North American Co. for Life & Health Insurance v. Hoh , 334 F. App'x 586 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1931
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE,
Plaintiff - Appellee,
v.
GRACE M. HOH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:07-cv-01693-CMC)
Submitted: April 28, 2009 Decided: June 18, 2009
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Jahue Moore, Sr., William H. Edwards, MOORE, TAYLOR & THOMAS,
PA, West Columbia, South Carolina, for Appellant. David F.
Schmidt, CHITTENDEN, MURDAY & NOVOTNY, LLC, Chicago, Illinois,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Grace Hoh appeals the district court’s grant of
summary judgment to North American Company for Life and Health
Insurance (“North American”) on its action seeking a declaration
that a life insurance policy issued to Hoh’s husband, William
Hoh, was void or unenforceable. Hoh contends that the district
court erred in granting summary judgment, as genuine issues of
material fact exist as to when her husband accepted the policy
and whether her husband was covered by the policy. Hoh also
raises a claim of judicial bias on the part of the district
court judge. We affirm.
We review de novo a district court’s order granting
summary judgment and view the facts in the light most favorable
to the nonmoving party. Bogart v. Chapell, 396 F.3d 548, 555
(4th Cir. 2005). Summary judgment is appropriate when no
genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c).
A federal court sitting in diversity must apply the
choice of law rules of the forum state. Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). In South Carolina,
all insurance contracts covering property, lives, or interests
in South Carolina are to be interpreted by applying South
Carolina substantive law. S.C. Code Ann. § 38-61-10 (2002);
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Sangamo Weston, Inc. v. National Sur. Corp., 414 S.E.2d 127,
130-31 (S.C. 1992). South Carolina courts employ general rules
of contract construction when interpreting insurance policies.
See Century Indem. Co. v. Golden Hills Builders, Inc., 561
S.E.2d 355, 358 (S.C. 2002). Thus, courts will attach “plain,
ordinary, and popular meaning” to policy language. B.L.G.
Enters., Inc. v. First Fin. Ins. Co., 514 S.E.2d 327, 330 (S.C.
1999). “[I]nsurers have the right to limit their liability and
to impose conditions on their obligations provided they are not
in contravention of public policy or a statutory prohibition.”
Id. Though coverage exclusions found within an insurance policy
are to be construed against the insurer, see id., a court’s duty
“is limited to the interpretation of the contract made by the
parties themselves regardless of its wisdom or folly, apparent
unreasonableness, or [the parties’] failure to guard their
rights carefully,” C.A.N. Enters., Inc. v. S. C. Health & Human
Servs. Fin. Comm’n, 373 S.E.2d 584, 587 (S.C. 1988) (internal
quotation marks and citation omitted)
It is clear that North American imposed one such
condition upon its life insurance obligations to the Hohs: that
any policy issued as a result of the application submitted by
William Hoh would not take effect “until the full first premium
is paid and the contract is delivered to and accepted by the
Owner during the lifetime of any person proposed for insurance
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and while such person is in the state of health described in all
parts of this application.” (emphasis added). Thus, in order
for William Hoh to be covered under the terms of the insurance
contract, the contract must have been delivered to Hoh and
accepted by him while he was in the same state of health
described in the insurance application.
Though the Appellant contends that William Hoh was in
the same “state of health” on April 15, 2006, when he accepted
the policy, as he described in the application on February 3,
2006, this contention is belied by the record. When Hoh filled
out his medical history on February 3, 2006, he indicated that
he had never suffered from dizziness, shortness of breath, or
chest pain. He also noted that he had never suffered from
anemia or blood disorders. (J.A. 23). During his medical
examination, blood was drawn, and no irregularities were noted.
However, on April 7, 2006, William Hoh visited a
doctor complaining of chest pain, shortness of breath, and
dizziness. Subsequent blood tests revealed an extremely low
hemoglobin level, which doctors believed signified an underlying
bone marrow disorder. From April 13 through April 14, 2006, Hoh
underwent various cardiology tests and a bone marrow aspirate.
As a result of these tests, Hoh was diagnosed with
myelodysplastic syndrome on April 20, 2006. Therefore, it is
clear that on April 14, 2006, the day before William Hoh
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accepted the insurance policy, he was suffering from
myelodysplastic syndrome, and his state of health had
significantly changed from that described in the application.
Although Appellant argues that there is some question
as to the date on which the policy was “delivered” to William
Hoh, it is undisputed that William Hoh accepted the Policy on
April 15, 2006, the day he completed and signed the amendment
and Statement of Health. As the evidence is clear that William
Hoh’s health had significantly changed between February 3, 2006,
and April 15, 2006, the contract, by its own terms, did not take
effect upon Hoh’s April 15, 2006 acceptance, by a failure of a
condition precedent. Accordingly, we find Appellant’s first
issue to be without merit.
We review questions of judicial bias de novo. People
Helpers Foundation, Inc. v. City of Richmond, Va., 12 F.3d 1321,
1325 (4th Cir. 1993). A judge must recuse herself in instances
where “a person with knowledge of the relevant facts might
reasonably question [her] impartiality.” United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003). However, a judge
need not recuse herself due to “unsupported . . . highly tenuous
speculation.” United States v. DeTemple, 162 F.3d 279, 287 (4th
Cir. 1998) (internal quotation marks and citation omitted).
Here, Appellant argues that the judge’s daughter’s prospective
employment with one of the firms representing North American
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provides a reasonable basis to question the judge’s
impartiality. However, we find that this is nothing more than
the sort of “highly tenuous speculation” that fails to merit
recusal. Therefore, this issue too is without merit.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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