Massachusetts Mutual Life Insurance Company v. Martin A. Fraidowitz

United States Court of Appeals
For the First Circuit
No. 05-1578
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
Plaintiff, Appellee,
v.
MARTIN A. FRAIDOWITZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Lipez, and Howard, Circuit Judges.
Joel M. Sowalsky with whom Smith, Segel & Sowalsky was on
brief, for appellant.
Edward J. McDonough, Jr., with whom David G. Cohen,
Katherine A. Day, and Egan, Flanagan and Cohen, P.C. were on
brief, for appellee.
April 4, 2006

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HOWARD, Circuit Judge. This is an appeal from a summary
judgment ruling holding that Massachusetts Mutual Life Insurance
Company (Mass. Mutual) is not required to pay benefits to Martin
Fraidowitz for additional disability coverage that Fraidowitz
purchased pursuant to the terms of a pre-existing disability
policy. The district court concluded that Fraidowitz made a
misrepresentation in applying for the additional coverage which
disqualified him from collecting the additional benefits. We
affirm.
Fraidowitz is an insurance agent who purchased a
disability insurance policy from Mass. Mutual in 1986. The policy
provided for income replacement of $3,350 per month if Fraidowitz
became "unable to perform the main duties of [his] occupation" due
to a medical condition. The policy also provided Fraidowitz with
the opportunity to purchase increased benefits each year during a
sixty-day option period around the anniversary date of the policy.
This increased-benefits option, however, was subject to the
qualification that "if [Fraidowitz were] disabled during any option
period [then the] option to buy additional benefits [would be]
postponed until the option period following [his] recovery."
Fraidowitz timely paid the premiums due on the policy.
In August 1999, Fraidowitz began experiencing symptoms of
depression. In January 2000, he sought treatment from psychiatrist
Robert Swords and psychotherapist Duane Daguio at the Institute of

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Living Medical Group in Hartford, Connecticut. A month later,
Fraidowitz filed a disability claim under the policy. Fraidowitz
provided Mass. Mutual with the required forms and granted Mass.
Mutual permission to discuss his condition with his mental health
providers.
In investigating Fraidowitz's claim on behalf of Mass.
Mutual, psychologist Robert Dean spoke with Daguio and Swords.
Daguio said that "he [did] not think that Mr. Fraidowitz was
totally disabled;" but rather that "he does not want to work and
would prefer to collect money." Swords indicated that he thought
that Fraidowitz was "probably trying to use [him] to get a
disability." He further stated that Fraidowitz was probably a
"faker" and that he did not see any signs of an impairment that
would keep Fraidowitz from working. In light of this information,
Mass. Mutual denied Fraidowitz's disability claim in May 2000.
Thereafter, Fraidowitz retained counsel to challenge the denial.
In July 2000, Fraidowitz sought to purchase additional
coverage during the option period while continuing to challenge the
denial of his disability claim. These dual goals complicated
Fraidowitz's ability to apply for additional coverage because the
application asked whether Fraidowitz was "currently disabled." If
Fraidowitz answered that he was currently disabled, then he would
not be permitted to purchase additional coverage until some time
after the disability abated. But if he answered that he was not

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disabled, then Mass. Mutual could try to use this statement as an
admission against him in a contest over his disability claim.
Appreciating this difficulty, Fraidowitz, through
counsel, contacted Mass. Mutual for guidance on how he should
answer the "currently disabled" question. Mass. Mutual responded
that he "should complete the form as accurately and honestly as
possible." Armed with this advice, Fraidowitz indicated that he
was not disabled but also that his "answer was per the denial" of
his claim by Mass. Mutual and that his answer should not be
construed to prejudice his right to contest further the denial of
his claim. After Fraidowitz submitted the additional coverage
application, he received a detailed letter from Mass. Mutual
explaining that it had denied his disability claim because the
information obtained from his mental health providers failed to
support the claim.
In August 2000, Mass. Mutual granted Fraidowitz's request
for additional coverage, increasing his monthly benefit to $6,700.
The next month, Fraidowitz paid an added premium for the additional
coverage, which Mass. Mutual accepted.
In October 2000, Swords and Daugio wrote to Mass. Mutual
to "clarify and supplement" their earlier comments concerning
Fraidowitz's disability claim. They explained that Fraidowitz
actually had been "clinically depressed" since February 3, 2000,
and that, in their "medical opinion," Fraidowitz was "unable to

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perform any regular duties of his occupation . . . not as a matter
of his personal choice, but [because of his] his psychiatric
condition."
In light of this reversal, Mass. Mutual reopened
Fraidowitz's disability claim and allowed the claim retroactively
to February 3, 2000. Mass. Mutual promptly informed Fraidowitz
that it would pay him benefits of $3,350 per month. Fraidowitz
complained, however, that he was entitled to benefits of $6,700
from July 2000 forward because he had purchased additional
coverage. Mass. Mutual disagreed because, in its view, Fraidowitz
had falsely stated on the additional coverage application that he
was not disabled.
Subsequently, Mass. Mutual brought an action in
Massachusetts Superior Court for a declaratory judgment that it was
not required to pay Fraidowitz additional benefits. Fraidowitz
removed the action to federal court. After discovery, the district
court allowed Mass. Mutual's motion for summary judgment. See
Mass. Mut. Life Ins. Co. v. Fraidowitz, 360 F. Supp. 2d 243 (D.
Mass. 2005). The court applied Mass. Gen. Laws ch. 175, § 186,
which permits an insurer to avoid paying on a policy which has been
obtained through a false warranty that was "made with actual intent
to deceive, or . . . increased the risk of loss" to the insurer.
Id. at 246. It concluded that Fraidowitz had violated Mass. Gen.
Laws ch. 175, § 186 because his assertion that he was not disabled

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Fraidowitz also contends that the district court erred in 1
denying his motion to strike certain materials from the summary
judgment record. Because we do not rely on these materials in
resolving this appeal, we do not address this argument.
Fraidowitz suggests that Connecticut law should apply to this 2
dispute and that an incontestability clause in the disability
policy defeats Mass Mutual's claim. Neither of these arguments was
raised before the district court and neither convinces us that
plain error has occurred, so we will not consider them. See
Guzman-Rosario, 397 F.3d at 11; see also Smith v. KMart Corp., 177
F.3d 19, 25-26 (1st Cir. 1999) (stating that plain error is a "rare
species in civil litigation").
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was false, and Mass. Mutual relied on this misrepresentation to
grant Fraidowitz additional coverage. Id. at 247. Fraidowitz
timely appealed.
We review summary judgment rulings de novo. See Guzman-
Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 9 (1st Cir.
2005). Summary judgment is appropriate where there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. civ. P. 56©). We may affirm
summary judgment on any ground supported by the record. See
Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir. 2003).
Fraidowitz contends that there is a material dispute of
fact as to whether he made a misrepresentation in stating that he
was not disabled, given that he disclosed that his answer was based
on Mass. Mutual's rejection of his claim. Given the completeness 1
of Fraidowitz's answer, it is not obvious that this was a
misrepresentation with the meaning of Mass. Gen. Laws ch. 175, §
186. Nevertheless, we believe that summary judgment was 2

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appropriately granted because Fraidowitz failed to meet a condition
precedent for obtaining additional disability coverage: the
condition of not being disabled when applying for the additional
coverage.
A statement required by an insured in applying for
insurance may either be a warranty, or it may establish a condition
precedent. See Kobico, Inc. v. Pipe, 688 N.E.2d 1004, 1006 (Mass.
App. Ct. 1997). To void a policy based on the insured making a
false warranty, Massachusetts requires proof of an actual intent to
deceive by the insured or of an increased risk of loss to the
insurer. Mass. Gen. Laws ch. 175, § 186. This rule does not apply
to conditions precedent. See Shaw v. Commercial Ins. Co. of N.J.,
270 N.E.2d 817, 821 (Mass. 1971); see also Gen. Star Indemnity Co.
v. Duffy, 191 F.3d 55, 60 n.2 (1st Cir. 1999). If an insured fails
to satisfy a condition precedent, the coverage is void regardless
of whether there was proof of an intent to deceive or an increased
risk of loss. See Krause v. Equitable Life Ins. co., 129 N.E.2d
617, 619 (Mass. 1955) (stating that if "conditions . . . were not
satisfied no contractual duty under the policy ever arose").
Distinguishing a warranty from a condition precedent
presents a question of law. See Kobico, 688 N.E.2d at 1007; see
also Drake Fishing, Inc. v. Clarendon Am. Ins. Co., 136 F.3d 851,
853 (1st Cir. 1998). Under Massachusetts law, a statement required
of the insured is a condition precedent to obtaining coverage only

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if (1) the statement relates "essentially to the insurer's
intelligent decision to issue" the coverage, and (2) the statement
is "made a condition precedent to recovery under the policy, either
by using the precise words 'condition precedent' or their
equivalent[.]" Charles, Henry & Crowley Co. v. Homes Ins. Co., 212
N.E.2d 240, 242 (Mass. 1965). The requirement that Fraidowitz must
not be disabled to obtain additional coverage satisfies both parts
of the condition-precedent standard.
There is no question that Fraidowitz not being disabled
was essential to Mass. Mutual's "intelligent decision" to issue him
additional coverage. As Fraidowitz acknowledges, Mass. Mutual
would not have issued the coverage had he stated that he was
disabled. Thus, his answer was critical to Mass. Mutual's decision
to issue coverage. See id. (stating that the first aspect of the
condition precedent test is met where the statement concerns "a
fundamental fact" which the insurer considers in deciding to issue
the policy); Paratore v. John Hancock Mut. Life Ins. Co., 141
N.E.2d 511, 513 (Mass. 1957) (stating that a requirement in a life
insurance policy "that an insured is in sound health at the date
of the policy is clearly a proper subject of a condition precedent"
because such information is important to the insurer's decision to
issue the policy).
While the policy does not use the words "condition
precedent" to describe the no-disability requirement, Massachusetts

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law imposes no magic words requirement. See Kobico, 688 N.E.2d at
1007 (collecting Massachusetts cases in which courts have found a
condition precedent, even though the policy did not use the term
"condition precedent"). For example, the Supreme Judicial Court
has held that a provision in a life insurance policy stating that
the policy "shall be void" if the insured had been hospitalized for
treatment of a serious disease within two years of the issuing date
of the policy constituted a condition precedent. Lopardi v. John
Hancock Mut. Life Ins. Co., 194 N.E. 706, 707 (Mass. 1935). This
was so because the "natural meaning" of the phrase "shall be void"
made the coverage contingent on the insured meeting the no-
hospitalization requirement. Id. at 708; see also Paratore, 141
N.E.2d at 513 (concluding that a similar clause created a condition
precedent).
Fraidowitz's policy is similar to those at issue in
Lopardi and Paratore. The policy states that if Fraidowitz were
disabled, then the period for purchasing additional coverage would
be "postponed" until the disability abated. In other words,
Fraidowitz's option to buy additional coverage was "void" whenever
he was disabled. Lopardi, 194 N.E. at 707; see also Paratore, 141
N.E.2d at 513. The "natural meaning" of the postponement clause
was to make Fraidowitz's ability to buy additional coverage
conditional on his not being disabled. Lopardi, 194 N.E.2d at 708.

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Fraidowitz did not satisfy this condition. When applying
for additional coverage in July 2000, Fraidowitz stated that he was
not disabled based on Mass. Mutual's denial of his claim. But,
because of information subsequently submitted by Fraidowitz's
mental health providers, Mass. Mutual declared him disabled
retroactive to February 3, 2000. Thus, in July 2000, Fraidowitz
both saw himself as disabled and was in fact disabled, making his
option to buy additional coverage ineffective.
This conclusion has nothing to do with Fraidowitz's
veracity in completing the additional-coverage application. As far
as we can tell, Fraidowitz completed the application truthfully
based on the information available to him at the time. But
Fraidowitz's representation was wrong. See Krause, 129 N.E.2d at
618-19 (concluding that an insurance policy was ineffective where
events occurring after the coverage application was submitted
caused the insured to fail to meet a condition precedent). Because
Fraidowitz did not satisfy the condition of not being disabled when
purchasing additional coverage, Mass. Mutual had no obligation to
pay him the additional benefits.
Fraidowitz has a final argument. He contends that there
is a material dispute concerning whether Mass. Mutual waived its
right to enforce the condition precedent because it had all the

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Fraidowitz refers to this argument as a claim for estoppel. 3
But estoppel requires a showing of reliance by the insured. See
Rotundi v. Arbella Mut. Ins. Co., 763 N.E.2d 563, 564-65 (Mass App.
Ct. 2002). As Fraidowitz has not attempted to make such a showing,
we assume that he intended to argue waiver and not estoppel.
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information necessary to know that he was disabled when it decided
to issue the additional coverage. We disagree. 3
We question whether waiver could even apply under
Massachusetts law where the insured has failed to meet a condition
precedent. See Kukuruza v. John Hancock Mut. Life Ins. Co., 176
N.E. 788, 791 (Mass. 1931) (stating that the insurer's "knowledge
of the falsity of the statements in the application for
reinstatement would not establish waiver . . . of the express
condition upon which the policy was reinstated . . ."). But
assuming arguendo that waiver is a viable theory, it does not apply
here.
For waiver to apply, there must be some evidence that
Mass. Mutual knew that Fraidowitz was disabled when it issued him
the additional coverage. See Gen. Star Indemnity, 191 F.3d at 59.
Before October 2000, Mass. Mutual believed that Fraidowitz's mental
health providers did not fully support his disability claim. While
the physician who supervised Fraidowitz's care sent Mass. Mutual a
letter stating that Fraidowitz was unable to do his job, he also
told Mass. Mutual in a subsequent phone conversation, that he
thought Fraidowitz might be exaggerating his symptoms. The doctor
later clarified that Fraidowitz was disabled only per his own "self

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report." Mass. Mutual was entitled to rely on these
communications. Only in October did Fraidowitz's doctors rescind
their earlier skepticism and fully support his claim. We think
that before then Mass. Mutual lacked sufficient knowledge of
Fraidowitz's condition for the waiver doctrine to apply.
Affirmed.

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