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Marshall Salkin and Ellen Salkin v. United Services Automobile Association; Usaa Life Insurance Company

December 19, 2011


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge


Plaintiff Dr. Marshall Salkin, when he learned of his terminal prostate cancer, sought an accelerated death benefit under a life insurance policy he bought from Defendant USAA Life Insurance Company ("USAA"). USAA did not pay the benefit; instead, it rescinded Dr. Salkin's policy on the basis that Dr. Salkin made misrepresentations when he applied for the policy. Dr. Salkin and his wife, Plaintiff Ellen Salkin (the beneficiary of Dr. Salkin's policy), sued USAA, contending USAA rescinded the policy wrongfully. USAA filed the instant Motion for Summary Judgment ("Motion") (Doc. No. 32) on November 7, 2011, arguing it was within its rights to rescind Dr. Salkin's policy, based on significant misrepresentations Dr. Salkin made in his application.

The Court concludes Dr. Salkin made material misrepresentations in his life insurance application; consequently, USAA was within its rights to rescind Dr. Salkin's policy. As a result, the Salkins' claim for breach of duty of good faith and fair dealing fails as a matter of law.*fn1 Accordingly, for the reasons discussed below, the Court GRANTS USAA's Motion for Summary Judgment.


A. Preliminary Evidentiary Issues

Before recounting the undisputed facts, the Court takes up the parties' objections to the evidence. The Salkins posed only one evidentiary objection (see Doc. No. 41), i.e., the medical records submitted as Exhibit F to the Declaration of Tammy Koenig are inadmissible hearsay under the Federal Rules of Evidence, and further, are inadmissible as "records containing opinions concerning a person's mental state" under California law. The Court sustains the hearsay objection pursuant to the Federal Rules of Evidence. Although anything Dr. Salkin told his physicians for the purpose of diagnosis is hearsay subject to an exception, see Fed. R. Evid. 803(4), the medical records in which those statements (and other information) are now contained are also hearsay, and without "the testimony of the custodian or another qualified witness" that the records were made contemporaneously with Dr. Salkin's visits and in the regular course of business, Fed. R. Evid. 803(6), the medical records fall outside the business records exception to the hearsay rule. As USAA failed to provide the declaration of a custodian as to the provenance of the medical records, to the extent USAA's Motion relies upon Dr. Salkin's medical records, it may not do so in a manner that assumes their accuracy.

Next, the Court turns to USAA's objections (Doc. No. 46), chiefly that the Salkins failed to authenticate properly virtually all of the evidence submitted in opposition to summary judgment. The Court's Standing Order (Doc. No. 8), sent to all parties on September 2, 2010, states (in relevant part):

Parties offering evidence in support of, or in opposition to, a Rule 56 motion must cite to specific page and line numbers in depositions and paragraph numbers in affidavits. Furthermore, such evidence must be authenticated properly. The Court directs the parties to become familiar with Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). (emphasis added).

Orr deals extensively with the subject of proper authentication of documents submitted in conjunction with summary judgment proceedings, which "must be 'attached to an affidavit that meets the requirements of Fed. R. Civ. P. 56[(c)(4)] and the affiant must be a person through whom the exhibits could be admitted into evidence.'" 285 F.3d at 774 (quoting Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)).

Here, the Salkins seek to admit various documents based on the declaration of their counsel that the documents are authentic. (See, e.g. Corby Decl. (Doc. No. 53-1) ¶ 8.) To make such a declaration effectively, however the authenticating witness must have personal knowledge that the document is what it purports to be, e.g., because he wrote it, signed it, used it, or saw others do so. Orr, 285 F.3d 774 n.8. There is no indication that Corby, the Salkins' attorney, has personal knowledge that (for example) what he declares is an electronic mail message ("email") between two USAA employees is actually a true and correct copy of that email.

Of course, a party may authenticate a document by virtue of the fact the document was produced in discovery "when the party identifies who produced the document, or if the party opponent admits to having produced it." Barefield v. Bd. of Trustees of Cal. State Univ., Bakersfield, 500 F. Supp. 2d 1244, 1257-58 (E.D. Cal. 2007) (citing Orr, 285 F.3d 777-78). While it appears from the Bates stamps on the proffered documents that USAA produced them, Corby did not so declare; consequently, the documents may not be authenticated by production.

Nevertheless, the Court overrules USAA's objections. To the extent USAA proffered some of the same evidence as have the Salkins, "[o]nce evidence has been authenticated by one party, it has been authenticated with regard to all parties," Barefield, 500 F. Supp. 2d at 1258 (citing Orr, 285 F.3d at 775-76), and in any event, USAA does not actually contest the authenticity of the evidence at issue, just the Salkins' failure to authenticate it properly. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 454 F. Supp. 2d 966, 972 (C.D. Cal. 2006) (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996)) (holding that an objection to a party's failure to authenticate documents, without a corresponding denial of the documents' authenticity, is insufficient to exclude documents produced in discovery by the objecting party).

Having thus dispensed with the parties' evidentiary objections, the Court now turns to the facts of the case before it.

B. Factual Background

Dr. Salkin, a retired Navy commander and physician, first applied for a life insurance policy from USAA in September 2007. (See Koenig Decl. (Doc. No. 52) ¶ 2.) Based on Dr. Salkin's representation in a telephone interview that his father died of a heart attack, and an electrocardiogram ("EKG") -- performed at USAA's request -- that showed Dr. Salkin had a right bundle branch block,*fn2 USAA offered Dr. Salkin a policy at an increased premium. (Koenig Decl. ¶ 2.) Dr. Salkin declined the offer. (Id. ¶ 3.) In May 2008, Dr. Salkin applied again, but because of the amount of time that had elapsed since his first application, he was required to undergo new laboratory tests, and to submit to another telephone interview. (Id. ¶¶ 4-5.)

The following relevant colloquies occurred in the 2008 telephone interview:

Interviewer: And have you ever consulted with a health care provider for a seizure, paralysis, stroke, depression, anxiety or other mental or nervous system disorder?

Dr. Salkin: No. . . .

Interviewer: Chest pain, high blood pressure, murmur, heart attack or other heart or blood vessel disorder?

Dr. Salkin: Okay, I have a history of high blood pressure.

Interviewer: And what is the name of the doctor or facility named that would have a record for this?

Dr. Salkin: Let's see, I'm a doctor so, I doctor myself.

Interviewer: So you have your own medical records for your ...

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