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Smith v. United of Omaha Life Insurance

United States District Court, E.D. Wisconsin

August 3, 2016



          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On June 15, 2016, the defendant, United of Omaha Life Insurance (“United”), filed a motion for partial summary judgment, as well as a memorandum in support, statement of facts, and witness affidavits with exhibits attached thereto. (Motion, Docket #8; Memorandum in Support, Docket #9; Statement of Facts, Docket #15; Affidavit of Dennis Dickman, Docket #10; Affidavit of Cathy Hansen, Docket #11 with Exhibits attached as Docket #11-1, 12, 13, and 14). On July 14, 2016, the plaintiff, Lowanda Smith (“Smith”), filed a memorandum in opposition to the motion, along with a response to the statement of facts, a statement of additional facts, and affidavits of witnesses and counsel. (Memorandum in Opposition, Docket #17; Response to Statement of Facts and Statement of Additional Facts (“RSOF”), Docket #18; Affidavit of Gregory J. Cook, Docket #17-1; Affidavit of Lowanda Smith, Docket #17-2; Affidavit of John D. Rouse, Docket #19). On July 28, 2016, United filed a reply in support of its motion and a response to Smith’s statement of additional facts. (Reply, Docket #20; Response to Statement of Additional Facts (“RSAF”), Docket #21). The motion is now fully briefed, and for the reasons explained below, it will be granted.


         Federal Rule of Civil Procedure (“FRCP”) 56 provides the mechanism for seeking summary judgment. FRCP 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).


         Smith, in her response to United’s motion, seeks summary judgment on her breach of contract claim pursuant to FRCP 56(f). (Docket #17 at 7-10); Fed.R.Civ.P. 56(f) (“After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.”). FRCP 56(f) is a tool for the Court, not parties, to dispose of a case on summary judgment where it believes such action is appropriate. It may not be used to make an end-run around the Court’s dispositive motion deadline. See National Exchange Bank and Trust v. PetroChemical Systems, Inc., No. 11-CV-134, 2013 WL 1858621 *1 (E.D. Wis. May 1, 2013) (“Rule 56(f) exists largely for the convenience of the court, to save it from proceeding with trials that it can readily see are unnecessary. It did not create a substitute for a cross-motion to summary judgment.”).

         Smith’s request for summary judgment comes just under one month after that deadline. Further, she relies on evidence beyond that contained in United’s briefing, including a statement by the decedent Calvin Nutt’s (“Nutt”) treating physician, a statement from medical examiners from Milwaukee County, and affidavits from both Smith herself and from the agent who sold the insurance policy at issue. (Docket #17 at 8-10). Smith was fully equipped to present this evidence in her own motion for summary judgment by the dispositive motion deadline, which has been in place since December 10, 2015. (Docket #7 at 1). The Court will not permit her to sidestep the Court’s trial scheduling order or the requirements of FRCP 56 and Civil Local Rule 56. Smith’s request for summary judgment will not be considered.

         4. RELEVANT FACTS

         The relevant facts are largely undisputed, but the Court will note the parties’ disagreement on any facts where appropriate. In accordance with the standard of review, the facts are presented in a light most favorable to Smith. Nevertheless, in light of the above ruling, the Court will limit this narrative to the facts relevant to United’s claim for summary judgment.

         On April 4, 2014, Nutt and Smith submitted an application for life insurance to United. RSOF ¶ 1.[1] Smith was the policy owner and beneficiary. RSOF ¶ 2. John Rouse (“Rouse”), an independent insurance agent, actually sold them the policy and helped them fill out the application. RSAF ¶ 1. The application asked, inter alia, whether Nutt had ever been treated for chronic obstructive pulmonary disease (“COPD”), to which he answered “no.” RSOF ¶¶ 3-4. Rouse also reviewed other medical questions with Nutt, and Nutt stated that he had never been treated or even been told to seek treatment for COPD. RSAF ¶ 2.

         The application included an acknowledgment by which Nutt and Smith agreed that their answers to its questions were true and that incorrect answers would render the application void. RSOF ¶ 5. The parties disagree as to whether United would have issued any life insurance policy had Nutt answered “yes” to the COPD question.[2] RSOF ¶ 6. Nutt was interviewed by a United representative on April 7, 2014. RSOF ¶ 7. He was again asked about having a history of COPD, and he again answered in the negative. RSOF ¶¶ 8-9.

         The insurance policy (the “Policy”) was issued on May 3, 2014. RSOF ¶ 10. Due to non-payment of premiums, the Policy was cancelled. RSOF ¶¶ 11-12. Nutt and Smith resubmitted their application, and Nutt’s answer to the COPD question remained “no.” RSOF ¶ 13. The Policy was reissued on July 3, 2014. RSOF ¶ 14.

         On July 10, 2015, Smith submitted a claim under the Policy. RSOF ¶ 15. She included a copy of Nutt’s death certificate, indicating that he had died of a gunshot wound, and that it had been ruled a homicide. RSOF ¶ 16; RSAF ¶ 9. Because the Policy included a two-year contestability period, United began to review the Policy application and Nutt’s medical records. RSOF ¶ 17; RSAF ¶ 8. United could only obtain records from one of Nutt’s treating ...

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