McQuay v. Arkansas Blue Cross & Blue Shield

I concur in the result reached by the majority only because we are bound by the interpretation of Ark. Code Ann. § 23-79-107 set forth by the supreme court in Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999). Phelps established that an insurer cannot rely on section 23-79-107(a) (3) to rescind a policy if an applicant, in good faith, answered a question concerning a pre-existing medical condition in the negative, even though the empirical fact of the preexistence of the condition was proven. The trial court in this case found that a question of fact remained as to…