# Reisen v. Blue Cross Blue Shield > Court of Appeals of Oregon · October 7, 1992 · 115 Or. App. 396 URL: https://www.frixlaw.com/law-library/cases/6940074 ## Case - **Full name:** August J. REISEN, by and through Phillippe A. Stoner, Personal Representative of the Estate of August J. Reisen v. BLUE CROSS BLUE SHIELD OF OREGON, an Oregon corporation - **Court:** Court of Appeals of Oregon - **Decided:** October 7, 1992 - **Citations:** 115 Or. App. 396; 839 P.2d 729; 1992 Ore. App. LEXIS 1820 - **Precedential status:** Published - **Opinion:** Dissent by Riggs - **Judges:** Edmonds, Riggs, Warren - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6940074 ## Opinion text RIGGS, J., dissenting. The majority has taken liberties with both the facts and the law in this case. It is fundamental that, on review of a directed verdict, we must view the evidence in the light most favorable to the party against whom the verdict was directed, in this case, plaintiff. Maine Bonding v. Centennial Ins. Co., 298 Or 514, 523 , 693 P2d 1296 (1985). The majority, although it pays the slightest lip service to the rule, states and views the facts in the light most favorable to defendant. That is not only inappropriate, it is just plain wrong. The issue of materiality should have gone to the jury, and I would hold that the trial court erred in directing a verdict. The majority states that plaintiffs decedent failed to disclose certain conditions on the health insurance application, including a medical report indicating that decedent had taken an HIV test in January, 1989, and had had a chronic cough since January, 1989. The report, made in September, 1989, was not in existence on June 5, 1989, when decedent applied for insurance, and should not be included in the list of omissions. Further, plaintiff presented substantial evidence that decedent did not suffer either of the conditions indicated in the report when he applied for health insurance in June, 1989. Whether decedent had a chronic cough or had tested positive for HIV before applying for health insurance was purely an issue of fact for the jury and, viewed in the light most favorable to plaintiff, a reasonable juror could conclude that neither condition existed when he applied for health insurance. The majority also mischaracterizes the law, omitting from its quotation of Knight v. Continental Casualty, 259 Or 46 , 485 P2d 403 (1971), the controlling standard by which we must determine whether the question of materiality should be submitted to the jury when the insurer has presented evidence on the issue, but the insured has not. The court in Knight did not say that the issue of materiality could be decided as a matter of law, regardless of the quality of the insurer’s proof or the presence of rebutting proof. It said that that aspect of the case was controlled by this principle: “ ‘ [Wjhen the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the *407 light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinary intelligent mind, then a question has been presented for the court to decide and not the jury.’ ” 259 Or at 51 (quoting Rickard v. Ellis, 230 Or 46, 51 , 368 P2d 396 (1962)). (Emphasis supplied.) Only because the evidence in that case satisfied all of the elements of the rule did the court decide that materiality was a question for the court and not for the jury. 259 Or at 51 . The majority ignores the rule actually stated in Knight , with the consequence that any testimony by the insurance company, regardless of its weight or value, becomes sufficient to direct a verdict against plaintiff. Contrary to the majority’s determination that “[t]he evidence is uncontroverted that decédent’s misrepresentations as to his back condition were material as a matter of law,” 115 Or App at 402, defendant provided controverting evidence that another insurer (Blue Cross of California) had previously insured him without any restriction for his back condition. In the light of that evidence, a jury would be entitled to disbelieve testimony that defendant would have excluded decedent’s back condition, which had continued to be trouble free. If anything, an insurer would have been less likely to exclude such a condition at the time of application than at the time the previous insurer had accepted the condition. Contrary to the majority’s ultimate determination that the “uncontradicted testimony shows that disclosure of either dermatitis or mondial glossitis conditions in combination with decedent’s other unreported conditions that occurred before June, 1989, would have resulted in exclusion of those conditions or rejection of the application,” 115 Or App at 405, that testimony is not conclusive. The testimony that defendant would have rejected the application for those conditions in combination included consideration of the HIV test and chronic cough conditions, both of which a jury could find did not exist at the time of application. In sum, the testimony in this case does not meet the standard in Knight . It was not uncontradicted, not clear and convincing, not so plain and complete that disbelief of the *408 story could not reasonably arise in the rational process of an ordinary intelligent mind. In the light of general knowledge and common experience, and especially in the light of defendant’s witness’s testimony that she would not have rejected the application because of shingles or the removal of a facial growth, a fact finder could consider it incredible that an insurance company would reject an applicant because of those conditions. A reasonable jury could find it unbelievable that this insurer would reject or exclude decedent’s back condition, when an earlier insurer had accepted it. A reasonable jury could have found that decedent did not test positive for HIV or have a chronic cough and that defendant would not have considered decedent’s other conditions material at the time he applied for health insurance. The issues of fact, including the issue of materiality, should have been left for the jury to decide. I would hold that the trial court erred in ordering a directed verdict. The majority is wrong in holding otherwise. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6940074. Public record. Not legal advice.