Gilbert v. Athene Annuity & Life Assurance Company

Filing 5

ORDER granting 2 Motion to Dismiss and 3 Motion to Grant its Uncontested Motion to Dismiss. Signed by District Judge Martin Reidinger on 02/27/2013. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13cv29

TRICIA IRENE GILBERT,
Plaintiff,
vs.
ATHENE ANNUITY & LIFE ASSURANCE
COMPANY,
Defendant.
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ORDER OF DISMISSAL

THIS MATTER is before the Court on the Defendant Athene Annuity
& Life Assurance Company’s Motion to Dismiss [Doc. 2] and Motion to
Grant its Uncontested Motion to Dismiss [Doc. 3].1
The Defendant removed this action from state court on February 1,
2013 based on diversity jurisdiction. [Doc. 1]. The action stems from the
Plaintiff’s attempt to collect on an accidental death insurance policy issued
by the Defendant to her husband, now deceased (the Decedent). [Doc. 11]. It is undisputed from the Complaint and the documents attached thereto
1

Counsel incorporated a memorandum of law into the Motion to Dismiss. [Doc. 2]. For
future reference, the Local Rules require the filing of a separate brief in support of the
motion. L.Civ.R. 7.1.

that the Decedent died from a self-inflicted gunshot wound; that is, suicide.
[Doc. 1-1 at 3, 8, 9, 13, 14]. It is also undisputed that the insurance policy
was for an accidental death benefit and that the policy contained an
exclusion for death by suicide. [Doc. 1-1 at 8].
On February 8, 2013, the Defendant moved to dismiss the action for
failure to state a claim upon which relief may be granted, citing the
exclusionary provision of the accidental death benefit policy for suicide.
[Doc. 2]. The Plaintiff, who is represented by counsel, failed to file any
response to the motion. The Court finds that the motion should be granted.
IT IS, THEREFORE, ORDERED that the Defendant Athene Annuity
& Life Assurance Company’s Motion to Dismiss [Doc. 2] and Motion to
Grant its Uncontested Motion to Dismiss [Doc. 3] are hereby GRANTED
and this action is hereby DISMISSED.
Signed: February 27, 2013