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Helal v. Lincoln Benefit Life Co.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


December 9, 2003

NEVEN HELAL PLAINTIFF,
v.
LINCOLN BENEFIT LIFE COMPANY, JOHN DOES, MARY DOES, ABC PARTNERSHIPS AND XYZ CORPORATIONS, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.

The opinion of the court was delivered by: Jerome B. Simandle United States District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court on Defendant Lincoln Benefit Life Company's ("Lincoln" or "Lincoln Life") motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, to dismiss Plaintiff Neven Helal's claim against it. This is an insurance coverage action and the Plaintiff seeks a payout on her husband's life insurance policy. Hossam Marzook, the Plaintiff's husband, had a life insurance policy through Defendant Lincoln and the Plaintiff was the beneficiary on this policy. The Plaintiff applied for a payout on the policy after her husband's death on June 25, 2001. Defendant denied payout on the policy, rescinded the policy and refunded to Plaintiff all the premiums paid on the policy since its inception plus interest, alleging that the policy lapsed in September, 1999 for non-payment of premium and that the decedent's application for reinstatement in January 2000 was void due to his material misstatement, denying cancer when in fact he had been diagnosed with brain cancer before that time, and to which he succumbed about 18 months later.

Defendant Lincoln Benefit now moves *fn1 for summary judgment, contending that the plain and unambiguous language of Mr. Marzook's policy and the facts in this case preclude a payout on the insurance policy. For reasons discussed herein, this Court finds that there is a genuine dispute as to the fact whether Mr. Marzook, in October 1999, authorized Lincoln to deduct his monthly premiums from his new account at Commerce Bank; that Lincoln in fact made subsequent drafts for Marzook's monthly premiums from his new Commerce Bank account, if all favorable inferences are extended to Plaintiff as the party opposing summary judgment, that Lincoln received the decedent's authorization despite Lincoln's denial that it did. Defendant's motion for summary judgment will be denied.

I. Procedural and Factual Background

A. Procedural History

After Lincoln rescinded the policy, Plaintiff Neven Helal filed suit in New Jersey Superior Court in Atlantic County. Upon a notice of removal by the Defendant, the suit was removed to the Court. Defendant Lincoln has filed a motion for summary judgment with this Court, opposition has been submitted, and the matter is decided without oral argument, pursuant to Rule 78, Fed. R. Civ. P.

B. Facts

On March 29, 1997, Hossam Marzook completed an application to purchase a term life insurance policy from Defendant Lincoln Benefit Life Company. Mr. Marzook was the proposed insured for the policy and also served as the insurance agent for the application. For a period of time, Mr. Marzook owned and operated his own insurance agency, HM Insurance Agency. Lincoln approved Mr. Marzook's application and issued him a life insurance policy with a value of $500,000, effective June 4, 1997. His wife, Plaintiff Neven Helal, was the beneficiary on the policy.

As part of his application for life insurance, Mr. Marzook gave authorization for his monthly premium payments to be automatically withdrawn from his Core States Bank checking account and paid directly to Lincoln. His monthly premium payments were $98.18 and were due on the fourteenth of each month.

Terms of the Insurance Policy

The policy provides a 31-day grace period after the premium due date in which to pay premiums. The policy warns that "[i]f you do not pay the premium due by the end of the grace period, this certificate will lapse as of the due date of the unpaid premium. When the certificate lapses, it is no longer in force." Kirshner Decl. ¶ 5, Exh. C, Policy.

If the insured fails to make a premium payment and lets the policy lapse, the policy can still be reinstated within five years of the lapse. If the insured wants to reinstate a lapsed policy, he must do the following:

1. Request reinstatement prior to the termination date and within five years of the due date of the first premium which was not paid;

2. Give Lincoln Benefit the proof that they require to establish that the insured is still insurable in the stated premium class according to Lincoln's normal rules; and

1. Pay all due and unpaid premiums, plus 6% interest per year, compounded annually.

Kirshner Decl. ¶ 5, Exh. C, Policy.

Pursuant to a Rider in the Insurance Policy, premiums may be waived after the insured becomes "totally disabled," as defined by Lincoln Life, and while that total disability continues. To be eligible for a waiver of premiums, the insured must provide written notice of a claim and proof of total disability. The Rider states that if a policy holder submits a claim for disability waiver, he must continue to pay all premiums due until the waiver is approved by Lincoln. Kirshner Decl. ¶ 5, Exh. C, Policy.

The Policy also includes an incontestability provision which states:

Except as provided in any attached benefit rider with an incontestability provision, we may not contest this certificate once it has been in force during the life-time of the insured for two years from its issue date except for failure to pay premiums. This means that we cannot use any misstatements by you in the application to challenge any claim or to avoid liability under this certificate after that time.

Id.

Alleged Lapse in September 1999

For the first two years of the policy period, Mr. Marzook paid his premium payments in a timely manner through automatic withdrawals from his Core States checking account. Other than the alleged lapse in September 1999, Mr. Marzook had only one prior instance where a premium payment was late. In June 1999, Marzook's bank returned a pre-authorized check intended to cover the May premium payment due to insufficient funds. Lincoln wrote Mr. Marzook to inform him that his bank refused payment due to insufficient funds and advised Mr. Marzook that he should remit payment in the amount of $98.18 within fifteen days to prevent the policy from lapsing. The letter also advised Mr. Marzook that if he wished to have premium payments deducted from a new bank account, he would have to provide authorization and a voided check from the new account. In response to this letter, Mr. Marzook sent Lincoln a check for $98.18 to cover the unpaid May premium payment. He also sent in an authorization to continue drafting from the same account at Core States.

On October 11, 1999, Lincoln wrote Mr. Marzook to inform him that his bank had returned a pre-authorized check due to insufficient funds for the September 14, 1999 premium payment. Identical to the letter sent regarding the May 1999 premium payment, Lincoln advised Mr. Marzook that he should remit payment in the amount of $98.18 within fifteen days to prevent the policy from lapsing. The company also advised Mr. Marzook that if he wished to have premium payments deducted from a new bank account, he would have to provide an authorization and a voided check from that new account.

There is a dispute between the Plaintiff and Defendant as to whether Mr. Marzook responded to the October 11, 1999 letter. Defendant Lincoln Benefit claims that they never received any check, authorization or other response from Mr. Marzook, within the fifteen days following October 11, 1999. Plaintiff alleges that Mr. Marzook responded to this October 11th letter and sent authorization to Lincoln to draw funds from his new Commerce Bank account. Plaintiff's Response to Defendant's Statement of Material Facts, ¶ 14. The record contains a document, authenticated by Plaintiff at her deposition, which purports to be Mr. Marzook's authorization to Lincoln, dated October 15, 1999 and signed by him, to collect the $98.18 monthly premium from his Commerce Bank account, attaching a voided copy of a blank Commerce Bank check for his account, namely Check #155 on Account No. 44-4821-3. (Helal Dep. Ex. 7; Decl. of Tonya Pierson, Ex. A.). Lincoln Benefit denies that they ever received such an authorization or other correspondence from Mr. Marzook in response to their October 11th letter. Lincoln's Statement of Material Facts ¶ 15. Furthermore, Defendant contends that the authorization, even if received, would only be for future premium payments. Defendant states that Mr. Marzook should have sent a check for the past due September 1999 payment, as he did for the past due May 1999 premium payment, in addition to any authorization for future automatic withdrawals he wished to have set up. Plaintiff argues that Defendant must have received this authorization because Lincoln in fact began to draft Mr. Marzook's Commerce Bank account for the monthly premium payments. As acknowledged by Tonya Pierson, a billing analyst in Lincoln's customer service department, Lincoln drafted premium payments from Mr. Marzook's Commerce Bank account, number 44-4821-3, after March 8, 2000, which Ms. Pierson attributes to a "clerical error in drafting from that account." (Pierson Decl. ¶15). She states that Lincoln "erroneously arranged for electronic drafting from the Commerce Bank account" on the basis of a check for premium payment that Mr. Marzook enclosed with his January 1, 2000 application for reinstatement. (Id.). Ms. Pierson states that Lincoln also made the same mistake with respect to the policy premiums of Plaintiff Helal herself, mistakenly setting up drafting of premiums from her Commerce Bank account in 2000 on the basis fo a check for premiums sent with Ms. Helal's own reinstatement application. (Id. ¶¶ 20-22).

According to the Defendant, Mr. Marzook did not object to the subsequent lapsing of his policy. Id. at ¶ 16. The Defendant asserts that Mr. Marzook did not contact the Defendant via telephone or in writing to inform it that the policy should not have lapsed. Id. Reinstatement

Mr. Marzook completed an Application for Reinstatement in January 1, 2000. In this application, it is undisputed that Mr. Marzook misrepresented his health by failing to disclose his previous cancer diagnosis and treatments. See Lincoln's Statement of Material Facts, ¶¶ 21, 23; Plaintiff's Response to Lincoln's Material Facts, ¶¶ 21, 23. On the basis of Mr. Marzook's application and misstatements therein, Defendant reinstated Mr. Marzook's insurance policy. Rakoczy Decl., ¶ 5. The Defendant asserts that Lincoln would not have reinstated the policy had Mr. Marzook revealed the true state of his health. Knuth Decl., ¶¶ 10-11. According to the Defendant, when Mr. Marzook submitted his Application for Reinstatement, the payment was made by a check written from Mr. Marzook's Commerce Bank account. Lincoln's Statement of Material Fact, ¶ 26. Beginning in March 2000, Defendant drafted money for premium payments from that Commerce account. However, as mentioned above, the Defendant asserts that these automatic withdrawals were made in error, for it used the bank information from the Commerce check that accompanied the Reinstatement Application, an aberration from its normal practice. Id. Lincoln asserts that they never received the appropriate authorization from Mr. Marzook to draft payments from the Commerce Bank account. Id.

Disability Waiver

On May 1, 2000, Mr. Marzook applied for a waiver of premiums under the disability waiver rider to his policy. Mr. Marzook stated on the disability waiver application that his disability began on March 4, 2000, which is the date reinstatement of his policy became effective. The disability waiver was approved by the Defendant. Investigation and Rescission of Reinstatement

Mr. Marzook died on June 25, 2001 and the Plaintiff made a claim for benefits on that same day. Mr. Marzook's death occurred within two years of reinstatement of the policy, which made the policy contestable under its terms. The subsequent investigation by the Defendant revealed that Mr. Marzook misrepresented his health on the Reinstatement Application. As a result of this discovery, Defendant rescinded the policy, refunded all previously paid premium payments to the Plaintiff plus interest, and refused payment on Plaintiff's claim for benefits.

II. DISCUSSION

A. Standard of Review

According to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under the applicable rule of law. Id.

In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the nonmoving party by extending any reasonable favorable inference to that party. "The nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.

The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately has the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where the nonmoving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by `showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The nonmoving party "may not rest upon the mere allegations or denials of" its pleading and must present more than just "bare assertions, conclusory allegations or suspicions" to show the existence of a genuine issue. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

B. Motion of Defendant Lincoln Benefit Life Company

Defendant argues that the policy was appropriately rescinded and Plaintiff is not entitled to a final payout of benefits on the policy. Defendant asserts that Hossam Marzook allowed his life insurance policy to lapse after failing to remit a premium payment for September 1999 and that the subsequent reinstatement was based on misstatements by the insured denying his cancer. The Defendant argues that when the terms of an insurance contract are clear, the court shall enforce the contract as written rather than making a better contract for either party. Lincoln's Memorandum in Support of Summary Judgment at 17, (citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)(citations omitted)). The plain and unambiguous policy terms provided that the policy would lapse if the insured failed to make a premium payment within the 31-day grace period. Lincoln's Memorandum in Support of Summary Judgment at 18. When the policy lapses, the policy holder may apply for reinstatement within five years of the lapse date. When applying to reinstate, the policy holder must provide information to establish that he is still insurable in the stated premium class according to Lincoln's normal rules. When Mr. Marzook submitted his application for reinstatement, it is undisputed that he failed to reveal that he had been treated for brain cancer. The Defendant asserts that this misrepresentation constitutes a material misrepresentation and that Lincoln would not have reinstated Mr. Marzook's policy at the prior level had he revealed his brain cancer.

Lincoln asserts that an insurance policy may be contested within two years after reinstatement. Lincoln's Memorandum in Support of Summary Judgment, at 29-30. New Jersey law provides that an insurance policy may be contested within two years after reinstatement of a policy if there was fraud by the insured or misrepresentation of facts material to the reinstatement. See N.J.S.A. 17B:25-17. Furthermore, New Jersey caselaw has held that, if contested within the two year contestability period, an insurer may rescind a policy on the basis of fraud or material misrepresentations in the original or reinstatement application, even after the death of the insured. See Lincoln's Memorandum, at30-31 (citing Ledley v. William Penn. Insur. Co., 138 N.J. 627, 635, 637-638 (1995); Formosa v. Equitable Life Assur. Soc. of the U.S., 166 N.J. Super. 8, 13 (App. Div. 1979); Feder v. Banker's Nat. Life Ins. Co., 100 N.J. Super. 458, 461 (App. Div. 1969)). Because Mr. Marzook died within two years of the date of reinstatement, Lincoln could conduct an investigation to determine if there should be a payout on the policy.

C. Factual Dispute

There is a dispute between the Defendant and the Plaintiff as to whether the policy should have lapsed effective September 1999. The court must determine whether this dispute is a genuine issue of material fact.

The Plaintiff asserts that Mr. Marzook sent back the October 11, 1999 letter with the authorization to take premium payments from the couple's Commerce Bank account. The Defendant denies receipt of any such authorization or any correspondence from Mr. Marzook in response to their letter dated October 11, 1999.

This dispute over whether the letter and authorization were returned to the Defendant, and whether the policy lapsed is a material fact. A fact is "material" if it must be decided in order to resolve the substantive claim or defense. See Liberty Lobby, 477 U.S. at 248. In the instant case, if the policy did not lapse, then the Reinstatement Application may be considered null and void. Therefore, the Reinstatement Application's contents, and any falsity contained therein, would be irrelevant to Defendant's decision whether or not to make a payout on the policy. Additionally, if the policy never lapsed, the two-year contestability period would have expired in 1999, long before June 25, 2001, the date the Plaintiff made a claim for benefits under the policy. Therefore, the Defendant would not have conducted an investigation and could not have barred a payout on the policy based on any misrepresentations.

Because this Court believes the issue of whether the policy lapsed is a material one, the next concern is whether this factual dispute is genuine. Federal Rule of Civil Procedure 56 requires the moving party to "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. A dispute material fact is "genuine" if a reasonable jury could return a verdict for the non-moving party. See Liberty Lobby, 477 U.S. at 248.

The Defendant has submitted a number of declarations in support of its motion for summary judgment. In these declarations, Lincoln Benefit employees state that, after reviewing Lincoln Benefit's files relating to Mr. Marzook, they have determined that Mr. Marzook did not provide replacement remittance in response to Lincoln's October 11, 1999 letter and thus the policy rightfully lapsed. See Pierson Decl. ¶ 9; Rakoczy Decl. ¶ 13. Further, Plaintiff Helal, who has possession of her late husband's bank account records, has no proof that this premium for September 1999 was ever paid, by check or by authorized electronic transfer from that account. (Helal Dep. at 56-57). Furthermore, Lincoln states that it did not receive an authorization form from Mr. Marzook to draft premiums from any new bank account, including a Commerce account. Pierson Decl. ¶ 9. Therefore, Lincoln asserts that the policy clearly lapsed and was later reinstated by Mr. Marzook. Lincoln states that, even if the authorization had been received, the policy still would have lapsed because the "replacement remittance" must be in the form of a check. Lincoln's Reply Memorandum at 7-8. According to Lincoln, the ordinary definition of "remit" is to send money rather than to provide a document which authorizes future payments. Id.

Lincoln points out that the Plaintiff did not provide anything in discovery, such as an envelope, checking account ledger, cover letter or mailing receipt to substantiate that the letter and voided check *fn2 were sent. Lincoln's Statement of Material Facts, ¶ 17. Lincoln argues that Plaintiff has not provided sufficient evidence to prove that Mr. Marzook sent a letter and payment in response to Lincoln's letter dated October 11, 1999. Therefore, Lincoln asserts that the policy rightfully lapsed.

The Plaintiff asserts that Mr. Marzook did respond to Lincoln Benefit's October 11, 1999 letter and provided banking information to Defendant for the payment of premiums. Plaintiff's Response to Lincoln's Statement of Material Facts, ¶ 14-15. Plaintiff refers to Exhibit A in Tonya Pierson's Declaration, which is a copy of the October 11, 1999 letter and a copy of the voided check. This copy was provided by the Plaintiff and originally marked as Helal Exhibit 7, as noted above. This letter is signed by Mr. Marzook, dated October 15, 1999, and contains an authorization to draft from Marzook's Commerce Bank account. The Plaintiff testified that she does not know if her husband mailed this authorization letter. See Kirshner Decl., ¶ 4, Exh. B, Helal Transcript 56:10-17.

Relying on numerous cases, the Defendant asserts that the Plaintiff must provide certain evidence to create a presumption that mail was received. See Lincoln's Memorandum in Support of Summary Judgment, at 20-24 (citations omitted). The party asserting that a letter was mailed can establish presumption of receipt by showing that the mail had the correct address for the addressee, the correct amount of postage, the correct return address and that the mail was placed in the proper receptacle. Lincoln's Memorandum at 20 (citing Lamintia v. Howell Tp., 12 N.J. Tax 347, 352-353 (Tax Ct. 1992).

In addition, the Defendant cites Bankers v. Nat. Life Ins. Co. v. Cooper, 111 N.J. Super 264 (Ch. Div. 1970), a case with very similar facts to the instant case. In Bankers, the insured's beneficiary sought a payout on an insurance policy that had lapsed due to non-payment of premiums and later reinstated upon application by the insured. Id. at 267-268. After the insured's death, the insurer rescinded the policy when they discovered that the insured made material misrepresentations regarding his health on the reinstatement application. Id. The beneficiary sought to establish that the insurance policy should not have lapsed because the insured mailed the premium payment in a timely manner. Id. However, the insurer never received the payment and the insured did not protest the lapsing of the policy. Id.

In Bankers, the Court stated that, "Once the insurer requests, authorizes or acquiesces in the use of the mails in remitting premiums, it adopts the postal authorities as its agent and assumes the responsibility for postal negligence. Therefore, the risk of loss on a duly mailed premium payment is on the [insurer]." Id. at 272 (citations omitted). However, "payment of the premiums on a life insurance policy is a condition precedent to keeping the policy in force and must be proven by the claimant before recovery can be had." Id. The insured has the burden of showing that the premium payment was timely and properly mailed to the insurer. Id. This burden is not met unless the evidence demonstrates the offered hypothesis of proper and timely mailing as a rational inference. Id. "Mere guess or conjecture cannot be substituted for legal proof." Id. "Proofs which give equal support to each of two inconsistent inferences are insufficient." Id. at 275.

In response to Lincoln's assertions, the Plaintiff states that such documentation relating to the mailing of the letter is not required. Plaintiff's Response to Lincoln's Statement of Material Facts, ¶ 17. Furthermore, any such documentation, such as an envelope or a cover letter, would be in the possession of the Defendant. Id. The Plaintiff also states that because Mr. Marzook is deceased, Plaintiff cannot prove whether Mr. Marzook contacted Lincoln Life by telephone or in writing to protest the lapse. Id. at ¶ 16.

The Plaintiff points out that Lincoln Benefit began taking automatic withdrawals from Mr. Marzook's Commerce Bank Account in April 2000. Plaintiff's statement of Material Facts, ¶ 10. She asserts that this shows that Lincoln Benefit received authorization to do so in October 1999 when Mr. Marzook returned the letter. Plaintiff's Statement of Material Facts, ¶ 10.

As discussed above, Lincoln Benefit said they never received the letter and authorization in October 1999. Instead, Lincoln asserts that the automatic drafting from the Commerce account was a clerical error based on a check sent in with Mr. Marzook's Reinstatement Application. According to the Defendant, after Mr. Marzook's policy was reinstated, Lincoln drafted premium payments from Mr. Marzook's Commerce Bank. The declarations state that this was a clerical error and Lincoln never received any official authorization to do so. Pierson Decl. ¶ 15; Rakoczy Decl. ¶ 12. Lincoln received a check drawn from a Commerce account with Mr. Marzook's Reinstatement Application and its witnesses state that it set up the automatic drafting from the information on that Commerce Bank check. Pierson Decl. ¶ 15; Rakoczy Decl. ¶ 12.

If, however, Lincoln merely used Mr. Marzook's reinstatement checks as the basis for re-initiating the electronic payment of his premiums without an authorization, then it violated its own policies, and perhaps the applicable banking regulations, in doing so. Mr. Mel Rekoczy, Lincoln's Senior Claim Manager, testified that Lincoln's internal procedures required an authorization from the insured in order to commence the pre-authorized direct draft billing method with the banks. (Rakoczy Dep., Tr. at 17:11 to 18:8). Although, Lincoln's explanation of erroneous deduction is plausible, and may well carry the day when the case is tried to a jury, this Court finds that it is not the only plausible interpretation of these factual circumstances. A reasonable jury might instead infer that Lincoln did not violate its own policies by drafting electronic premium deductions from its insured's account without authorization, and may instead infer that Lincoln received Mr. Marzook's authorization form, used it to authorize monthly electronic deductions, and accepted this form of premium payments, even though it cannot locate that form today.

A judge's function in deciding a motion for summary judgment is not to weigh the evidence and determine the truth of the matter. Liberty Lobby, 477 U.S. at 249. Instead a judge's function is to determine whether there is a genuine issue for trial. Id. A judge need not make findings of fact. Id. at 250. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 252. A scintilla of evidence in support of the non-moving party's position is insufficient. See id.

The Plaintiff indeed has the burden of providing some type of evidence that leads to a rational inference that the authorization letter of October 15, 1999 was mailed. Although the question is close, a reasonable jury could find that Lincoln's reinstatement of the policy and electronic deduction of the premiums from the Commerce Bank account, proves that Marzook mailed the authorization and that Lincoln had the authority to electronically debit the Commerce Bank account to assure premium payments.

Defendant's final assertion - that Plaintiff cannot prove that the September 1999 premium was ever paid - requires little comment at this time. Lincoln reinstated the policy and accepted Marzook's payments as if the premiums were current. There is no evidence in the record that Lincoln somehow regarded Mr. Marzook's payment of premiums as having an unpaid past balance after reinstatement in 2000. If Lincoln did not receive the September 1999 premium payment, as reasonable jury could find, giving all rational inferences at this time to Plaintiff, that Mr. Marzook believed his October 15, 1999 authorization would be used to cure the one-month's premium due, and/or that Lincoln subsequently waived payment of the September 1999 premium when it reinstated the policy without a back-due premium. If so, Lincoln could not revive a claim of an unpaid premium after its insured's death when it abandoned such a claim during its insured's life. Although the direct and circumstantial evidence may, in this Court's view, weigh in favor of the Defendant, the possibility cannot be excluded that a reasonable jury would resolve the factual disputes in Plaintiff's favor as discussed above, and therefore the Court is constrained to deny Defendant's summary judgment motion.

III. Conclusion

For the reasons set forth above, Defendant's motion for summary judgment is denied. The accompanying Order is entered.

ORDER

This matter having come before the Court upon Defendant Lincoln Benefit Life's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; and the Court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion; and for good cause shown;

IT IS on this day of December, 2003, hereby

ORDERED that Defendant Lincoln Benefit Life's motion for summary judgment [Docket Item No. 10-1] be, and hereby is DENIED.

JEROME B. SIMANDLE United States District Court


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