invoking the Fifth Amendment privilege, thus effectively refusing Centennial the right to discovery, regarding the very same circumstances. In other words, Nappi seeks to shield himself under the cloak of the Fifth Amendment while using it as a sword to defend against Centennial's summary judgment motion. To allow such abuse of the privilege would prejudice Centennial's rights and result in an unfair tactical advantage for Nappi, results which the Second Circuit has warned trial courts against. See 4003-4005 5 th Ave., 55 F.3d at 84-85. Therefore, the court finds that it is inappropriate to reopen discovery, and the summary judgment motion will be decided on the facts currently before the court.
As previously discussed, Centennial has set forth a myriad of evidence which shows that 1928 is Nappi's true year of birth. In addition, the court will draw an adverse inference regarding the evidence tending to establish 1938 as Nappi's birth year because Nappi's invocation of the Fifth Amendment forecloses Centennial from questioning Nappi regarding that evidence. Centennial has further set forth evidence, the sworn affidavit of Ms. Benjamin, showing that there was no collusion by Ms. Benjamin in the fraud perpetrated by Nappi upon Centennial. The court will therefore draw an adverse inference regarding Nappi's relationship with Ms. Benjamin and his allegation of collusion with Ms. Benjamin to defraud Centennial, based upon Nappi's invocation of the Fifth Amendment and consequent refusal to testify regarding the circumstances surrounding the alleged collusion.
The court finds, therefore, that Centennial has met its burden of establishing an absence of a genuine issue of material fact. In other words, Centennial has established that Nappi was born in 1928, and his misrepresentation to Centennial constituted a breach of the disability policy contract.
Second, Nappi argues that a genuine issue of fact exists as to whether the disability policy is ambiguous in its terms. Nappi's argument is that the provision for termination of insurance at age 70 is inconsistent with termination of benefits at age 65. Nappi argues that the policy should be read to provide disability benefits to him until age 70, rather than age 65. Further, Nappi argues that the policy is ambiguous in that the heading for the benefit period chart refers to "sickness and injury" rather than "sickness or injury." Centennial counters that the policy is unambiguous on its face.
The policy provides that a member's insurance terminates, inter alia, on "the Policy Anniversary Date coinciding with or next following his attainment of age 70. (This is not applicable to Plan B)." (Matthews Aff. Ex. S.) Nappi states that it is unclear whether he is covered under Plan A or Plan B. Determination of whether Nappi is covered under Plan A or Plan B is unnecessary to solve the ambiguity question. When the insurance terminates and when an insured's benefits terminate are two completely different matters. That insurance coverage terminates at a different time than when benefits cease is inconsequential and certainly does not create an ambiguity. In a case such as this, where the insured becomes disabled at age 59, benefits continue until age 65. Presumably the individual remains disabled and does not return to work and thus would not qualify for further benefits even in the case of an additional disabling injury or sickness. In another case, however, where the insured is not disabled and continues to actively work, coverage continues until age 70. Thus, for example, if that insured became disabled at age 65, benefits would be payable for one year under the terms of the policy. This court will not read an ambiguity into a contract when the contract is clearly unambiguous on its face.
Nappi's conjunctive versus disjunctive argument also must fail. "Injury" is defined in the policy as an injury sustained in an accident which occurred while insurance coverage was effective and which results in total disability within 90 days of the accident. Sickness is defined as an illness or disease which begins while insurance coverage is effective. Sickness is defined to also include an injury, as previously defined except that the disability begins more than 90 days after the accident. Based upon these definitions, an insured cannot have both an "injury" and a "sickness" at the same time. Thus, Nappi's argument that because he has an injury and not a sickness, i.e., he does not have "injury and sickness," the policy is ambiguous in that the Maximum Benefit Period for Total Disability Due to Sickness and Injury would not apply to him fails.
The disability insurance policy is unambiguous on its face. Nappi's attempts to invent ambiguities in the policy to create genuine issues of fact are unsuccessful.
Centennial has established that there is no genuine issue of material fact and Nappi has failed to set forth specific evidence to show that there is a genuine issue for trial. Nappi attempted to and did in fact commit fraud in misrepresenting his age to Centennial. Centennial is therefore entitled to summary judgment.
According to the terms of the policy, Nappi, who became disabled at age 59, was due benefit payments until he reached age 65. Nappi reached age 65 on March 22, 1993. Centennial's obligation to pay disability benefits to Nappi terminated on March 22, 1993. However, Centennial continued to make payments until August 1994 based upon Nappi's misrepresentation of his age. Therefore, Centennial overpaid benefits to Nappi in the amount of $ 85,000. Nappi is liable to Centennial for those overpaid benefits. In addition, Centennial expended $ 2,220.20 to uncover Nappi's misrepresentation.
Accordingly, it is
1. Plaintiff Centennial Life Insurance Company's motion for summary judgment is GRANTED;
2. Defendant Anthony Nappi's counterclaim is DISMISSED with prejudice; 3. Defendant Anthony Nappi's true date of birth is March 22, 1928;
4. Plaintiff Centennial Life Insurance Company's obligation to pay disability benefits to defendant Anthony Nappi terminated on March 22, 1993; and
5. judgment shall be entered in favor of the plaintiff and against the defendant in the sum of $ 95,070.02, which represents $ 85,000.00 money overpaid, $ 2,220.20 costs, and $ 7,849.82
interest from August 1994 until the date of the judgment.
IT IS SO ORDERED.
David N. Hurd
United States Magistrate Judge
Dated: February 25, 1997
Utica, New York.