Gilbert v. Athene Annuity & Life Assurance Company

Filing 9

ORDER granting 4 Motion for Leave to File Out-of-Time Response Instanter to Defendant's Motion to Dismiss; denying 6 Motion for Reconsideration of and Relief from Order of Dismissal. Signed by District Judge Martin Reidinger on 05/25/2013. (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

THIS MATTER is before the Court on the Plaintiff’s Motion for Leave
to File Out-of-Time Response Instanter to Defendant’s Motion to Dismiss,
pursuant

to

Fed.R.Civ.P.

6(b)(1)(B)

[Doc.

4]

and

Motion

for

Reconsideration of and Relief from Order of Dismissal, pursuant to
Fed.R.Civ.P. 60(b)(1) and 60(b)(6) [Doc. 6].
PROCEDURAL HISTORY
On February 1, 2013, the Defendant removed this action from state
court based on diversity jurisdiction. [Doc. 1]. The Complaint alleges a
claim based on breach of an insurance contract and a second claim for
Unfair and Deceptive Trade Practices. [Doc. 1-1]. The insurance policy is

an accidental death insurance policy issued to the Plaintiff’s husband who
died of a self-inflicted gunshot wound.1 [Id. at 8-16]. The policy, which
issued in May 2006, contained an exclusion for death of the insured due to
any event other than a covered accident and specifically excluded death by
suicide. [Id. at 8].
On February 8, 2013, the Defendant moved to dismiss this action for
failure to state a claim upon which relief may be granted due to the
exclusion contained within the policy for self-inflicted wounds. [Doc. 2].
The Plaintiff failed to respond to the motion. On February 26, 2013, the
Defendant moved a second time to dismiss based on the Plaintiff’s failure
to respond. [Doc. 3]. This Court granted that motion on February 28,
2013.

[Doc. 5].

The Plaintiff now moves for reconsideration of the

dismissal of this action.
STANDARD OF REVIEW
The Plaintiff’s motion refers to reconsideration. She cites, however,
to Rule 60 which provides for relief from a final judgment based on
excusable neglect or “any other reason that justifies relief.” Fed.R.Civ.P.
60(b). However, in this Circuit, before the requirements of Rule 60 itself

1

A copy of the death certificate is attached to the Complaint and shows that the cause
of death is listed as a self-inflicted gunshot wound to the head. [Doc. 1-1 at 13].
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are addressed, the party filing the motion must show that (1) it is timely; (2)
the party has a meritorious claim; and (3) the opposing party must not be
unfairly prejudiced by having the judgment set aside. Aikens v. Ingram,
652 F.3d 496, 501 (4th Cir. 2011). “And, if the reasons asserted for the rule
60(b)[ ] motion could have been addressed on appeal from the judgment,
[the United States Court of Appeals for the Fourth Circuit] ha[s] denied the
motion as merely an inappropriate substitute for an appeal.” Id.
DISCUSSION
The sole issue in this case is whether N. C. Gen. Stat. §58-58-22(4)
applies to an insurance policy based on accidental death as opposed to a
term or whole life insurance policy. That statute provides in pertinent part:
No policy of individual life insurance shall be delivered in this
State unless it contains in substance the following provision, or
provisions that in the Commissioner’s opinion are more
favorable to the person insured:
…
A provision that may not limit payment of benefits for a period
more than two years after the date of issue of the policy
because of suicide[.]
N.C. Gen. Stat. §58-58-22(4) (emphasis provided).
“The suicide limitation is almost universal in life policies” although
normally limited to a two year period by statute. 1 Life & Health Insurance
Law §2:36 (2d ed.).

The exclusion for suicide is implicit in accident
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coverage “since suicide and accidental death are mutually exclusive.” Id.
“The suicide exclusion under the accidental death benefit[s] [policy] is often
more elaborate and refers also to self-destruction or self-inflicted injuries.”2
Id. at §7:3.
Term life insurance lasts for only a limited term and has no
cash value. Whole life insurance has a cash value, and it lasts
for the whole life of the insured … if premiums in set amount
are paid as scheduled. Universal life insurance has a cash
value and typically permits the policyowner to change the death
benefit and to decide how much premium to pay and when to
pay it, subject to lapse of coverage if payment is insufficient[.]
…
In addition to the typical provisions …, the modern life
insurance policy may contain provisions for additional payment
in the event of accidental death[.] … These [provisions] are in
addition to the pure life insurance benefit and an extra charge is
made for them.
Id. at §3.1.
Contracts for accidental death insurance typically have an exclusion
for suicide and in those policies, “the defense of suicide or self-inflicted
injury is not limited to a specified period but continues throughout the life of
the policy.” Id. at §17:20.
The Plaintiff cites the passage of §58-58-22(4) in 1995 as proof that
the state legislature intended to remove the suicide exclusion from all
2

In this respect, the treatment of suicide in accidental death policies differs markedly
from that of death in a motor vehicle accident caused by driving while intoxicated. See,
Johnson v. American United Life Ins. Co., No.12-1381 (4th Cir., May 24, 2013).
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insurance policies, not just life insurance policies. The statute, however,
makes no reference to accidental death insurance policies, the type of
policy at issue in this case. [Doc. 1-1 at 8]. While Plaintiff’s counsel makes
an argument for the extension of the law, there is no case law to support
that theory.
In order to show a meritorious claim, the moving party must show
that, if relieved from the order of dismissal, she will have a meritorious
claim. Dowell v. State Fire & Casualty Auto. Inc. Co., 993 F.2d 46, 48 (4th
Cir. 1993). This the Plaintiff here cannot do. Boyd v. Bulala, 905 F.2d 764,
769 (4th Cir. 1990) (“[A] threshold condition for granting the relief is that the
movant demonstrate that granting that relief will not in the end have been a
futile gesture[.]”). Because the Plaintiff cannot prove a meritorious cause of
action, the Court need not consider whether she could meet the stringent
burdens required for relief pursuant to Rule 60(b)(1) or (6). Aikens, 652
F.3d at 501; Coomer v. Coomer, 217 F.3d 838 (4th Cir. 2000); United
States v. $19,923.00 in U.S. Currency, 2013 WL 1789576 (W.D.N.C.
2013); Clear Sky Car Wash, LLC v. City of Chesapeake Va., 2013 WL
1560358 **6 (E.D.Va. 2013) (“The first threshold condition to relief under
Rule 60(b) requires the movant to show that he has a meritorious claim[.]”).

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ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Leave
to File Out-of-Time Response Instanter to Defendant’s Motion to Dismiss,
pursuant to Fed.R.Civ.P. 6(b)(1)(B) [Doc. 4] is hereby GRANTED.
IT

IS

FURTHER ORDERED

that the Plaintiff’s

Motion

for

Reconsideration of and Relief from Order of Dismissal, pursuant to
Fed.R.Civ.P. 60(b)(1) and 60(b)(6) [Doc. 6] is hereby DENIED.
Signed: May 25, 2013

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