

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                    [NOT FOR PUBLICATION]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-
