Facts

New England Life Insurance Company (New England) received a life insurance application dated August 1997 naming Raymond E. Signorello Sr., as the proposed insured and Raymond E. Signorello Jr., his son, as the owner and beneficiary. No money was submitted with the application. The application provided that the insurance would take effect only when the first premium was paid provided that the application was approved and there had been no change in insurability as represented in the application. While the policy application was pending, Raymond E. Signorello Sr. was diagnosed with terminal esophageal cancer at the end of October 1997. Raymond E. Signorello Jr. was allegedly unaware of the change in his father's health until Christmas 1997. The first premium was paid by Raymond E. Signorello Jr. with a check dated Nov. 20, 1997. Raymond E. Signorello Sr., died on Nov. 12, 1998. When Raymond E. Signorello Jr. submitted a claim, New England's routine contestable claim investigation revealed the 1997 cancer diagnosis. After New England's underwriting department determined that the policy would not have been issued if it had known of the terminal cancer diagnosis, New England attempted to rescind the policy and tendered a check for all premiums paid. The check was never endorsed. New England sued for declaratory relief and rescission. Raymond E. Signorello Jr., counterclaimed for breach of contract, breach of implied covenant of good faith and fair dealing, intentional misrepresentation and negligent misrepresentation.