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Colina wins appeal in life insurance dispute

A Supreme Court justice who awarded a widower a $150,000 insurance payout was so “plainly wrong” in his assessment of the evidence and issues at trial that the Court of Appeal found that it was “left with no alternative but to intervene”.

The Court of Appeal set aside the April 2015 decision of then acting Supreme Court Justice Philip C. Dunkley, who awarded the proceeds of a life insurance policy to the husband of a woman who knowingly omitted her chronic medical condition from the insurance company.

Colina Insurance Ltd., the appellant in the matter, was represented by attorneys Ashley Williams and E. Terry North of Alexiou, Knowles & Co.

Enos Gardiner, who was represented by attorney Raphael Moxey, was the respondent.

In the Court of Appeal’s April 4, 2019 ruling, Court of Appeal Justice Stella Crane-Scott noted that, in 2011, Monique Gardiner applied for a life insurance policy with Colina Insurance with a face value of $150,000.

“She completed the company’s proposal form and subsequently attended before the appellant’s paramedical examiner and answered, all in the negative, specific questions designed to elicit information pertaining to her medical history,” the ruling said.

“The appellant issued the policy on 8th December, 2011, however, Mrs. Gardiner died on 18th November, 2012, approximately 11 months afterwards.

“Her husband, now Mr. Gardiner, was the named beneficiary under the policy.

“He submitted a claim under the policy for payment of the sum assured. As the policyholder’s death occurred within the two-year contestability period stipulated in the policy, the appellant commenced its investigations.

“Mrs. Gardiner’s medical records were obtained from the Department of Public Health (DPH).

“Following its investigations, the appellant denied Mr. Gardiner’s claim on the basis that a medical record (the DPH summary) summarizing the attending physicians’ notes of her two visits to the Flamingo [Gardens Community] Clinic in 2007 and 2009.

“The DPH summary revealed that Mrs. Gardiner was a known hypertensive for two years prior to her 2007 visit and had been treated for frequent headaches and was not on medication.

“The doctor who treated her in 2007 also assessed her as having uncontrolled hypertension and prescribed blood pressure medication and recommended diet and exercise.

“On Mrs. Gardiner’s second visit to the Clinic in 2009, she complained of headache and was once again found to have had elevated blood pressure and to have weighed-in at 254 pounds.”

In his 2015 ruling, Dunkley found that, the DPH summary “is clearly hearsay evidence of the medical history of the insured”.

“Facts in issue must, subject to certain exceptions, be proved by direct evidence,” Dunkley said.

“The DPH summary is hearsay and not direct evidence of the medical history of the insured. The insurer has not established that any of the exceptions to the hearsay rule apply to the DPH summary or the radiology and ultrasound form.”

However, Crane-Scott found that, “Regrettably, the learned judge appears not to have adverted to sections 39 or 60 of the Evidence Act.

“Had he done so he may have had second thoughts about his view that the DPH summary was inadmissible hearsay.

“However, that is not the only difficulty we have found with his decision.”

Crane-Scott ruled that the fact that a specific document relied on by one party is contained in an agreed trial bundle does not prevent the other party from making a formal objection at the start of the trial to its contents being used or referred to witnesses in the course of the trial.

“In our view, it was simply impermissible for Mr. Moxey (as he did in his closing address following the trial) to raise an objection to the admissibility of Mrs. Gardiner’s medical records on the basis that they were hearsay after the case was closed,” Crane-Scott ruled.

“The contents of the documents were clearly already in evidence before the learned judge.”

Crane-Scott added, “For the learned judge to have (as he did) completely exclude the contents of the summary from his consideration on the basis of the hearsay rule was not only unreasonable and unfair, but plainly wrong.

“As Mr. Moxey raised no challenge to its admissibility or use during the trial, and utilized himself in the course of the respondent’s case, he ought to have been prevented from subsequently challenging it as hearsay in his closing address at the close of the trial.

“We were satisfied that the contents of the DPH summary, coupled with the answers which Mrs. Gardiner had given to the questions about her health contained in the application for life insurance form and the medical examiner’s report, clearly established a crucial aspect of Colina’s defense which was firstly, that Mrs. Gardiner had a pre-existing medical condition and secondly, that she had failed to disclose to Colina as required, full, complete and true information about her prior medical history at the time she applied for coverage.”

The court ruled that: “Having given anxious consideration to the learned judge’s findings and the various reasons he gave for his decision, we were satisfied that although he had the benefit of seeing the witnesses and in that sense, obviously had an advantage which we as an appellate court did not have, this was a case where, as we have demonstrated, his assessment of the evidence and the issues he had to resolve was so plainly wrong that we were left with no alternative but to intervene.

“For all the foregoing reasons we allowed the appeal, set aside the learned judge’s decision and entered judgment for the appellant on its defense.”

The costs of the appeal and in the Supreme Court were awarded to Colina “to be taxed if not agreed”.

Assistant Editor at The Nassau Guardian
Travis Cartwright-Carroll is the assistant editor. He covers a wide range of national issues. He joined The Nassau Guardian in 2011 as a copy editor before shifting to reporting. He was promoted to assistant news editor in December 2018.
Education: College of The Bahamas, English
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