The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
On February 14, 2012, Defendant Federated Life Insurance Company ("Federated"). The matter was heard on March 23, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Sheila Tatayon appeared on behalf of Federated. David Hollingsworth appeared on behalf of Plaintiff Keith Warkentin ("Warkentin").
Warkentin filed this action on December 22, 2009, in Merced County Superior Court, He claims that Federated unlawfully denied him benefits due to a purported disability resulting from lower back pain pursuant to a disability insurance policy. Federated removed the action to this Court on February 10, 2010, and filed an answer.
On January 12, 2012, the parties filed a stipulation to allow Warkentin to file a First Amended Complaint ("FAC") and to allow Federated to file a response. Doc. 36.
On January 18, 2012, Warkentin filed his FAC. Doc. 39. He re-filed the FAC on January 20, 2012. Doc. 41. Federated filed its answer to the FAC, along with a counterclaim, on January 31, 2012. Doc. 44.
On February 14, 2012, Federated filed the instant motion for summary judgment, claiming it is entitled to rescind the insurance policy at issue and it is entitled to declaratory relief. Doc. 45.
On March 16, 2012 Federated filed a reply, noting that Warkentin failed to file any opposition to the motion. Doc. 56.
On the eve of hearing, March 22, 2012, at approximately 7:33 p.m., Warkentin filed his purported opposition to Federated's motion for summary judgment. The opposition was not timely filed pursuant to Federal Rule of Civil Procedure 56 and Rule 230 of the Local Rules of the United States District Court, Eastern District of California. Given this failure, Warkentin was not entitled to be heard in opposition to the motion at oral argument. Local Rule 230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.").*fn1
This case concerns a dispute over a disability income insurance policy issued by Federated Life Insurance Company to Plaintiff Keith Warkentin. The policy at issue is "Disability Income Policy" number 656909 ("Policy") issued September 8, 2005. Undisputed Material Fact ("UMF") 1. The entire contract between the parties consists of the Policy, the application of Warkentin for the policy, the policy data page, and any attached riders, amendments, or endorsements. UMF 2 and 15.
On June 14, 2005, Warkentin completed and signed a written application ("Application") for the Policy. UMF 3. By signing the Application, Warkentin acknowledged that a telephone interview process had been explained to him, and that he understood Federated would rely on the information obtained in the telephone interview in deciding whether to issue an insurance policy. UMF 5 & 6.
On June 27, 2005, Federated conducted a telephone interview with Warkentin for Part 2 of the Application. Part 2 of the Application contained the questions and the responses of the telephone interview. UMF 7. Question number 2 of Section O, "Health Information," on Part 2 of the Application states: "Have you seen any other doctors, chiropractors, specialists, or therapists in the last 5 years including any medication, treatment or therapy?" The response is "No." UMF 8 and 9.
On September 8, 2005, Warkentin signed the Acknowledgment of Acceptance and Delivery of Policy #6569089 ("Acknowledgment"). By signing the Acknowledgment, Warkentin agreed that he had read and understood Part 2 of the Application and represented it to be true, accurate and complete to the best of his knowledge. UMF 11. Warkentin also agreed that he was not aware of any information, other than what was disclosed, which might affect Federated's willingness to issue the Policy. UMF 13. The Acknowledgment clearly stated that Federated ...