The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
The plaintiff, Victoria Nieder ("Victoria"), is seeking to recover the death benefit on her late ex-husband's life insurance policy from Defendant Jackson National Life Insurance Company ("Jackson National"). Neither Victoria nor her ex-husband, Timothy Nieder ("Timothy"), received any notice of the policy entering a grace period after missing the July 5, 2009 premium or that the policy had lapsed at the end of that grace period on August 5, 2009. Timothy died January 13, 2010. Defendants now move to dismiss plaintiff's complaint pursuant to FRCP 12(b)(6). The motion to dismiss is granted for the reasons articulated below.
In July 2000, Timothy was issued a life insurance policy with a face value of one million dollars from Jackson National, an insurance company based in Michigan.*fn1 Frank Glienna was the agent through whom the policy was purchased. Victoria was named as the only beneficiary.
Timothy paid annual premiums of $1,135 which were due by July 5 of each year, but Jackson National at times accepted payments thirty to sixty days late. Although the Nieders lived at 1005 S. Hamlin, Park Ridge, Illinois, prior to December 1, 2001, the policy erroneously stated that they lived at 1005 N. Hamlin, Park Ridge, Illinois.*fn2 Timothy signed the policy which contained the incorrect address. Victoria tried numerous times to change the address but to no effect.*fn3
On December 1, 2001, the Nieders moved to 827 S. Hamlin, Park Ridge, Illinois, and informed Frank Glienna, their agent, of their change of address. The address was never changed and Victoria ceased making requests to change the address in 2007 or 2008 after at least three attempts.
In December 2009, Victoria and Timothy divorced. On January 13, 2010, Timothy passed away. Around the time of January 26, 2010, Victoria sent a handwritten letter along with Timothy's death certificate to Jackson National seeking the death benefit under the life insurance policy as she was still the sole beneficiary. On February 5, 2010, Jackson National sent Victoria a letter informing her that the death benefit would not be paid since the policy had lapsed due to non-payment of the premium. The letter was addressed to Victoria Nieder at 1005 N. Hamlin, Park Ridge, Illinois, and was not received by Victoria until a postal worker found the letter and recognized Victoria's name in June 2010. The Nieders never received either a premium notice or notice of lapsed policy at 827 S. Hamlin. On June 14, 2010, Victoria sent Jackson National a check for $1,135 after receiving the misaddressed February 5, 2010 letter. Jackson National accepted and cashed the check from Victoria.*fn4 All correspondence between Jackson National and Timothy from July 15, 2009 and August 5, 2009 was sent to 1005 N. Hamlin, but, none of these letters was received by either Victoria or Timothy.
Defendant now moves to dismiss the ccomplaint, pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I must take all facts alleged in Plaintiff's complaint as true and draw all reasonable inferences from those facts in favor of the Plaintiff. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir. 1992). Plaintiff, for her part, must do more than solely recite the elements for a violation; she must plead with sufficient particularity so that her right to relief is more than mere conjecture. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must plead her facts so that, when accepted as true, they show the plausibility of her claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Plaintiff must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility,of her entitlement to relief. Id. (internal quotations omitted).
Plaintiff alleges three counts in her complaint: In Count I, she seeks a declaratory judgment that she is entitled to the benefit under the life insurance policy issued to her ex-husband by Jackson National; in Count II, plaintiff alleges a third-party beneficiary claim; and Count III, which alleged that Defendant acted in bad faith to settle the claim, has been dismissed by stipulation.
Plaintiff alleges that she is entitled to receive the death benefit of her ex-husband's life insurance policy, claiming that, (1) due to deficient notice, Defendant was unable to declare the policy lapsed; (2) Defendant waived its right to declare the policy lapsed by cashing a check for a late premium; and (3) Defendant should be estopped from declaring the policy lapsed.
1. Jackson National was entitled to declare the policy lapsed even though it had failed to provide proper notice ...