                      REVISED - February 26, 1999

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                       __________________________

                              No. 97-60846
                       __________________________


RACHEL B. CARROLL; CYNTHIA B. FASANO
                        Plaintiffs-Counter Defendants-Appellants,

                                   versus

METROPOLITAN INSURANCE AND ANNUITY CO
                             Defendant-Counter Claimant-Appellee.

        ___________________________________________________

            Appeal from the United States District Court
              for the Southern District of Mississippi
        ___________________________________________________

                              February 15, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

      Plaintiffs-Counter Defendants-Appellants, Rachel B. Carroll

and   Cynthia   B.   Fasano   (“Beneficiaries”),   appeal   the   district

court’s grant of summary judgment in favor of Defendant-Counter

Claimant-Appellee, Metropolitan Insurance and Annuity Co. (“MIAC”).

The court denied the Beneficiaries’ claims under a $500,000 life

insurance policy, reasoning that the insured, Ray T. Bracken, had

made material misrepresentations in his application for insurance.

The district court concluded that, as a matter of law, (1) Bracken

misrepresented his medical condition on his insurance application

by omitting prior diagnoses and treatments for skin cancer, (2)

MIAC was never put on notice of Bracken’s skin cancer history, such

that it would be precluded from rescinding the policy on the basis
of    Bracken’s     failure    to   disclose    that   history,    and   (3)   the

misrepresentation was material to the risk assumed by MIAC, such

that MIAC would have either declined to issue the policy or would

have issued the policy only at an increased premium.                  Perceiving

the     existence    of   genuine     factual    disputes      surrounding     the

materiality of the information that Bracken omitted from his

application —— specifically, the question whether MIAC, with full

knowledge of Bracken’s skin cancer history, would have issued the

policy without increasing the premium —— we reverse the district

court’s grant of summary judgment and remand the case for trial.

                                        I.

                              FACTS AND PROCEEDINGS

       Early in 1993, Bracken contacted an insurance agent-broker to

assist him in securing life insurance coverage.                As Bracken had an

extensive history of medical problems, including a young-age heart

attack, quadruple bypass surgery, hypertension, renal failure, and

gout, he had difficulty obtaining coverage.               Bracken’s insurance

agent    contacted     Leibovitz     Associates,       Inc.,   a   company     that

specializes in locating carriers for substandard cases such as

Bracken’s.     Through Leibovitz, Bracken sent inquiries to several

potential insurance carriers, one of which —— MIAC —— responded,

inviting him to submit a formal application for insurance.                   Toward

that end, Bracken met with the insurance agent who reviewed with

Bracken the questions posed on MIAC’s application form and recorded

Bracken’s responses.          The following questions and answers appeared

on Bracken’s application:


                                        2
     Part A, Section II, Question 29(c)

     Have you received treatment, attention, or advice from
     any physician, practitioner or health facility for, or
     had any known indication of: (c) cancer, tumor or polyp?
          Answer: No.

     Part A, Section II, Question 29(g)

     Have you received treatment, attention, or advice from
     any physician, practitioner or health facility for, or
     had any known indication of: (g) any other impairment of
     health, hospitalization, surgery, x-ray, EKG or special
     tests within the past 5 years, or contemplated in the
     future?
          Answer: No.

     Part A, Section II, Question 30

     In the last 5 years, have you ever been treated,
     examined, or advised by any physician, licensed
     practitioner, or health facility? (Do not include colds,
     minor viruses or injuries which prevented normal
     activities for less than 5 days).
          Answer: No.

At the end of the application, Bracken signed an attestation that

all answers were true and complete to the best of his knowledge.

The application was then sent to MIAC.

     On receipt of the application, MIAC sought to obtain medical

records from physicians identified in the application. The medical

records of Charles McCollum, M.D., Bracken’s personal physician for

over twenty years, reflected —— among other things ——   that Bracken

had no abnormality of the skin.   In a written report in January of

1993, Dr. McCollum had indicated that he was aware of nothing

concerning Bracken’s health “which might unfavorably affect [his]

insurability.”

     MIAC required Bracken to be examined by Arthur Jones, M.D., a

physician retained by MIAC.       The results of this examination


                                  3
disclosed a skin abnormality known as keratosis,1 but gave no

indication that Bracken had ever been positively diagnosed with

skin cancer.2    Finally, MIAC obtained a report from Equifax, Inc.,

an independent reporting company that gathers medical information

on prospective insureds, which report contained no additional

facts.

      Based on the answers contained in Bracken’s application, in

the subsequent physical examination, and in the medical records

check that it conducted, MIAC issued Bracken a $500,000 policy at

an annual premium of $16,000.      Following his death by heart attack

not   quite     two   years   later,       MIAC   performed   a   post-claim

investigation of Bracken’s medical history, which revealed that

Bracken had an extensive history of skin cancer prior to applying

for MIAC coverage.3     MIAC learned that Bracken had been diagnosed

and treated for basal cell and squamous cell carcinomas during


         1
       According to the opinions of both the Beneficiaries and
MIAC’s experts, keratosis is a premalignant, superficial lesion on
the skin that is common in older persons.
         2
        During the medical examination, Bracken was required to
answer additional questions concerning his medical history, some of
which mirrored the questions on the written application. Bracken
was asked if he ever received treatment, attention, or advice for
cancer, tumor, or polyp, to which he responded no. He was also
asked if he had ever undergone a surgical operation that he did not
reveal in the written application, or visited a hospital, clinic,
dispensary or sanatorium for observation, examination, or treatment
that he did not reveal in the written application, to which he
responded yes. In the “provide details” section below, Bracken
only mentioned a repaired hernia in 1985. Bracken again signed an
attestation statement.
         3
       Had Bracken died more than 2 years after the policy was
issued, it would have been incontestable, and this litigation
probably would not have occurred.

                                       4
1991, 1992, and 1993, during which time approximately eleven

biopsies had been performed.           In fact, MIAC learned that in May of

1993, one month before Bracken applied to MIAC for coverage, a

biopsy had been performed by William Burrow, M.D., Bracken’s

dermatologist, which revealed an invasive squamous cell carcinoma.

Armed with this information, MIAC denied the Beneficiaries’ claim

for payment under the policy and rescinded the policy, maintaining

that     in    his        application,         Bracken    had       made   material

misrepresentations         regarding       his     several   diagnoses     of     and

treatments for       skin cancers.

       The    Beneficiaries      brought          suit    seeking     $500,000     in

compensatory damages and $10,000,000 in punitive damages for MIAC’s

alleged bad faith failure to pay them the policy benefits.                       MIAC

responded by filing a counterclaim for rescission of the policy and

interpleading all premiums that Bracken had paid on the policy.

MIAC then filed a motion for summary judgment, advancing that, as

a   matter    of   law,    Bracken   had       made   misrepresentations    on    his

application for life insurance that were material to the risk

assumed by MIAC in underwriting his policy.                  The district court

granted the motion, finding that no genuine issue of material fact

existed to sustain the Beneficiaries’ claims and dismissing their

suit with prejudice.         The Beneficiaries timely filed this appeal.

       On appeal, the Beneficiaries submit that the district court

erred when it decided conflicting factual questions and drew

inferences in favor of the moving party, MIAC, urging that such

error mandates reversal of the summary judgment. Specifically, the


                                           5
Beneficiaries contend that there are genuine factual disputes as to

(1) whether Bracken misrepresented his medical history on his life

insurance application, (2) whether, even if Bracken misrepresented

his condition on the application, MIAC had notice of Bracken’s skin

cancer, and (3) whether Bracken’s undisclosed history of skin

cancer was material, i.e. whether MIAC would have denied Bracken

insurance, or issued it only for an increased premium if that

history had been disclosed on the application.    When we view the

Beneficiaries’ position in the light most favorable to them, we

discern summary judgment evidence supporting their position that

Bracken’s undisclosed history of skin cancer was immaterial to the

risk assumed by MIAC in underwriting the policy sufficient to

establish the existence of a genuine dispute of material fact.   We

hold, therefore, that summary judgment was inappropriate.4

                               II.

                             ANALYSIS

A.   Standard of Review

     We review a grant of summary judgment de novo, applying the

same standard as the district court.5   In examining the record, we


     4
      We recognize that the Beneficiaries have presented evidence
both to refute MIAC’s claim that Bracken misrepresented his medical
history on the application and to demonstrate that MIAC had notice
of Bracken’s condition.    As we conclude that there are genuine
issues of fact surrounding the materiality of Bracken’s undisclosed
condition sufficient to send the entire case to a finder of fact,
we do not express any opinion on the merits of the issues of
misrepresentation and notice.
         5
       Odom v. Frank, 3 F.3d 839, 843 (5th Cir. 1993); Southern
Pacific Transp. Co. v. Chabert, 973 F.2d 441, 444 (5th Cir. 1992),
cert. denied, 507 U.S. 987 (1993).

                                6
resolve all reasonable doubts and draw all reasonable inferences in

favor of the non-moving party, the Beneficiaries in this case.6   If

we conclude that they have presented specific, probative facts in

support of allegations essential to their claim, a genuine issue of

material fact exists and summary judgment is not appropriate.7

Neither we nor the district court should weigh the evidence or make

credibility determinations when evaluating depositions, affidavits,

or other summary judgment evidence.8

B.   Applicable Law

     Under Mississippi law, if an applicant for insurance is found

to have made a misstatement of material fact in the application,

the insurer that issued a policy based on the false application is

entitled to void or rescind the policy.9 To establish that, as a

matter of law, a material misrepresentation has been made in an

insurance application, (1) it must contain answers that are false,

incomplete, or misleading, and (2) the false, incomplete, or

     6
      FED. R. CIV. P. 56(c); Brothers v. Klevenhagen, 28 F.3d 452,
455 (5th Cir.), cert. denied, 513 U.S. 1045 (1994); FDIC v.
Hamilton, 939 F.2d 1225, 1227 (5th Cir. 1991).
         7
      Brothers, 28 F.3d at 455; Suggs v. Pan American Life Ins.
Co., 847 F. Supp. 1324, 1329 (S.D. Miss. 1994) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986)).
         8
      Richardson v. Oldham, 12 F.3d 1373, 1379 (5th Cir. 1994);
Berry v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993),
cert. denied, 510 U.S. 1117 (1994).
     9
      Prudential Ins. Co. v. Russell, 274 So. 2d 113, 116 (Miss.
1973); Coffey v. Standard Life Ins. Co., 120 So. 2d 143, 149 (Miss.
1960); Wesley v. Union Nat’l Life, 919 F. Supp. 232, 234 (S.D.
Miss. 1995); Pedersen v. Chrysler Life Ins. Co., 677 F. Supp. 472,
474 (N.D. Miss. 1988); Dukes v. South Carolina Ins. Co., 590 F.
Supp. 1166, 1168-69 (S.D. Miss. 1984), aff’d, 770 F.2d 545 (5th
Cir. 1985).

                                7
misleading answers must be material to the risk insured against or

contemplated by the policy.10                     The party seeking to void the

insurance contract —— here, MIAC —— must establish the existence of

a factual misrepresentation and its materiality by clear and

convincing        evidence.11          Whether       the    misrepresentation       was

intentional, negligent, or the result of mistake or oversight is of

no consequence.12

       A misrepresentation in an insurance application is material if

knowledge of the true facts would have influenced a prudent insurer

in determining whether to accept the risk.13                   Stated differently,

a fact is material if it might have led a prudent insurer to

decline the risk, accept the risk only for an increased premium, or

otherwise        refuse   to   issue    the       exact   policy   requested   by   the

applicant.14        In making these kinds of underwriting decisions,

insurers have the right to rely on the information supplied in the

application.15        Even if a misrepresentation exists, however, an

       10
        MISS. CODE ANN. § 83-9-11(3) (1998); Prudential, 274 So. 2d at
116.
       11
            Pederson, 677 F. Supp. at 474.
            12
       Prudential, 274 So. 2d at 116; see also Pederson, 677 F.
Supp. at 475 (noting that an insurer is not required to show the
insured’s intent to deceive in order to void a policy based on
misrepresentations); Dukes, 590 F. Supp. at 1168-70 (noting that it
is irrelevant that the insured does not know of the falsity of his
statements in the application).
       13
      Massachusetts Mut. Life Ins. Co. v. Nicholson, 775 F. Supp.
954, 959 (N.D. Miss. 1991).
       14
            Nicholson, 775 F. Supp. at 959.
       15
      Id.; Mattox v. Western Fidelity Ins. Co., 694 F. Supp. 210,
216 (N.D. Miss. 1988).

                                              8
insurance company cannot rely on it to rescind the policy if facts

were known that would cause a prudent insurer “to start an inquiry,

which, if carried out with reasonable thoroughness, would reveal

the truth.”16

C.   Materiality

     The Beneficiaries argue that, assuming without admitting that

Bracken did misrepresent his medical history on the application,

such a misrepresentation was not material to the risk assumed by

MIAC. The Beneficiaries insist that in light of Bracken’s numerous

and significantly more severe medical ailments that were disclosed

—— heart attack, bypass surgery, aneurysm, hypertension, renal

failure, and gout —— the presence of non-melanoma skin cancer would

not have affected either his insurability vel non or the premium

MIAC charged for the policy.           In other words, because MIAC was

willing to underwrite Bracken with full knowledge of his serious,

life-threatening medical conditions, contend the Beneficiaries,

MIAC would not have declined the application or required a greater

premium on the basis of his history of non-life-threatening skin

cancers,     each   of   which   had   been   completely   removed   without

reoccurrence or metastasis as of the times of Bracken’s application

and MIAC’s issuance of the policy.

     The district court agreed that a genuine factual dispute may

exist as to whether MIAC would have declined to cover Bracken had

it known of his skin cancer history, but the court ultimately

deemed this dispute inconsequential.            Instead, it    stated that

     16
          Nicholson, 775 F. Supp. at 959 n.13.

                                       9
“there is significant unrefuted evidence that even had MIAC issued

the policy, it would have charged a higher premium for the coverage

had it known of this aspect [skin cancer] of Bracken’s medical

history.”17      It is this purportedly undisputed “finding” —— that

MIAC would have increased Bracken’s premium had it known of his

prior treatment for skin cancer —— with which we disagree.

      The     Beneficiaries     presented       probative,   summary    judgment

evidence of contrary facts to demonstrate that MIAC, even with full

knowledge of Bracken’s history of skin cancer, might well have

issued the policy without increasing the premium.                According to

MIAC’s Underwriting Guide, applicants who have been diagnosed with

“malignant neoplasms” (such as the non-melanoma basal cell and

squamous cell carcinomas removed from Bracken), which do not exceed

2 centimeters and which have not metastasized, receive a medical

rating of “+0" —— a rating that produces no additional premium.

The Underwriting Guide specifies, however, that if the non-melanoma

skin cancer exceeds 2 centimeters, the application must be denied

or assigned an extra premium of $7.50 per $1000 of insurance for a

four year period if the tumor had been present “0 to 1 year ago.”

      In support of its motion for summary judgment, MIAC produced

the    pathology      report     of     Billy     Walker,    M.D.,     Bracken’s

dermapathologist,      who     tested   a    tissue   specimen   from    Bracken

measuring “5.6 cm in length and 1.8 cm in greatest width” less than

one year before Bracken’s application.             MIAC contends that, based

on the size of this tissue specimen (not, we note, the size of the

      17
           Emphasis added.

                                        10
lesion), Bracken’s policy, if not declined outright, would have

incurred an increased premium of $3500 for each of the first four

years of the policy.         MIAC substantiated its position with the

testimony of Charles Jones, M.D., MIAC’s Vice President of Medical

Services,    and    George   McCarthy,        the   underwriter     on    Bracken’s

application, both of whom maintained that if Bracken had disclosed

his prior skin cancers during the underwriting process, the company

would have, at the very least, postponed issuance of the policy

until Bracken provided proof that he was cured.                    As this proof

would never have been forthcoming because Bracken’s cancer had

metastasized into his lymph nodes by September of 1993, claims

MIAC, coverage would have been declined.18

     The     Beneficiaries,        however,         presented     particularized,

probative evidence to the contrary —— evidence that apparently was

disregarded by the district court —— which we conclude raises a

genuine    issue    of   fact.     Our    conclusion     is     bolstered   by   the

knowledge    that    MIAC,   not    the       Beneficiaries,      must    meet   the

heightened clear and convincing burden of proof.                         First, the

Beneficiaries presented the affidavit of Bracken’s dermatologist,


    18
      Bracken’s application for insurance was underwritten by MIAC
in June and July of 1993 and was ultimately issued in August of
1993.   Bracken was diagnosed with cancer in his lymph nodes on
September 27, 1993, after the physical examination and medical
checks had been completed.     Both parties dispute whether the
presence of cancer contributed to Bracken’s death.           These
arguments, however, do not affect the materiality issue because
“there is no requirement under Mississippi law that the actual
cause of death be related to risks concealed by an insurance
applicant in order for the concealed facts to be material.”
Wesley, 919 F. Supp. at 234 (citing Golden Rule Ins. Co. v.
Hopkins, 788 F. Supp. 295, 303 (S.D. Miss. 1991)).

                                         11
Dr. Burrow, who stated that he had never removed a lesion larger

than   2    centimeters     from   Bracken’s        skin.    According    to   this

testimony and the unambiguous language in the Underwriting Guide,

Bracken clearly would not have received an increase in premium

based on the smaller size tumor.19            To buttress their position, the

Beneficiaries point out that even though Dr. Walker’s pathology

report indicated that he had tested a tissue specimen in excess of

5 centimeters, he clarified this point in later testimony to the

effect that the size of the specimen “should not be interpreted to

mean the tumor was that size inasmuch as physicians often remove a

great deal more tissue than tumor to make certain the entire tumor

is removed, and for cosmetic purposes.”                At the summary judgment

stage,      neither   we   nor   the    district     court   can   reconcile   the

differences between Dr. Walker’s pathology report and Dr. Burrow’s

testimony, or ascertain whether the size of the tumor was greater

than   5    centimeters     or   less    than   2    centimeters.       And,   this

determination is critical when calculating a premium increase, if

any,   in    Bracken’s     policy.       We   therefore      conclude   that   this


       19
       This conclusion was confirmed by the Beneficiaries’ expert
underwriter, Waldemar Luehlfing, who ventured that “MetLife would
not have increased Mr. Bracken’s premium or changed his rating
according to MetLife’s Medical Underwriting Guide.” The district
court disregarded Luehlfing’s affidavit because it believed his
testimony was contrary to his opinion made in deposition.
Luehlfing, however, stated in his deposition that he had been
unaware of MIAC’s underwriting guidelines at that time and thus was
unable to make a determination of an applicant’s premium; but that
he was able to express his opinion in the affidavit after being
aware of those guidelines. We do not perceive these statements as
being inconsistent or self-contradictory and therefore consider the
affidavit to be probative evidence at the summary judgment stage of
these proceedings.

                                         12
conflicting —— or at least ambiguous —— testimony raises issues of

material fact, which must be resolved by a trier of fact, as to the

actual size of the tumor and the resulting effect that this would

have had on Bracken’s premium.

       The Beneficiaries have also highlighted the testimony of

MIAC’s Vice President of Medical Services and designated corporate

representative, Dr. Jones, who stated that MIAC would assess “no

rating” —— and therefore no premium increase —— because of squamous

cell    or   basal    cell    carcinomas       that    are   removed    without

complications and result in the patient’s being “cured” of that

particular skin cancer.        He further indicated in a letter to a

claims reference advisor that because Bracken was not advised to

seek additional medical attention after his skin lesions were

removed, Bracken justifiably presumed that he was cured.20                These

statements, claim the Beneficiaries, are in direct contradiction to

the size requirements in the Underwriting Guide and indicate that,

notwithstanding      the   words   of   the    guidelines,     MIAC    does   not

automatically increase premiums for non-life-threatening, cured

skin cancers.    The Beneficiaries note that had MIAC contacted Dr.

Burrow between June and August of 1993, when Bracken’s application

was submitted, considered, and ultimately accepted, he would have

confirmed     that   Bracken’s     last       lesion   was   removed    without

complications, and that he considered Bracken cured of that cancer.

This, the Beneficiaries submit, would have provided the proof


        20
           Bracken’s lack of intentional deceit is not a defense,
however.     See supra n. 12 and accompanying text.

                                        13
necessary to proceed with policy issuance. Accordingly, MIAC might

well have     proceeded     to   issue   the   policy     without   any    premium

adjustment.

      Despite Dr. Jones’s credentials and his designation by MIAC as

its corporate witness, the district court discounted his testimony.

The court reasoned that Dr. Jones was not necessarily familiar with

all of the factors considered in the underwriting process and, when

he   stated     that   Bracken    believed     he   was    cured,   made       legal

conclusions that the witness was never qualified to make.                        We

disagree.     At a minimum, this testimony ellicits the presence of

arguable factual contradictions that must be resolved by a fact

finder, an exercise proscribed at the summary judgment stage of the

case.     Dr.      Jones   was   designated    by   MIAC    as   its   corporate

representative to give deposition testimony concerning underwriting

issues.   Even though this was summary judgment evidence, which is

not to be weighed or tested for credibility, the district court

proceeded     to    trivialize     Dr.    Jones’s    comprehension        of    the

underwriting process, which MIAC had designated him to present. If

the weight of the testimony of such a witness is to be discounted,

though, it must be done by a finder of fact in a full-blown trial.

                                      III.

                                   CONCLUSION

      The Beneficiaries have adduced specific, probative facts to

support their side of the argument whether knowledge of Bracken’s

history of non-melanoma skin cancer was material to the risk MIAC

assumed when it chose to issue Bracken insurance without further


                                         14
premium increase.    For example, the actual sizes of the tumors

removed from Bracken’s skin are not only unclear, but one of MIAC’s

own representatives has stated —— on more than one occasion —— that

if the lesion in fact had been removed without complications,

Bracken’s policy would have been approved and issued as it was, and

for the same premium.     As our summary judgment practice mandates,

neither we   nor   the   district   court   should   purport   to   resolve

disputes of this nature at this stage of the litigation; findings

involving material facts genuinely in dispute are reserved to the

finder of fact, whether judge or jury, at the trial stage of such

proceedings. Accordingly, we reverse the district court’s grant of

summary judgment in favor of MIAC and remand for trial.

REVERSED and REMANDED.




                                    15
