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Clark v. Old Mutual Financial Network

June 10, 2008

ANTHONY DAVID BROOKS CLARK, AS ADMINISTRATOR FOR THE ESTATE OF TAMARA BOWENS, PLAINTIFF,
v.
OLD MUTUAL FINANCIAL NETWORK AND FIDELITY AND GUARANTY LIFE, DEFENDANTS.



The opinion of the court was delivered by: Hon. George W. Lindberg

MEMORANDUM OPINION AND ORDER

Before the court is defendant OM Financial Life Insurance Company's ("OM"), formerly known as Fidelity and Guaranty Life Insurance Company, motion for summary judgment as to plaintiff Anthony David Brooks Clark's ("Clark") one-count complaint for breach of contract. Clark is the administrator of the estate of his deceased sister, Tamara Bowens ("Bowens"). This case stems from OM's denial of a claim for death benefits on behalf of Bowens' estate. For the reasons set forth more fully below, defendant's motion for summary judgment is denied.

I. Motion to Deem Certain Facts Admitted

Before the court turns to the merits of OM's motion for summary judgment, it must address OM's motion to deem certain of plaintiff's responses to OM's Local Rule ("Rule") 56.1(a)(3) statement of material facts admitted. It is well settled that litigants must strictly comply with the requirements of the court's local rules, including Rule 56.1. F.T.C. v. Bay Area Business Counsel, Inc., 423 F.3d 627, 633 (7th Cir. 2005).

In response to paragraphs 23 and 26-43 of OM's Rule 56.1(a)(3) statement, plaintiff states that he "lacks sufficient information to form a belief as to the truth of the matter asserted and thus, denies the same and demands strict proof thereof." This type of response is improper. Therefore, paragraphs 23 and 26-43 of OM's Rule 56.1(a)(3) statement are deemed admitted. See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998). Plaintiff's responses to paragraphs 2-4, related to jurisdiction and venue, are also improper and those paragraphs are deemed admitted. Plaintiff denies the facts in paragraphs 13 and 24-25 without providing any supporting record citations. Such denials are improper and the facts alleged in paragraphs 13 and 24-25 are deemed admitted. See Ammons v. Aramark Uniform Services, Inc. 368 F.3d 809, 817-18 (7th Cir. 2004). Paragraphs 7, 11, 12, and 44 are also deemed admitted because the record citations plaintiff provides do not support a denial of the facts in those paragraphs.

The motion is denied in part as to paragraph 5. Plaintiff properly denies that Ronald and Tamara Bowens completed the disputed Life Insurance Application and that fact is not deemed admitted. However, the remainder of paragraph 5 is deemed admitted. The motion is also denied as to paragraphs 6, 8-10, 14-19, 21, and 45. Plaintiff has already admitted the allegations in paragraph 8 and his denials of paragraphs 6, 9-10, 14-19, and 21 are proper. The motion is granted in part and denied in part as to paragraph 22. Plaintiff properly denies that the insurance application was complete. The remainder of paragraph 22 is deemed admitted.

II. Motion to Strike

Plaintiff filed a motion to strike a certification from Dennis A. Gunderson ("Gunderson") defendant filed in support of its motion for summary judgment. Plaintiff moves to strike the certification on the ground that statements therein conflict with Gunderson's sworn deposition testimony. To the extent any of the statements in the certification conflict with Gunderson's deposition testimony, his deposition testimony will control and the conflicting statements in the certification with be disregarded. See Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1056 (7th Cir. 2000). The court will consider any admissible statements in the certification that do not conflict with Gunderson's deposition testimony. Accordingly, the motion to strike is granted in part and denied in part.

III. Relevant Facts

Now the court turns to the merits of OM's motion for summary judgment. The following facts are undisputed unless specifically noted below. Clark is the administrator for the estate of his deceased sister, Tamara Bowens ("Bowens"). In March 2004, Bowens and her husband, Ronald, applied for life insurance policies through OM. At that time, Bowens was thirty-eight years old. On March 27, 2004, the Bowens met with Lucita Zamoras, an insurance agent for OM, to complete Part 1 of the life insurance application ("Part 1"). Ms. Zamoras prepared Part 1 for the Bowens by asking them questions and recording their answers. The Bowens signed Part 1, verifying that their answers therein were complete, true and correctly recorded.

Ms. Zamoras asked Bowens if she had ever been treated or diagnosed with heart disease, heart attack, chest pain, high blood pressure, high cholesterol, murmur palpitations, or any other disorder of the heart or blood vessels. Mrs. Bowens responded "yes" to that question and Ms. Zamoras underlined the term high blood pressure in Part 1. Ms. Zamoras indicated on Part 1 that Bowens' high blood pressure was controlled by taking medication once a day for the two years prior to the application. Ms. Zamoras also noted Bowens' indication that she had not been hospitalized or had surgery in the past ten years and that she had not had any electrocardiograms, x-rays, lab tests, treatments or procedures during that time.

On April 24, 2004, Te'shica Caldwell ("Caldwell"), another OM representative, met with the Bowens to complete Part 2 of the application ("Part 2"), a paramedical examination. Caldwell asked the Bowens the questions in Part 2 and recorded their responses therein. However, at the end of that meeting, Caldwell did not have the Bowens sign Part 2, or verify the accuracy and completeness of their answers to the questions in Part 2. Even though the Bowens did not sign Part 2, OM issued life insurance policies for both of them, effective April 28, 2004. Ronald was the primary insured and OM issued Bowens a dependant's level term life insurance rider, which provided her with $300,000 in death benefit coverage at a standard non-tobacco premium rate. Parts 1 and 2 of the insurance application were attached to the rider and made part of it.

The rider provided that OM would not contest its validity based on statements made in the application after the rider had been in effect during the insured's lifetime for two years from the date of issue. Bowens and Ronald were murdered on March 28, 2006, within the rider's two-year contestability period. The post-mortem exam performed by the Cook County Medical examiner indicated that Bowens died from multiple gun shot wounds. It also indicated that, at the time of her death, Bowens' coronary arteries pursued their usual anatomic course and were free of atherosclerotic disease.

After Bowens' death, Clark filed a claim for death benefits with OM on behalf of Bowens' estate. After Clark filed that claim, OM obtained medical records for Bowens from Union Health Services. Those medical records indicated that Bowens had an EKG in August 1999 and the results were abnormal. The records also indicated that Mrs. Bowens reported chest pain in August 1999 and again in January 2001, April 2002, October 2003 and April 2004, and that she had a prior history of ...


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