10-909-cv
Lin v. Metropolitan Life Insurance Company

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with
this court, a party must cite either the Federal Appendix or an electronic database (with the
notation “summary order”). A party citing a summary order must serve a copy of it on any party
not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the
22nd day of February, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          DENNY CHIN,
                       Circuit Judges.


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JEAN LIN,

                               Plaintiff-Counter-Defendant-Appellant,

          v.                                                                                No. 10-909-cv

METROPOLITAN LIFE INSURANCE COMPANY,

                               Defendant-Counter-Claimant-Appellee.

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FOR PLAINTIFF-APPELLANT:                                                 ERIC DINNOCENZO, Trief & Olk, New York,
                                                                         NY.

FOR DEFENDANT-APPELLEE:                                                  TOMASITA L. SHERER, Metropolitan Life
                                                                         Insurance Company, New York, NY.


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     Appeal from a judgment of the United States District Court for the Southern District of
New York (Richard J. Holwell, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Jean Lin (“plaintiff” or “Mrs. Lin”) appeals from a March 30, 2009 order
of the District Court granting the motion for summary judgment of defendant-appellee
Metropolitan Life Insurance Company (“defendant” or “MetLife”). The action involves a life
insurance policy acquired by plaintiff’s late husband (“Mr. Lin”) which was contested by MetLife on
the grounds that Mr. Lin made a material misrepresentation in the insurance application, discovered
during the “contestability period.” Specifically, MetLife sought rescission of the policy based upon
the omission, from the original application, of the fact that plaintiff’s late husband had been
diagnosed and treated for hepatitis B. We assume the parties’ familiarity with the facts and
procedural history of this case.

        Both parties agree that California law applies. Plaintiff argues that (1) the District Court
misinterpreted the standard under California law for determining what constitutes a material
misrepresentation in an application for a life insurance policy; (2) the omission of Mr. Lin’s diagnosis
and treatment for hepatitis B should not have been considered material to the underwriting process;
and (3) there were plausible explanations for why hepatitis B was not listed by Mr. Lin on the
insurance application.

        We review an order granting summary judgment de novo, drawing all factual inferences in
favor of the non-moving party. See, e.g., Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.
2009). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c).

        In its careful and well-reasoned opinion of March 30, 2009, Memorandum Opinion and
Order, Lin v. Metropolitan Life Ins. Co., No. 07 Civ. 3218 (RJH), 2009 WL 806572 (S.D.N.Y. Mar. 30,
2009), the District Court explained why the omission of Mr. Lin’s hepatitis B diagnosis and
treatment was a material misrepresentation under California insurance law. For substantially the
reasons stated by the District Court, we affirm judgment disposing of all claims.




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                                   CONCLUSION

The judgment of the District Court as to all claims is AFFIRMED.



                                    FOR THE COURT,
                                    Catherine O’Hagan Wolfe, Clerk of Court




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