Metlife Investors USA Insurance Company v. Steven L Lindsey et al

Filing 81

OPINION AND ORDER: DENYING 71 MOTION for leave to certify an issue for interlocutory appeal as to 69 Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief, Order on Motion for Hearing, filed by Executor Defendant Julie Kirby, Counter Claimant Julie Kirby, Estate of Melinda Lindsey, Counter Defendant Melinda Lindsey. Signed by Judge Rudy Lozano on 2/15/2018. (Copy mailed to pro se party)(lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

METLIFE INVESTORS USA INSURANCE
COMPANY,
Plaintiff,
vs.
ESTATE OF MELINDA LINDSEY,
STEVEN L. LINDSEY and JULIE
KIRBY, in her capacity as
Personal Representative of the
Probate Estate of Melinda
Lindsey,
Defendants,
________________________________
ESTATE OF MELINDA LINDSEY and
JULIE KIRBY, in her capacity as
Personal Representative of the
Probate Estate of Melinda
Lindsey,
Defendants/Counter-Plaintiffs,
vs.
METLIFE INVESTORS USA INSURANCE
COMPANY,
Plaintiff/Counter-Defendant.

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NO. 2:16–CV-00097

OPINION AND ORDER
This

matter

is

before

the

Court

on:

Defendants/Counter-

Plaintiffs’ Motion to Certify Issue for Interlocutory Appeal,
filed on December 22, 2017 (DE #71).

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For the reasons set forth

below, Defendants/Counter-Plaintiffs’ motion to certify issue for
interlocutory appeal is DENIED.

BACKGROUND
Plaintiff MetLife Investors USA Insurance Company (“MetLife”)
issued a term life insurance policy (“Policy”) to Melinda Lindsey
(“Lindsey”) in 2014.

After Lindsey’s death in 2015, MetLife found

what it believes to be material misrepresentations and omissions
in Lindsey’s application for the Policy. MetLife denied the claims
made for death benefits, and refunded the Policy premiums to
Defendants/Counter-Plaintiffs Estate of Lindsay and Julie Kirby,
in her capacity as personal representative of the probate estate
of Lindsey (together, “Estate”), in July 2015.

In January 2016,

the Estate returned the premium refund check to MetLife, and
notified MetLife that it intended to contest the denial of the
Policy.

In March 2016, MetLife filed the instant lawsuit seeking

rescission of the Policy.
On June 12, 2017, the Estate moved for summary judgment on
the grounds that MetLife failed to properly rescind the Policy by
retaining the insurance premiums when it initiated the suit, and
by not depositing the premiums with the Court.

(DE #41.)

MetLife

opposed the motion and deposited the premiums with the Court.

The

Court denied the Estate’s motion for summary judgment on December
4, 2017.

(DE #69.)

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The Estate filed the instant motion for leave to certify issue
for interlocutory appeal on December 22, 2017.

(DE #71.)

It

claims that the denial of its motion for summary judgment is
appropriate for interlocutory review because the Court incorrectly
relied on Gary National Bank v. Crown Life Insurance Company, 392
N.E.2d 1180 (Ind. Ct. App. 1979), to find that MetLife’s second
tender of premiums was timely.

The motion has been fully briefed

and is ripe for review.
DISCUSSION
The instant motion seek permission to appeal prior to entry
of a final judgment, otherwise known as an interlocutory appeal.
Interlocutory appeals are governed by Title 28 U.S.C. section
1292(b), which provides:
When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall
be of the opinion that such order involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in
writing in such order.
28

U.S.C.

§

1292(b).

The

Seventh

Circuit’s

criteria

for

interlocutory appeals is: (1) there must be a question of law, (2)
it must be controlling, (3) it must be contestable, (4) its
resolution must promise to speed up the litigation, and (5) the
petition to appeal must be filed in the district court within a
reasonable time after the order sought to be appealed.

‐3‐ 

Ahrenholz

v. Bd. of Tr. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000).
“Unless all these criteria are satisfied, the district court may
not and should not certify its order to us for an immediate appeal
under section 1292(b).”

Id. at 676.

Due to its dispositive nature, the Court first considers
whether there is a “contestable” question of law.
contestability,

the

court

must

examine

“the

In determining

strength

of

the

arguments in opposition to the challenged ruling,” which includes
“examining whether other courts have adopted conflicting positions
regarding the issue of law proposed for certification.”

In re

Bridgestone/Firestone, Inc. Tires Prods. Liab. Lit., 212 F. Supp.
2d 903, 909-10 (S.D. Ind. 2002)  (citations omitted); see Carlson
v. Brandt, No. 97 C 2165, 1997 WL 534500, at *6 (N.D. Ill. 1997)
(“[I]t is beyond dispute that interlocutory appeal is unjustified,
inefficient, and unnecessary when the movant has not set forth
substantial

conflicting

decisions

controlling issue of law”).

regarding

the

claimed

The Estate argues that the Court

incorrectly applied Gary National to find that MetLife’s second
tender of the premiums was timely.

In Gary National, the Indiana

Court of Appeals found that the insurer’s second tender of premiums
was timely where it was made prior to any pretrial or trial on the
merits.

392 N.E.2d at 1182.

The Estate attempted to distinguish

Gary National based the difference in the timing of the Estate’s
return of the first tender of premiums, and relied upon case law

‐4‐ 

addressing the timeliness of an insurer’s tender of premiums in
the first instance.

In its order denying summary judgment, the

Court noted that Gary National was the only case cited by the
Estate that addressed the timeliness of an insurer’s second tender
of premiums, and that Gary National distinguished case law cited
by the Estate.

(DE #69 at 14.)

See Gary Nat. Bank, 392 N.E.2d at

1182 (distinguishing Prudential Insurance Co. v. Smith, 108 N.E.2d
61 (Ind. 1952), and other Indiana cases because they did not
address the timeliness of a “second tender” to the court).

The

Estate has not directed the Court to any other court which has
expressed a difference of opinion on the timeliness of an insurer’s
second tender of premiums.

Thus, the Estate has failed to prove

that there is a substantial conflict on this issue.

See Webster

v. Ctr. for Diagnostic Imaging, Inc., No. 116CV02677JMSDML, 2017
WL 5598286, at *3 (S.D. Ind. Nov. 21, 2017) (finding no contestable
issue for the purposes of interlocutory appeal where defendants
failed to present any conflicting precedent).
The Estate has also failed to meet its burden of showing that
exceptional

circumstances

justify

departure

from

the

Seventh

Circuit’s general policy of postponing appellate review until
after the entry of final judgment.
676.

See Ahrenholz, 219 F.3d at

Accordingly, this Court exercises its discretion to deny the

request for interlocutory appeal.

See Swint v. Chambers County

Comm'n, 514 U.S. 35, 47 (1995) ("Congress thus chose to confer on

‐5‐ 

district

courts

first

line

discretion

to

allow

interlocutory

appeals."); Kuzinski v. Schering Corp., 614 F. Supp. 2d 247, 249
(D. Conn. 2009) ("Even where [the criteria for an interlocutory
appeal] are met, the Court retains discretion to deny permission
for interlocutory appeal.").

CONCLUSION
For

the

reasons

set

forth

above,

Defendants/Counter-

Plaintiffs’ motion to certify issue for interlocutory appeal (DE
#71) is DENIED.

DATED: February 15, 2018

/s/ RUDY LOZANO, Judge
United States District Court

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