Dominguez

MEMORANDUM ***

In 1986, Alfonso D. Dominguez was diagnosed as suffering from several foot ailments. In 1994, he applied for a disability insurance plan from Mutual Life Insurance Company of New York (“MONY”). Although the application form required him to reveal his past foot injury, Dominguez did not do so, and MONY thereafter issued him a policy. As required by California law, the policy included an incontestability clause providing that if disability is incurred two years after the policy’s effective date, the insurer cannot deny or reduce benefits on the ground that the disease or physical condition existed prior to the policy date.

In June of 1996, Dominguez underwent surgery on his foot. Later that year, Dominguez submitted a claim to MONY, asserting he was unable to work because of pain in his foot. Dominguez eventually had to sue for coverage alleging contract claims and negligent and intentional infliction of emotional distress. MONY defended itself, inter alia, by arguing that Dominguez’s policy was ineffective due to misstatements on his policy application. The district court agreed, finding that California’s incontestability clause did not apply because Dominguez’s…