Landrum v. Conseco Life Insurance Company et al
Filing
134
MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's Motion 100 for Partial Summary Judgment; granting in part and denying in part Defendant's Motion 102 for Summary Judgment; granting Defendant's Daubert M otion 104 to Exclude Testimony of G. Richard Thompson; denying Plaintiff's Motion 107 for Sanctions and to Strike; and denying Plaintiff's Motion 119 for Leave to File Additional Pages. Signed by District Judge Halil S. Ozerden on 11/13/2013. (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
PATRICIA K. LANDRUM
v.
PLAINTIFF
Civil Action No. 1:12cv5-HSO-RHW
CONSECO LIFE INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S DAUBERT MOTION TO EXCLUDE TESTIMONY OF G.
RICHARD THOMPSON; DENYING PLAINTIFF’S MOTION FOR
SANCTIONS AND TO STRIKE/OBJECTION TO AFFIDAVIT, EXPERT
OPINIONS, OTHER EXHIBITS, AND ARGUMENTS SUBMITTED IN
SUPPORT OF CONSECO’S MOTION FOR SUMMARY JUDGMENT; AND
DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE ADDITIONAL
PAGES OF MEMORANDUM BRIEFS IN SUPPORT OF PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT are five Motions: (1) Plaintiff Patricia K. Landrum’s
Motion [100] for Partial Summary Judgment; (2) Defendant Conseco Life
Insurance Company’s Motion [102] for Summary Judgment; (3) Conseco’s Daubert
Motion [104] to Exclude Testimony of G. Richard Thompson; (4) Ms. Landrum’s
Motion [107] for Sanctions and to Strike/Objection to Affidavit, Expert Opinions,
Other Exhibits, and Arguments Submitted in Support of Conseco’s Motion for
Summary Judgment; and (5) Ms. Landrum’s Motion [119] for Leave to File
Additional Pages of Memorandum Briefs in Support of her Motion [100][101] for
Partial Summary Judgment. The Motions [100][102][104][107][119] have been
fully briefed.
After consideration of the pleadings, the record, and relevant legal
authorities, and for the reasons discussed below, the Court finds that Ms.
Landrum’s Motion [100] for Partial Summary Judgment and Conseco’s Motion
[102] for Summary Judgment should each be granted in part and denied in part,
Conseco’s Daubert Motion [104] should be granted, Ms. Landrum’s Motion [107] for
Sanctions and to Strike should be denied, and Ms. Landrum’s Motion [119] for
Leave to File Additional Pages should be denied.
Conseco correctly calculated the death benefit and interest owed to Ms.
Landrum as the primary beneficiary of her ex-husband’s life insurance policy.
Conseco is entitled to summary judgment in part on these issues. However, Ms.
Landrum is entitled to summary judgment in part in that Conseco did breach the
terms of the life insurance policy by delaying payment. Ms. Landrum’s claim for
extra-contractual compensatory damages will proceed to trial. Ms. Landrum’s
claims for fraudulent misrepresentation, negligent misrepresentation, conversion,
unjust enrichment, breach of the duty of good faith and fair dealing, and breach of
fiduciary duty will be dismissed. Ms. Landrum’s claim for punitive damages is not
ripe, and Conseco’s request to dismiss Ms. Landrum’s punitive damages claim will
be denied without prejudice at this time.
I. BACKGROUND
Lamar Life Insurance Company issued a flexible premium adjustable life
insurance policy (“the Policy) to John L. Landrum in 1993. Policy [100-1]. Mr.
Landrum named his then-wife Plaintiff Patricia K. Landrum as the Policy’s
2
primary beneficiary. Id. at pp. 25-28. Lamar Life Insurance Company merged into
Conseco Life Insurance Company effective December 31, 1998, and Conseco
assumed “all liability” for the Policy “as if it had been issued originally by Conseco
Life Insurance Company.” Policy Endorsement [100-1]; Letter [100-14]. Ms.
Landrum abandoned the Landrums’ marriage in 1996. In 1999, Mr. Landrum was
granted a divorce from her on grounds of desertion. Final Decree of Divorce [1008]; Dep. of Patricia Landrum [102-13] at p. 3. Despite the divorce, Ms. Landrum
remained the primary beneficiary of the Policy.
On May 25, 2011, Mr. Landrum died from multiple gunshot wounds. Death
Certificate [100-6]. On May 27, 2011, Conseco became aware that Mr. Landrum
may have died. Def.’s Resps. to Interrogs.[100-26] at p. 2; AWD History [100-2].
Ms. Landrum’s grandson, who is Mr. Landrum’s former step-grandson, has been
charged with murdering Mr. Landrum and is currently awaiting trial. Press
Articles [102-15]; Dep. of Patricia Landrum [102-13] at p. 11. Ms. Landrum was
not aware that she remained the primary beneficiary of the Policy until she
received a letter from Conseco on or around October 5, 2011, requesting that she
complete an enclosed claim form and provide a certified copy of Mr. Landrum’s
death certificate. Letter [100-4]. Ms. Landrum completed the claim form and
submitted it to Conseco, along with the certified death certificate, on October 14,
2011.
Because Ms. Landrum identified herself as Mr. Landrum’s ex-wife and
3
informed Conseco that Mr. Landrum died due to “gun shots to the head,” Conseco
“began an investigation for due proof as to the proper recipient of the funds.”
Def.’s Resps. to Interrogs. [102-6] at p. 13. Ms. Landrum eventually filed suit
against Conseco on January 9, 2012, to recover the proceeds, and Conseco filed an
Answer and Complaint for Interpleader on January 19, 2012. Conseco tendered
$50,507.53 to Ms. Landrum on October 1, 2012. Def.’s Resps. to Interrogs. [100-26]
at p. 2; Def.’s Resp. [116] at p. 4.
Ms. Landrum maintains that Conseco has not tendered the full amount
owed to her under the Policy and that it has withheld payment in bad faith.
Conseco maintains that it has tendered to Ms. Landrum the full amount that she
is owed, namely the Policy’s “specified amount” of $50,000.00, plus interest at the
rate of 0.75% for a total of $50,507.53. Correspondence [100-20]. Ms. Landrum
contends that she is owed the accumulation value of the Policy, which the parties
agree is $6,786.88, multiplied times 122 for a total of $827,999.36, plus interest at
a rate of four percent compounded annually. Pl.’s Mot. [100] at pp. 4-5. Ms.
Landrum’s Complaint advances claims for breach of contract, bad faith breach of
contract, negligent misrepresentation, conversion, breach of the duty of good faith
and fair dealing, breach of the duty to conduct a timely and through investigation,
unjust enrichment, negligence and/or gross negligence, breach of fiduciary duty,
and fraud. Pl.’s Am. Compl. [8] at p. 8, ¶ 23.
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II. DISCUSSION
A.
Ms. Landrum’s Motion [100] for Partial Summary Judgment and Conseco’s
Motion [102] for Summary Judgment
1.
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “[i]f 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). “A fact is ‘material’ if its resolution in favor of one party might affect
the outcome of the lawsuit under governing law. An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The purpose of
summary judgment is to isolate and dispose of factually unsupported claims or
defenses. Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 560 (5th
Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
In reviewing the evidence, factual controversies are to be resolved in favor of
the nonmovant, “but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). The Court does not “in the absence of
any proof, assume that the nonmoving party could or would prove the necessary
facts.” Id. To rebut a properly supported motion for summary judgment, the
opposing party must show, with “significant probative evidence,” that there exists
5
a genuine issue of material fact. Hamilton, 232 F.3d at 477. If the evidence is
merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co, 671
F.3d 512, 516 (5th Cir. 2012)(citing Anderson, 477 U.S. at 249). “[M]ere conclusory
allegations are not competent summary judgment evidence, and such allegations
are insufficient, therefore, to defeat a motion for summary judgment.” Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). “The court has no duty to search the
record for material fact issues.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th
Cir. 2010). “Rather, the party opposing summary judgment is required to identify
specific evidence in the record and to articulate precisely how this evidence
supports his claim.” Id.
2.
Mississippi Substantive Law Applies
Because jurisdiction of this case is based upon diversity of citizenship,
Mississippi substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
“The law pertaining to interpretation and enforcement of insurance policies is wellestablished.” S. Healthcare Servs., Inc. v. Lloyd’s of London, 110 So. 3d 735, 743
(Miss. 2013). “When the words of an insurance policy are plain and unambiguous,
the court will afford them their plain, ordinary meaning and will apply them as
written.” Id. (internal citation omitted). “Mere disagreement as to the meaning of
a policy provision does not render the policy ambiguous.” Id. at 744. “A policy, or
provision therein, is ambiguous if it can be logically interpreted in two or more
6
ways.” Id. (internal citation omitted). “The policy must be considered as a whole,
considering all relevant portions together.” Id. (internal citation omitted).
3.
Contract-Based Claims
a.
The Death Benefit Due Ms. Landrum Pursuant to the Policy
The Policy permits the beneficiary to receive the greater of two amounts: the
Policy’s “specified amount” of $50,000 or the Policy’s “accumulation value on the
date of death times the Death Benefit Multiple shown on the Schedule.” Policy
[102-2] at pp. 7-8. Conseco submits that the amount owed to Ms. Landrum under
the Policy is the greater “specified amount” of $50,000, since there is no dispute
that the accumulation value is $6,786.88. Def.’s Tender Letter [100-20]. Ms.
Landrum contends that she is entitled to $827,999.36, which is the Policy’s
accumulation value at the time of Mr. Landrum’s death, $6,786.88, multiplied by
122. Pl.’s Mot. [100] for Partial Summ. J. at pp. 4-5.
Conseco contends that Ms. Landrum’s interpretation of the amount owed is
grounded in an absurd reading of the Policy on the basis of a missing decimal point
contained in a poor reproduction duplicate copy of a Policy issued in 1993, which
Conseco retrieved from microfilm and produced during this litigation. Def.’s Mem.
[103] at p. 9. The original Policy issued to Mr. Landrum is not available and is
believed by Ms. Landrum to have been destroyed during Hurricane Katrina, along
with Mr. Landrum’s other household belongings. Dep. of Patricia Landrum [10213] at pp. 4-5.
7
Mr. Landrum was 64 years old at the time of his death. Conseco asserts
that it is obvious that the original Policy identified a multiplier of “1.22" for an
attained age of 64, because the duplicate copy shows a space between the “1" and
“22.” Id. Def.’s Mem. [103] at pp. 2-3. Conseco maintains, however, that the
missing decimal point is irrelevant because Mr. Landrum’s attained age at death
was 63, as opposed to his calendar age of 64, and the Policy is clear that the
multiplier for an attained age of 63 is “1.24." Id. Because $6,786.88 multiplied
times either 1.22 or 1.24 is less than $50,000, Conseco submits that, regardless of
Mr. Landrum’s attained age, Ms. Landrum is owed the greater amount of the
specified amount of the Policy, which is $50,000. Def.’s Resp. [116] at p. 7.
The Policy’s “Death Benefit Multiples” are contained in a Schedule, which
appears in the duplicate copy of the Policy as follows:
Attained
Attained
Attained
Attained
Age/Factor
Age/Factor
Age/Factor
Age/Factor
0-40
2.50
54
1.57
68
1.17
82
1.05
41
2.43
55
1.50
69
1.16
83
1 05
42
2.36
56
1.46
70
1.15
84
1.05
43
2.29
57
1 42
71
1.13
85
1.05
44
2.22
58
1.38
72
1.11
86
1 05
45
2.15
59
1.34
73
1.09
87
1.05
46
2.09
60
1.30
74
1.07
88
1 05
47
2.03
61
1.28
75
1.05
89
1.05
8
48
1.97
62
1.26
76
1.05
90
1.05
49
1.91
63
1.24
77
1.05
91
1.04
50
1.85
64
1 22
78
1 05
92
1 03
51
1.76
65
1.20
79
1 05
93
1 02
52
1.71
66
1 19
80
1.05
94
1.01
53
1.64
67
1 18
81
1 05
Schedule [100-1] (emphasis added).
Of the 55 multipliers listed in the Schedule, all contain a decimal point
between the first and second number with the exception of eleven, and those
eleven all contain a space between the first and second numbers, where decimal
points existed in the original Policy. It is Ms. Landrum’s position that the
Schedule intentionally omits decimal points for these eleven multipliers and
apparently that the blank spaces in these eleven multipliers were also intended
and have no meaning. Pl.’s Mem. [101] at pp. 4-5. Ms. Landrum’s theory would
require the Court to interpret the Policy in such a way as to allow a person who
dies at an attained age of 63 to receive 124% of the accumulation value of the
Policy, while a person who dies at an attained age of 64 receives 12,200% of the
accumulation value of the Policy. Id. at pp. 4-9. Ms. Landrum makes this
argument despite having been provided a copy of the Specimen Policy during
discovery. The Specimen Policy is the form from which Mr. Landrum’s Policy was
created and clearly shows a decimal between the first and second number of every
multiplier. Specimen Policy [102-4].
9
Ms. Landrum’s contention that she is entitled to $827,999.36 is a patently
unreasonable reading of the Policy and would transform a life insurance policy into
a lottery ticket. The accumulation value of the Policy, $6,786.88, whether
multiplied by either 1.22 or 1.24, is less than the $50,000 “specified amount” of the
Policy. Ms. Landrum is therefore entitled to a death benefit of $50,000, and
Conseco has tendered this amount. The Policy is not ambiguous and cannot
logically be interpreted in any other way. A plain and reasonable reading of the
Policy and Schedule as a whole can only lead to the conclusion that Conseco has
properly calculated the death benefit and that Conseco is entitled to summary
judgment on this point.
b.
The Interest Due Ms. Landrum Pursuant to the Policy
The Policy provides that “[i]f no settlement option is in effect at the
Insured’s death, the beneficiary may choose a settlement option.” Policy [100-1] at
p. 16:
23.
Options
The guaranteed interest rate for all options is 4%. We may
allow excess interest at our discretion.
(a)
Option 1.
FIXED AMOUNT OR PERIOD – We
will pay an income of a fixed amount or
an income for a fixed period not
exceeding 30 years. Refer to Option 1
Table to determine the number of fixed
amount payments or the amount of
each fixed period payment. On request,
we will furnish income information not
shown in the tables.
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(b)
Option 2.
LIFE INCOME – We will pay an
income during the payee’s lifetime. A
minimum guaranteed period may be
used, as shown in the Option 2 Table.
Payments will be in an amount we
determine, but not less than shown in
the table. On request, we will furnish
minimum income information for ages
not shown in the table.
(c)
Option 3.
CASH – We will hold the proceeds
while the payee is alive and pay the
interest to the payee. At the payee’s
death, the amount on deposit will be
paid in a lump sum.
24.
SPECIAL BENEFIT ARRANGEMENT
A specially designated benefit option may be arranged with
our approval.
25.
CONDITIONS AFFECTING OPTIONS
In order to elect an option, a supplementary contract
setting forth the payee and terms of any settlement option
elected must be issued in exchange for a release or our
liability under this policy.
(a)
(b)
by the owner, during the lifetime of the Insured; or
by the beneficiary after the death of the Insured, if
you had made no election.
26.
OPTIONS AT DEATH
At the death of the payee, unless otherwise directed in the
election of the option; we will pay the commuted value,
based on interest at the rate of 4% per year, or such higher
rate as we may declare from time to time, of:
(a)
any remaining unpaid installments under Option 1;
or
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(b)
any remaining unpaid guaranteed installments
under Option 2.
Id. at pp. 16-17.
No settlement option was selected prior to Mr. Landrum’s death, and
Conseco’s claim form directed Ms. Landrum to elect a settlement option. Claim
Form [100-6] at p. 2. The Claim Form provided:
C.
Settlement Options
The Conseco BenefitNOW Account® is our primary method
of paying insurance proceeds over $5000. BenefitNOW is
an interest bearing draft account. By simply writing a
draft you have immediate access to your funds whenever
you need them. BenefitNOW may not be available in all
states or some products. If a BenefitNOW cannot be
established, a single check will be issued to you. Please see
enclosed BenefitNOW insert.
Election of settlement option if no election made by policy
owner was in effect during insured’s lifetime.
Settlement Option/Manner of Payment _______________
Duration (if Applicable) _____________________________
Dollar Amount _____________________________________
Id.
Ms. Landrum wrote “BenefitNow” in the space provided for benefit election.
Id. She testified at her deposition that she did so because she understood
“BenefitNOW” to mean that she would immediately receive the entire death
benefit. Dep. of Patricia Landrum [100-11] at pp. 2-3. Ms. Landrum stated that
there was no “enclosed BenefitNOW insert” and that she did not call Conseco
12
before electing “BenefitNOW.” Id. She testified that she requested a copy of the
Policy from Conseco the first time that she spoke over the phone with the primary
claims adjuster but was advised that “they didn’t do that.” Dep. of Patricia
Landrum [100-11] at p. 7. Conseco disputes that it refused Ms. Landrum a copy of
the Policy but has submitted no proof on this point. Def.’s Resp. [116] at p. 20.
Ms. Landrum now submits that the Policy “guarantee[s] a minimum interest
rate on all settlement options of 4% – and grants the insurer the discretion to
increase the amount of interest at its option. The Policy does not allow the
insurer to try to trick the insured into choosing a settlement option that provides
less than 4% interest.” Pl.’s Mem. [101] at p. 10 (emphasis supplied). Ms.
Landrum asserts that Conseco “offered BenefitNow as the sole available
Settlement Option while refusing to provide [her] a copy of the Policy and/or advise
her of the Settlement Options [listed in the Policy].” Pl.’s Resp. [109] at p. 16.
Conseco did not offer BenefitNOW as the “sole available Settlement
Option.” The claim form references “Settlement Options” and “Duration,” which is
not applicable to the BenefitNOW settlement option. Furthermore, Ms. Landrum’s
interpretation of the claim form and Policy ignores the fact that the Options listed
in Paragraph 23 of the Policy are structured payment plans, none of which would
permit immediate access to the full death benefit. Policy [100-1] at pp. 16-17.
Immediate access to the full death benefit, however, is what Ms. Landrum testified
that she wanted and what she continues to seek. She requests that the Court
13
order Conseco to pay her “forthwith” $827,999.36 plus four percent interest
compounded annually. Pl.’s Mem. [101] at pp. 9-10. This is not a settlement
option enumerated in the Policy.
The Policy does, however, clearly allow Conseco to approve “[a] specially
designated benefit option.” Policy [100-1] at p. 17. Conseco elected to provide
BenefitNOW, and allow a beneficiary “immediate access [to his or her] funds.”
Claim Form [100-6] at p. 2. The Policy guarantees a four percent interest rate for
the structured settlement options enumerated in the Policy but does not mandate
that a “specially designated benefit option” be paid at an interest rate of four
percent. The Policy does not speak to the interest rate of a “specially designated
benefit option” but only provides that “[a] specially designated benefit option may
be arranged with our approval.” Policy [100-1] at p. 17. Ms. Landrum cannot have
both her “benefit now” and a four percent interest rate. Conseco has tendered the
requisite interest owed to Ms. Landrum under the election she selected. Ms.
Landrum has cited no authority in support of her position that she should not be
bound by her election because she did not have a copy of the Policy or an insert
referenced on the claim form. “Under Mississippi law, a contracting party is under
a legal obligation to read a contract before signing it, and a person is charged with
knowing the contents of any document that he executes.” S. Healthcare Servs.,
Inc., 110 So. 3d at 746 (internal citation omitted). No material facts are in dispute
on the question of interest, and Conseco is entitled to summary judgment on this
14
point.
c.
Conseco’s Delay in Payment
The Policy provides that Conseco “will pay the death benefit as soon as we
get proof that the Insured has died while this policy is in force.” Policy [102-2] at p.
7. “[S]ettlement will be made within two (2) months after receipt of due proof of
death.” Id. at p. 17. There is no dispute that Ms. Landrum has always been the
named primary beneficiary of the Policy. It is also beyond dispute that Ms.
Landrum submitted a completed claim form and Mr. Landrum’s certified death
certificate to Conseco on October 14, 2011, but Conseco did not tender the proceeds
until nearly one year later, on October 1, 2012. Def.’s Resps. to Interrogs. [100-26]
at p. 2; Def.’s Resp. [116] at p. 4.
Given the undisputed facts in this case, if Conseco did not have a reasonably
arguable basis to delay the payment of the proceeds to Ms. Landrum, then Conseco
has materially breached the terms of the Policy and is subject to liability for extracontractual damages. James v. State Farm Mut. Auto. Ins. Co., 719 F.3d 447, 45153 (5th Cir. 2013). “[A]lthough Mississippi courts are skeptical of such claims, they
have permitted claimants to recover damages on bad faith claims when resolution
of an insurance claim is merely delayed rather than ultimately denied.” James,
719 F.3d at 451 (collecting cases). “Inordinate delays in processing claims and a
failure to make a meaningful investigation have combined to create a jury question
on bad faith.” Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir.
15
2008)(citing Lewis v. Equity Nat. Life Ins. Co., 637 So. 2d 183, 187-88 (Miss. 1994)).
To recover punitive damages for delay of payment on an insurance contract,
a plaintiff must demonstrate that (1) the insurer lacked a reasonably arguable
basis for delaying payment, either in fact or law, and (2) the insurer acted with
malice or gross negligence in disregard of the insured’s rights. U.S. Fid. & Guar.
Co. v. Wigginton, 964 F.2d 487, 492 (5th Cir. 1992); Caldwell v. Alfa Ins. Co., 686
So. 2d 1092, 1095-96 (Miss. 1996); see Miss. Code Ann. § 11-1-65(1)(a). The first
prong requires proof by a preponderance of the evidence, while the second prong
requires proof by clear and convincing evidence. James, 719 F.3d at 453. The
question of whether the insurer had an arguable basis for denying a claim is an
issue of law for the Court. Wigginton, 964 F.2d at 492.
“To establish a claim for punitive damages in the context of a bad faith
claim, a party must first establish her entitlement to compensatory damages.” Id.
at 452. The trial judge must first decide, as a matter of law, whether the insurer
lacked a reasonably arguable basis for denying the claim. Id. “Then, the trier of
fact determines whether compensatory damages are to be awarded and in what
amount.” Id. (citing Miss. Code Ann. § 11-1-65(1)(b)). “If and only if the trier of
fact does award compensatory damages, then ‘the court shall promptly commence
an evidentiary hearing to determine whether punitive damages may be considered
by the same trier of fact.” Id. (citing Miss. Code Ann. § 11-1-65(1)(c)).
Insurers who are not liable for punitive damages may nonetheless be liable
16
for extra-contractual compensatory damages, or intermediate relief, where their
decision to delay payment is without a reasonably arguable basis but is not
sufficiently egregious to justify the imposition of punitive damages. Essinger v.
Liberty Mut. Fire Ins. Co., 534 F.3d 450, 451 (5th Cir. 2008); Spansel v. State Farm
Fire and Cas. Co., 683 F. Supp. 2d 444, 447 (S.D. Miss. 2010). Extra-contractual
compensatory damages include reasonable attorneys’ fees, court costs, other
economic damages, inconvenience, and emotional distress. James, 719 F.3d at 45253; Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295 (Miss. 1992). This
intermediate relief “between simply receiving incidental costs of suit (but not
attorneys’ fees and other damages), and getting punitive damages” recognizes that
an insurance company’s financial default is often less than the cost to the insured
of judicially forcing a correct payment. Essinger, 529 F.3d at 270. According to the
Mississippi Supreme Court in Veasley:
[a]pplying the familiar tort law principle that one is liable
for the full measure of the reasonably foreseeable
consequences of her actions, it is entirely foreseeable by an
insurer that the failure to pay a valid claim through the
negligence of its employees should cause some adverse
result to the one entitled to payment. Some anxiety and
emotional distress would ordinarily follow, especially in the
area of life insurance where the loss of a loved one is
exacerbated by the attendant financial effects of that loss.
Additional inconvenience and expense, attorneys fees and
the like should be expected in an effort to have the
oversight corrected. It is not more than just that the
injured party be compensated for these injuries.
610 So. 2d at 295.
17
(i)
Whether Conseco Lacked a Reasonably Arguable Basis for
Delaying Payment, Either in Fact or Law
Under Mississippi law, insurers have a duty “to perform a prompt and
adequate investigation and make a reasonable, good faith decision based on that
investigation.” Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 535 (Miss. 2003).
“An insurance carrier’s duty to promptly pay a legitimate claim does not end
because a lawsuit has been filed against it for nonpayment.” Gregory v.
Continental Ins. Co., 575 So. 2d 534, 541 (Miss. 1990). “[C]onducting a prompt and
adequate investigation provides a legitimate basis for payment delay.” James, 719
F.3d at 454. The Policy provides:
The beneficiary receives the death benefit of this policy
upon death of the Insured. The beneficiary is so named in
the application unless you request a change.
You may change the beneficiary by notice to us at any time
before the Insured dies. We must receive written notice of
this change on our forms. When the change is received it
will take effect on the date notice is received by us. We will
not be liable for any payments we make or actions we take
before the change is recorded.
Policy [100-1] at p. 15.
The Policy states that Conseco “will pay the death benefit as soon as we get
proof that the Insured has died while this policy is in force.” Policy [102-2] at p. 7.
It provides that “settlement will be made within two (2) months after receipt of due
proof of death.” Id. at p. 17.
Conseco admits that Mr. Landrum designated Ms. Landrum as the primary
18
beneficiary when the Policy was issued in 1993 and that “it does not have any
knowledge that the beneficiary of the subject insurance policy was ever changed in
accordance with the provisions of the policy.” Def.’s Resps. to Interrogs. [100-24] at
p. 4; see Def.’s Resps. to Requests for Admission [100-23] at p. 3 (admitting that it
did not receive written notice of a change of primary beneficiary). Ms. Landrum
submitted a completed claim form and certified death certificate to Conseco on
October 14, 2011. Def.’s Resps. to Interrogs. [100-26] at p. 2. Pursuant to the
terms of the Policy, Conseco ordinarily should have settled the claim within two
months after October 14, 2011.
Conseco has maintained throughout this litigation that the manner of Mr.
Landrum’s death factored into its decision to delay payment to Ms. Landrum.
Def.’s Mem. [35] at p. 2; Def.’s Reply [37] at p. 3; Def.’s Mem. [103] at p. 14; Def.’s
Resp. [116] at p. 21. However, by October 24, 2011, within ten days of receiving
Ms. Landrum’s claim form and Mr. Landrum’s death certificate, Conseco knew
that law enforcement had ruled Ms. Landrum out as a suspect in Mr. Landrum’s
death. Email [100-10]. Conseco had no reasonably arguable basis to delay
payment on grounds that, under Mississippi law, a beneficiary cannot recover the
proceeds of a life insurance policy where he or she wilfully takes the life of the
insured. Dill v. Southern Farm Bureau Life Ins. Co., 797 So. 2d 858, 864 (Miss.
2001).
Conseco also questioned Ms. Landrum’s entitlement to the proceeds because
19
she was the ex-wife of Mr. Landrum. By letter dated October 24, 2011, Conseco
informed Ms. Landrum that her “claim will remain pending” due to a
“requirement[]” that she submit “[a] copy of the divorce decree and property
settlement agreement between John Landrum and Patricia Landrum.”
Correspondence [102-11]. The terms of the Policy do not require a beneficiary who
is an ex-spouse to provide a divorce decree or property settlement agreement as a
condition of receiving benefits. Nevertheless, the Policy allowed Conseco two
months from October 14, 2011, to investigate and settle the claim.
Ms. Landrum cooperated with Conseco and promptly provided it with a copy
of the Divorce Decree on November 9, 2011. Pl.’s Mot. [100] at p. 7; Def.’s Resp.
[116] at pp. 17, 20; Divorce Decree [100-8]. Ms. Landrum did not submit a
property settlement agreement to Conseco because the Landrums did not execute a
property settlement agreement in connection with their divorce. Pl.’s Mot. [100] at
p. 7; Dep. of Patricia Landrum [100-11] at pp. 5-6. Ms. Landrum testified that she
notified Conseco by telephone on at least two different occasions that there was no
property settlement agreement. Dep. of Patricia Landrum [100-11] at pp. 5-6. A
notation in Conseco’s claims file confirms one such conversation on November 28,
2011. Dep. of Patricia Landrum [100-11] at pp. 5-6; AWD History Note [100-30].
Conseco did not tender the Policy’s proceeds to Ms. Landrum after she
informed its claims adjustor that there was no property settlement agreement.
Instead, on November 28, 2011, a Conseco claims adjustor advised Ms. Landrum to
20
seek legal advice. AWD History [100-30]. The following week, Ms. Landrum filed
a complaint against Conseco with the Mississippi Insurance Department. Miss.
Ins. Dept. Compl. [100-12].
Conseco continued its investigation and explored whether Mr. Landrum had
any heirs. Conseco obtained an “Affidavit of Heirs” on December 5, 2011, that it
relies on as a further basis for delaying payment to Ms. Landrum. Affidavit of
Heirs [102-12]. In the Affidavit, Mr. Landrum’s brother attests that Mr. Landrum
had four siblings. Id. The Affidavit does not reflect that Mr. Landrum’s siblings
were making a claim to the proceeds of the Policy, and Conseco now concedes that
“the Insured’s purported heirs at law did not make an express claim for the
proceeds . . . .” Def.’s Resp. [116] at p. 20.
On December 12, 2011, Conseco received correspondence from the
Mississippi Insurance Department informing it of Ms. Landrum’s complaint.
Letter [100-4]. Conseco responded to the Mississippi Insurance Department by
letter dated December 19, 2011. Id. The letter provided:
Since Mr. Landrum’s death was ruled a homicide and there
were competing parties attempting to claim the death
proceeds, it was determined that the issue should become
an interpleader situation. Therefore, an interpleader has
been filed and no proceeds will be paid until determined by
the court.
Id.
Conseco admits that no interpleader action had been filed at the time of
Conseco’s letter to the Mississippi Insurance Department. Def.’s Mem. [103] at p.
21
18. Conseco submits that its representation to the Mississippi Insurance
Department was “inadvertent” and “simply a presumption based on the
determination that an interpleader action was the proper means for the payment
of the proceeds of the Policy.” Def.’s Resp. [116] at p. 4; Def.’s Reply [114] at p. 11.
Conseco does not explain whether its representation to the Mississippi Insurance
Department that “there were competing parties attempting to claim the death
proceeds” was also inadvertent or a presumption, since it now admits that the
purported heirs made no claim to the proceeds. Def.’s Resp. [116] at p. 20.
Conseco turned Ms. Landrum’s claim over to its legal department on
December 19, 2011. Def.’s Resp. [116] at p. 4. The Mississippi Insurance
Department wrote Ms. Landrum on December 20, 2011, informing her that
Conseco represented that “no proceeds will be paid until determined by the court.”
Letter [109-4]. Ms. Landrum obtained counsel and filed suit against Conseco in
this Court on January 9, 2012. Pl.’s Compl. [1].
Conseco filed its Answer and a third-party Complaint for Interpleader on
January 19, 2012. Def.’s Answer and Countercl. [10]. Conseco represented in its
Complaint for Interpleader that it “received an ‘Affidavit of Heirs,’ . . . from the
purported heirs-at-law of decedent making a claim for the proceeds of the subject
policy.” Id. at p. 11 (emphasis added). Conseco sought to deposit the proceeds of
the Policy into the Registry of the Court and to have the Court resolve whether Ms.
Landrum or Mr. Landrum’s siblings were proper beneficiaries. Id. at p. 13.
22
Conseco also requested that it be dismissed from the case and discharged from all
further liability associated with the proceeds. Id.
Summonses were served on Mr. Landrum’s siblings between February 7,
2012, and February 9, 2012, and to date, none have filed an Answer or otherwise
appeared. Summonses [12][13][14][15]. Conseco did not promptly pursue default
judgments against the siblings, and Ms. Landrum attempted to do so, beginning on
March 14, 2012. Pl.’s Mots. for Clerk’s Entry of Default [18][19][20][21]; Pl.’s Mots.
for Default Judgment [23][24][25][26]. On June 13, 2012, the Court denied
Plaintiff’s Motions for Default Judgment, finding that Conseco had not shown that
interpleader was appropriate because it had not supplied sufficient proof that it
was or may be exposed to double or multiple liability. Order [32] at p. 3.
On July 11, 2012, Conseco filed a Motion for Interpleader [34], again
submitting that interpleader was appropriate because Mr. Landrum’s siblings had
made claims to the proceeds, and it was at risk of double or multiple liability.
Def.’s Mem. [35] at p. 3. Conseco contended that the Landrums’ Divorce Decree
“alone offered Conseco Life no guidance as to the disposition of the subject policy as
a result of the divorce.” Def.’s Mem. [35] at pp. 2-3. The language of the Divorce
Decree, however, confirmed Ms. Landrum’s representation that no property
settlement existed. Divorce Decree [100-8]. It informed Conseco that Ms.
Landrum’s whereabouts were unknown at the time of the divorce, that she was
served via publication as a result, and that the divorce was granted on grounds
23
that she had willfully deserted the marriage for the space of one year. Divorce
Decree [100-8]; see Miss. Code Ann. § 93-5-1(4). As the Court has previously
observed in this case, “[g]iven that Plaintiff and Decedent’s divorce was granted on
grounds of Plaintiff’s desertion, it seems unsurprising that there would not have
been a property settlement agreement, since Plaintiff’s whereabouts at the time of
the divorce were apparently unknown.” Order [38] at p. 5. The docket sheet for
the Landrums’ divorce was easily accessible to Conseco via the internet free of
charge and verifies that no property settlement agreement was filed in connection
with the Landrums’ divorce. Chancery Court docket [100-9].
On September 18, 2012, the Court denied Conseco’s Motion for Interpleader,
finding again that it had “not demonstrated that it has a bona fide fear of
conflicting claims to the proceeds” and that its argument “as to potential adverse
claims by Decedent’s siblings is remote and speculative,” as the siblings had not
made claims to the proceeds and there was no indication that they intended to do
so. Order [38] at pp. 4-6. On October 1, 2012, Conseco tendered $50,507.53 to Ms.
Landrum. Def.’s Resp. [116] at p. 4.
Conseco submits that its nearly one-year delay in payment and its
Complaint for Interpleader were reasonable to protect Conseco from the possibility
of competing claims, noting that there is no requirement that an insurance
company be faced with actual competing claims. Def.’s Resp. [116] at p. 116. A
stakeholder, however, must legitimately fear double or multiple claims directed at
24
a single fund in order for interpleader to be appropriate. Wausau Ins. Cos. v.
Gifford, 954 F.2d 1098, 1101 (5th Cir. 1992). The only case that Conseco cites in
support of its position that it legitimately feared competing claims and that its
delay in payment had a reasonably arguable basis is Lafayette v. Guarantee
Reserve Life Ins. Co., No. 4:04-cv-85-P-B, 2005 WL 2007148 (N.D. Miss. Aug. 18,
2005). In Lafayette, two daughters of an insured contested the named beneficiary
in the insured’s life insurance policy, where the named beneficiary had listed
herself as the decedent’s granddaughter when she was not related to the insured in
any way. Id. at *6. Based on those facts, the Court allowed interpleader, finding it
“reasonable to believe that various legal theories could be asserted in support of
the contest including fraud, undue influence, lack of mental capacity, etc.” Id.
Unlike Lafayette, there are no competing claims here, and unlike the life
insurance company in Lafayette, Conseco has articulated no reasonable legal basis
by which anyone other than Ms. Landrum might be entitled to the Policy’s
proceeds. The record reflects that Conseco knew or should have known within two
months of Ms. Landrum’s claim that there was no property settlement agreement
in connection with the Landrums’ divorce, and even if one had existed, Conseco has
offered no authority in support of its position that disposition of the Policy in a
property settlement agreement could eclipse the unambiguous terms of the Policy,
which required a change of beneficiary to be made by written notice on a form
provided by Conseco. Policy [100-1] at p. 15. Conseco now admits, after three
25
representations to the contrary, that Mr. Landrum’s siblings did not make a claim
to the proceeds. It was not reasonable for Conseco to delay payment to Ms.
Landrum on the basis that she did not produce a property settlement agreement
that does not exist. Based on the undisputed material facts, the Court concludes
as a matter of law that Conseco lacked an arguable basis for its delay in tendering
payment to Ms. Landrum such that Conseco breached the terms of the Policy by
not tendering payment within “(2) months after receipt of due proof of death.”
Policy [102-2] at p. 17. Ms. Landrum will be allowed to present her case for extracontractual compensatory damages at trial. Because the Court is of the view that
Ms. Landrum’s claim for punitive damages is not ripe, Conseco’s request to dismiss
her punitive damages claim should be denied without prejudice at this time.
4.
Fraudulent Misrepresentation
Ms. Landrum asserts that Conseco is liable to her for fraudulent
misrepresentation because Conseco “knew it was lying” when it represented to the
Mississippi Insurance Department that an action for interpleader had been filed
when, in fact, one had not, and when Conseco represented to the Mississippi
Insurance Department that “there were competing parties attempting to claim the
death proceeds,” when in fact there were not. Pl.’s Mem. [109] at pp. 27-28; Letter
[100-14]. Conseco admits that it misrepresented to the Mississippi Department of
Insurance that an interpleader had been filed on December 19, 2011, but
maintains that “the claim had been turned over to Conseco Life’s legal department
26
at that time in order to pursue an interpleader action[, and] . . . Conseco Life did
file its complaint for interpleader soon thereafter in January 2012.” Def.’s Mem.
[103] at p. 18. Conseco contends that its misrepresentation was not a knowing one
but “was simply a presumption based on the determination that an interpleader
action was the proper means for the payment of the proceeds of this Policy.” Def.’s
Reply [114] at pp. 2-3. According to Conseco, there is “a complete lack of evidence
that MS DOI would have continued its investigation had CLIC represented to it
that it had determined an interpleader action was necessary and would be
subsequently initiating an interpleader action.” Id. at p. 12. Conseco also asserts
that Ms. Landrum cannot show that she suffered any damage as a result of the
misrepresentation because she would have hired an attorney anyway, whether
Conseco filed a complaint for interpleader in December 2011 or January 2012.
Pl.’s Mem. [103] at pp. 19-20.
To prevail on a claim of fraudulent misrepresentation, a plaintiff must
establish (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s
knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it
should be acted upon by the person and in the manner reasonably contemplated;
(6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance upon its truth; (8)
the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate
injury. Martin v. Winfield, 455 So. 2d 762, 765 (Miss. 1984). “Proving fraud is
difficult, as it ought to be. Clear and convincing evidence is required.” Id.
27
Conseco was communicating with the Mississippi Insurance Department,
and not Ms. Landrum, when it represented that an interpleader had been filed by
December 19, 2011, and when it represented that there were competing claims to
the proceeds. Ms. Landrum has submitted no authority to support the conclusion
that she may maintain a fraudulent misrepresentation claim when she was not the
“hearer” of the misrepresentation. Ms. Landrum has not met her summary
judgment burden, and her fraudulent misrepresentation claim should be
dismissed.
5.
Conversion, Negligent Misrepresentation, Unjust Enrichment, Breach
of the Duty of Good Faith and Fair Dealing, and Breach of Fiduciary
Duty
The Court has already determined that Conseco has tendered the correct
amount of death benefits owed to Ms. Landrum. As such, Ms. Landrum’s
conversion claim should be dismissed. Ms. Landrum has not responded to
Conseco’s assertion that her claims for negligent misrepresentation, unjust
enrichment, breach of the duty of good faith and fair dealing, and breach of
fiduciary duty should be dismissed. Ms. Landrum has therefore abandoned these
claims, and they should be dismissed.
B.
Conseco’s Daubert Motion [104] to Exclude Testimony of G. Richard
Thompson
Conseco requests that the Court exclude Ms. Landrum’s expert witness, G.
Richard Thompson, whom Ms. Landrum has designated to opine that the death
benefit equates to $827,999.40 and to calculate the interest on this amount at a
28
rate of four percent compounded annually. Def.’s Mot. [104] to Exclude at pp. 2-3;
Pl.’s Desig. of Expert Witness [104-1]. In light of the Court’s ruling that Ms.
Landrum is not entitled to a death benefit of $827,999.40 or interest at the rate of
four percent compounded annually, Mr. Thompson’s testimony is irrelevant.
Conseco’s Daubert Motion [104] to Exclude Testimony of G. Richard Thompson
should be granted.
C.
Ms. Landrum’s Motion [107] for Sanctions and to Strike/Objections to
Affidavit, Expert Opinions, Other Exhibits, and Arguments Submitted in
Support of Conseco’s Motion for Summary Judgment
Ms. Landrum moves to strike certain evidence and requests sanctions
against Conseco for relying on evidence and expert opinions allegedly not disclosed
during discovery. Pl.’s Mot. [107] for Sanctions at pp. 1-2. Conseco submitted the
Affidavit of David Rikkers in support of its Motion for Summary Judgment and
with its Response to Ms. Landrum’s Motion for Partial Summary Judgment. Aff.
of David Rikkers [102-1]. Mr. Rikkers is a Legal Interface Compliance Analyst at
CNO Services, LLC, which provides administrative services for Conseco. Id. at p.
1.
Mr. Rikkers avers in his Affidavit that “Death Benefit Multiples,” such as
those in the Policy’s Schedule, are governed by Internal Revenue Code Section
7702, 26 U.S.C. § 7702. Id. at p. 2. He attests that the Policy would not comply
with Section 7702 and meet the definition of life insurance if the Schedule
contained a multiplier of 122, as opposed to a multiplier of 1.22. Id. at pp. 2-3. Mr.
29
Rikkers also avers that the death benefit is determined by an insured’s “attained
age” at death, as opposed to his calendar age. Id. at p. 3. Mr. Rikkers submits that
Mr. Landrum died at an “attained age” of 63 and a death benefit of 1.24 is
therefore applicable because “‘[a]ttained age’ means the insured’s age determined
by reference to contract anniversaries, rather than individual’s actual birthday.”
Id. at p. 3.
The Court agrees with Plaintiff that portions of Mr. Rikkers’ Affidavit stray
into the realm of expert testimony, and because Mr. Rikkers was not designated as
an expert, the Court has not considered these portions of the Affidavit. To this
extent, Ms. Landrum’s Motion [107] is moot. While the Court did not consider
Section 7702 of the Internal Revenue Code, it knows of no authority and has been
provided none which would prohibit the Court from taking judicial notice of or
considering a federal statute in reaching its decisions.
The Court has relied on Ms. Rikkers’ representation that the Specimen Copy
of the Policy provided to Ms. Landrum during discovery is “Policy Form 2F011010/89,” the form from which Mr. Landrum’s Policy was derived. Id. at p. 2. Mr.
Rikkers was disclosed by Conseco during discovery as a person with discoverable
knowledge, another Affidavit of Mr. Rikkers was submitted in support of Conseco’s
Motion for Interpleader, and Mr. Rikkers verified each of Conseco’s responses to
Ms. Landrum’s interrogatories. Def.’s Resp. [117] at pp. 4-5. Furthermore, a copy
of the Specimen Policy was produced prior to the close of discovery and was
30
attached as an exhibit to Ms. Landrum’s deposition. Id. at p. 5. In light of the
foregoing, Ms. Landrum’s Motion for Sanctions and to Strike/Objection to Affidavit,
Expert Opinions, Other Exhibits, and Arguments Submitted in Support of
Conseco’s Motion for Summary Judgment should be denied.
D.
Ms. Landrum’s Motion [119] for Leave to File Additional Pages of
Memorandum Briefs in Support of Plaintiff’s Motion for Partial Summary
Judgment
On the same date that she filed her Rebuttal [120] in Support of her Motion
for Partial Summary Judgment, Ms. Landrum filed a Motion [119] requesting
leave to exceed the thirty-five page limit for original and rebuttal memorandum
briefs. The Local Uniform Civil Rules provide:
Length of Memorandum Briefs. Movant’s original and
rebuttal memorandum briefs together may not exceed a
total of thirty-five pages, and respondent’s memorandum
brief may not exceed thirty-five pages.
L. U. Civ. R. 7(b)(5).
Conseco submits that Ms. Landrum is attempting to circumvent the Local
Rules’ 35-page limit by submitting a thirteen page Motion for Partial Summary
Judgment which contains an itemization of purported undisputed facts, then
incorporating those facts into her accompanying 23-page Memorandum in Support,
and then filing a 17-page rebuttal. Def.’s Resp. [116] at p. 5 n.2. Ms. Landrum
maintains that “Uniform Rule 7(b)(5) clearly does not include pages in ‘motions’ in
the limitations set forth therein” and that Federal Rule of Civil Procedure 56
“specifically requires” that the “motion” in support of Summary Judgment include
31
undisputed facts and citations to record in support of those facts. Pl.’s Mot. [119]
at p. 2.
The portion of Rule 56 that Ms. Landrum relies on in support of her
argument addresses the procedure for seeking summary judgment. Fed. R. Civ. P.
56(c)(1). It provides that a party seeking summary judgment must demonstrate,
by citation to materials in the record, that there is no genuine issue of material
fact. Id. Rule 56(c)(1) does not provide that a “motion” for summary judgment, as
opposed to the memorandum in support, must contain all purportedly undisputed
facts. The Court is not persuaded that Local Rule 7's reference to memorandums
alone means that a party may circumvent the Rule’s 35-page limit by filing as
lengthy a “motion” as that party desires.
Ms. Landrum’s counsel has previously been admonished twice during this
litigation regarding the needlessly lengthy and voluminous nature of his filings.
Order [85] at pp. -4; Order [118] at p. 8. Prolix and redundant filings are neither
necessary nor effective and can be easily remedied through proper editing.
Furthermore, a request for leave of Court to exceed the Local Rules’ page
limitation should be filed and granted by the Court before a party submits a
document that exceeds the page limitation. Under the circumstances here, Ms.
Landrum’s Motion [119] requesting leave to exceed the Local Rules’ 35-page
limitation should be denied.
32
III. CONCLUSION
For the foregoing reasons, Ms. Landrum’s Motion [100] for Partial Summary
Judgment and Conseco’s Motion [102] for Summary Judgment should each be
granted in part and denied in part, Conseco’s Daubert Motion [104] should be
granted, Ms. Landrum’s Motion [107] for Sanctions and to Strike should be denied,
and Ms. Landrum’s Motion [119] for Leave to File Additional Pages should be
denied. To the extent that the Court has not addressed any of the parties’
arguments, it has nevertheless considered them and determined that they would
not alter the result.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff
Patricia K. Landrum’s Motion [100] for Partial Summary Judgment and Defendant
Conseco Life Insurance Company’s Motion [102] for Summary Judgment are each
GRANTED IN PART AND DENIED IN PART. Conseco did not breach the
terms of the Policy in calculating the death benefit and interest owed. Conseco is
entitled to summary judgment in part on these issues. However, Ms. Landrum is
entitled to summary judgment in part in that Conseco did breach the terms of the
Policy by delaying payment. Because Conseco lacked a reasonably arguable basis
for this delay, Ms. Landrum’s claim for extra-contractual compensatory damages
will proceed to trial. Ms. Landrum’s claims for fraudulent misrepresentation,
negligent misrepresentation, conversion, unjust enrichment, breach of the duty of
good faith and fair dealing, and breach of fiduciary duty are dismissed with
33
prejudice. Ms. Landrum’s claim for punitive damages is not ripe, and Conseco’s
request to dismiss Ms. Landrum’s punitive damages claim is denied without
prejudice at this time.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant
Conseco Life Insurance Company’s Daubert Motion [104] to Exclude Testimony of
G. Richard Thompson is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Patricia
K. Landrum’s Motion [107] for Sanctions and to Strike/Objection to Affidavit,
Expert Opinions, Other Exhibits, and Arguments Submitted in Support of
Conseco’s Motion for Summary Judgment is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Patricia
K. Landrum’s Motion [119] for Leave to File Additional Pages of Memorandum
Briefs in Support of Plaintiff’s Motion for Partial Summary Judgment is DENIED.
SO ORDERED AND ADJUDGED, this the 13th day of November, 2013.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
34
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