 1988 appli-
cation policy with Equitable, in which she fully disclosed her 1986
back problems. Third, she contends that she was tricked into signing
a blank application and was not provided with the policy until weeks
or months after meeting with Pamulaklakin. Finally, she argues that
the outcome of this case would be no different even if she had read
the policy because Equitable's policy instructions were to contact
Pamulaklakin, the same agent who committed the misrepresentation
in the first place. We disagree.

Maryland case law regarding misrepresentations of an insured's
health is clear and well-established. In Globe Reserve Mutual Life
Insurance v. Duffy,8 the Court of Appeals of Maryland held that:

          if false answers be written in the application by the agent
          with the knowledge of the assured, the latter becomes an
          accomplice, and both perpetrate a fraud upon the company.
          In such a case it is obvious that a recovery could not be per-
          mitted upon a policy thus procured; and so, where false
          answers have been written by the agent without the knowl-
          edge of the assured, but the latter has the means at hand to
          discover the falsehood and negligently omits to use them, he
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6 Fed. R. Civ. P. 56(c).
7 Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
8 25 A. 227 (Md. 1892).

                    5
          will be regarded as an instrument in the perpetration of the
          fraud, and no recovery could be had on the policy .9

More recently, in Serdenes v. Aetna Life Insurance Co.,10 the Court
of Special Appeals of Maryland stated that:

          [i]t is immaterial that it is the agent who inserts false state-
          ments about material matters in an application for insurance,
          because if the assured has the means to ascertain that the
          application contains false statements, he is charged with the
          misrepresentations just as if he had actual knowledge of
          them and was a participant therein.11

In the instant case, it is undisputed that Luntao's application for dis-
ability insurance contained material misrepresentations and that Equi-
table would not have issued the policy had it known of Luntao's
medical history.12 It is further uncontested that Luntao had the means
to discover the misrepresentations and failed to do so. As Luntao tes-
tified at her deposition, upon receiving the policy, she "just put it at
the side of the cupboard"13 and did not read it until after she injured
herself.

Not only did Luntao have the means to discover the misrepresenta-
tions, but she had an obligation to read the policy. When Luntao
received the policy, she signed a Delivery Receipt and an Amendment
to Application. Her signature was to indicate that she had read the
policy and that the statements and answers in the application were
true and complete. The face of the policy also stated, in bold capital
letters, that Luntao had ten days to examine the policy, during which
time she could void it.
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9 Globe Reserve Mut. Life Ins. v. Duffy, 25 A. 227, 228 (Md. 1892)
(emphasis added) (citations omitted).

10 319 A.2d 858 (Md. App. 1974).
11 Serdenes v. Aetna Life Ins. Co., 319 A.2d 858, 863 (Md. App. 1974)
(emphasis added) (citations omitted).
12 See J.A. at 581.

13 Id. at 437.

                    6
Luntao concedes that she has been unable to locate any decisions
from Maryland in which the courts expressly recognized that Duffy
was not controlling in all cases.14 Applying Duffy and Serdenes to the
facts in the instant case, we agree with the district court that Luntao's
failure to read the policy constituted negligence. Thus, the district
court correctly determined that the misrepresentation was properly
imputed to Luntao and that the insurance policy was never valid.

B.

Next, Luntao contends that, even if the district court correctly
determined that her failure to read the policy established her participa-
tion in the fraud, there was evidence that Equitable's reliance on the
misrepresentations was unjustified. First, Luntao claims that Equita-
ble negligently failed to examine her 1988 application, which con-
tained a complete disclosure of her back problems. Second, Luntao
argues that Equitable's reliance was unjustified because her 1992
application stated that she had received treatment from a Dr. Edward
Rankin ("Rankin"). Had Equitable consulted a physician directory,
Luntao contends it would have discovered that Rankin was an ortho-
paedist, and thus provided an indication of her previous back prob-
lems. Finally, Luntao claims that a jury could properly determine that
Equitable was aware of the misrepresentations because Pamulaklakin
had a history of falsifying applications. We disagree.

With regard to Luntao's first claim, "Maryland law imposes a
heavy burden on applicants to provide correct information on their
application. The duty to investigate . . . only exists in extraordinary
situations when the insurer is on notice that some type of investiga-
tion is necessary."15 There is nothing in Luntao's 1992 application
that would have given Equitable a reason to review her prior applica-
tion. That application stated that she was in "good health" and had
only consulted doctors in the previous five to seven years for routine
_________________________________________________________________
14 See Appellant's Br. at 31-34. Luntao cites several cases from outside
this circuit in which courts have adopted a more lenient posture regard-
ing misrepresentations of an insured's health. However, the law of Mary-
land is clear and applicable in this case.
15 Clemons v. American Cas. Co. , 841 F. Supp. 160, 167 (D. Md. 1993)
(internal citations omitted).

                    7
examinations. Equitable later verified this information in a telephone
call to Luntao. In addition, upon receiving the policy, Luntao signed
receipts and an Amendment to the Application indicating that the
information contained in her application was true and complete. Thus,
we do not believe that Equitable should have been on notice that an
investigation was necessary.

Second, Equitable presented evidence that its underwriting depart-
ment did not utilize, and did not have, a physician directory.16 Even
if the department did utilize such a directory, there was no indication
on Luntao's application that any of the doctors she listed were spe-
cialists, which might have raised a suspicion of health problems.

Finally, Luntao's accusation that Pamulaklakin had a history of fal-
sifying insurance applications is without merit. As the district court
stated,

          [a]ssuming arguendo that [Luntao] is accurate in her claim
          that Equitable eventually became aware of a scheme by Mr.
          Pamulaklakin to earn commissions by obtaining insurance
          for clients without regard to their medical history, there is
          no . . . evidence, that Equitable was aware of any such
          scheme prior to the issuance of the policy to [Luntao].17

Therefore, we decline to reverse the district court's determinations on
these grounds.

III.

Based upon the foregoing, we affirm the district court's order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.

AFFIRMED
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16 See J.A. at 183.

17 Id. at 579.

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