Unpublished Disposition, 872 F.2d 426 (9th Cir. 1989)

MEMORANDUM^** 

Joseph A. Cohen appeals from a judgment in favor of Mutual of Omaha Insurance Co. on his claim for breach of an employment disability insurance contract. The trial court held that Mutual of Omaha was entitled to rescind the contract because Cohen failed to disclose his pre-existing health problems.

Under California law, failure to disclose a pre-existing medical condition is not grounds for rescission where the insured lacked knowledge of the condition at the time of his application. Life Ins. Co. v. Capps, 660 F.2d 392, 394 (9th Cir. 1981). Cohen argues that he lacked knowledge of his pre-existing health problems. The trial court disagreed. The trial court's findings are supported by the record.

Cohen also argues that his failures to disclose are excused by the fact that he supplied Mutual of Omaha with the names of the doctors who diagnosed and treated his medical condition. He claims that Mutual of Omaha waived its right to complete disclosure by failing to inquire among those doctors. Cohen's argument lacks merit. Under California Insurance Code section 336, " [a]n insurer waives its right to receive withheld information only if it fails to make inquiries as to such information when the information is 'distinctly implied' in other facts that are disclosed." Jaunich v. National Fire Ins. Co., 647 F. Supp. 209, 212 (N.D. Cal. 1986). None of the information supplied by Cohen was sufficient to put Mutual of Omaha on notice of his pre-existing health problems.

Finally, Cohen argues that Mutual of Omaha caused or contributed to the inadequate disclosures by asking only a single, broad question about Cohen's health history, and assuring him that there was "no problem" with his application. Cohen was provided with a copy of his insurance application. Mutual of Omaha did not prevent Cohen from reading the application or lead him to believe that the incomplete and inaccurate answers were immaterial. Mutual of Omaha's conduct therefore did not relieve Cohen of his duty to disclose his pre-existing health problems. See Rutherford v. Prudential Ins. Co., 234 Cal. App. 2d 719, 726, 44 Cal. Rptr. 697 (1968).

AFFIRMED.