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Swihart v. Universal Underwriters Life Insurance Co.6/13/2003
ast 12 months. . . received medical advice of treatment. . . ." Murphy and Universal clearly relied on Mortensen's representations in extending coverage to him.
We therefore conclude the district court properly determined no genuine issue of material fact remains as to whether Mortensen's material misrepresentations justified Universal's rescission of the insurance contract. The district court correctly granted summary judgment on Swihart's claim, and we affirm it on this ground.
B. Incontestability Clause.
Swihart additionally argues a significant fact issue remains with regard to an "incontestability clause," which precludes summary judgment. The clause in question states " o statement made by you relating to your insurability will be used in contesting the validity of the insurance after this insurance has been in force prior to the contest for a period of two years during your lifetime." Although we question whether Swihart has preserved this contention for our review, we none the less find it to be without merit. The two-year incontestability period clearly had not run in this case and does not bar the defendants' defense based on Mortensen's misrepresentations. Hf. Freed v. Bankers Life Ins. Co. of Neb., 216N.W. 2d357, 359(Iowa 1974) (holding a one-year incontestability clause barred insurer from raising certain defenses).
C. Pre-existing Conditions Clause.
The insurance contract provides that "certain pre-existing conditions occurring with in six months of the effective date are not covered." Swihart contends this clause should not preclude coverage because, although Mortensen did have pre-existing heart and lung conditions, the liver condition from which he died was not pre-existing. Having concluded the district court did not err in determining Universal properly rescinded the insurance contract, we find this issue to be without merit.
IV. Conclusion.
We have considered all issues, whether specifically addressed or not, and find them to be without merit. We therefore affirm the ruling granting summary judgment.
AFFIRMED.
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