European Pensions Management Limited v. Columbus Life Insurance Company
ORDER granting 25 Motion for Summary Judgment; granting 28 Motion to Exclude; granting 29 Motion to Strike. Signed by Judge Susan J. Dlott on 10/11/17. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
European Pensions Management Limited,
Columbus Life Insurance Company,
Case No. 1:16-cv-542
Judge Susan J. Dlott
Order Granting Motion to Exclude,
Motion to Strike, and Motion for
This matter is before the Court on Defendant’s Motion for Summary Judgment (Doc. 25),
Motion to Exclude the Report and Testimony of Richard Mintzer (Doc. 28), and Motion to Strike
the Errata Sheet (Doc. 29). Plaintiff European Pensions Management Limited (“EPM”), the
owner of a lapsed life insurance policy originally issued to Harry Harrison, a now-deceased
third-party, filed suit for breach of contract and bad faith against Defendant Columbus Life
Insurance Company (“Columbus Life”), the issuer of the lapsed life insurance policy. EPM has
abandoned its claim that Columbus Life wrongfully terminated the insurance policy for late
payment, but it alleges that Columbus Life wrongfully refused to reinstate the insurance policy
despite Harrison’s failing health.
In the latter two motions, Columbus Life seeks to exclude the Expert Report and
testimony of Richard Mintzer, EPM’s purported expert witness, and to strike the errata sheet
proffered by EPM for the deposition of Francis Moore, EPM’s Federal Rule of Civil Procedure
30(b)(6) witness. The Court will GRANT both motions for the reasons that follow. Likewise,
the Court will GRANT summary judgment to Columbus Life because it was not obligated to
reinstate the policy.
The factual history is derived from Columbus Life’s Statement of Proposed Undisputed
Facts (Doc. 25-1) and EPM’s Response thereto (Doc. 27 at PageID 972–1021), plus EPM’s
Proposed Disputed Issues of Fact (Doc. 27 at PageID 1022–28) and Columbus Life’s Responses
thereto (Doc. 30-3), unless specifically noted otherwise. Pursuant to the Court’s Standing Order,
proposed factual statements properly supported with record evidence and not specifically denied
by the opposing party are deemed admitted.
Columbus Life issued a Flexible Premium Universal Life Insurance Policy No.
CM5015628U (“the Policy”) to Harry Harrison, the insured and original owner of the Policy,
effective February 2, 2005. (Doc. 24-1 at PageID 568.) The Policy provided a $1,000,000
benefit upon the death of Harrison. (Id.) It listed a planned premium of $44,251 annually and a
five-year no-lapse guarantee minimum monthly premium of $2,793. (Id.) Harrison was age 76
at the inception of the Policy. (Id.) Columbus Life knew when it issued the Policy that Harrison
had a pacemaker inserted in July 2000 and had been diagnosed with mild chronic obstructive
pulmonary disease. (Wolf Dec. at PageID 819; Doc. 22-1 at PageID 188.)1 Nonetheless,
Columbus Life assigned Harrison a “standard (non-tobacco user)” mortality class rating—a
rating that meant that Columbus Life determined that Harrison “was at no greater risk of dying
than the average person.” (Doc. 24-1 at PageID 568; Wolf Dec., Doc. 25-3 at PageID 818.)
Columbus Life’s mortality class ratings range from “preferred, to standard, to several degrees of
substandard, and ultimately to uninsurable.” (Wolf Dec., Doc. 25-3 at PageID 817.)
Aaron Wolf is the Chief Underwriter for Western and Southern Financial Group, Columbus Life’s parent
company. (Doc. 25-3 at PageID 817.)
The Policy provided for a sixty-one day “Grace Period” if the owner failed to pay
sufficient premiums to maintain coverage, and it lapsed if the premium payment was not made
during the Grace Period. The Policy stated, “[i]f You do not pay or mail the needed premium
within the 61-day Grace Period, all coverage provided by this policy will terminate without value
at the end of the 61-day period.” (Doc. 24-1 at PageID 582.) Payments mailed were considered
paid on the postmarked date. (Id.) The Policy did not provide extensions for nor address in any
manner payment deadlines that fell on weekends or holidays. Upon termination of the Policy for
non-payment, the Policy allowed for the policy owner to apply for reinstatement:
If the Grace Period expires and Your policy terminates because You have not paid
the needed premium, You may apply to reinstate the policy within five years after
the expiration of the Grace Period if the Insured is still living. The reinstatement
is subject to evidence of insurability satisfactory to [Columbus Life].
(Id. (emphasis added).)
The Policy Transferred and Lapsed
Ownership of the Policy has transferred two times after it was issued to Harrison.
Harrison sold the Policy to an individual named Ian Dike in 2007, and Dike sold it to EPM, a
British pension management scheme, in 2009. The Policy entered the Grace Period five times
during the three years EPM owned the Policy.
Most relevantly, EPM failed to make a sufficient premium payment due on April 2, 2012.
Columbus Life sent EPM a written Grace Period Notice dated April 2, 2012 stating that a
payment of $8,048.37 was due by June 2, 2012 “[i]n order to maintain your insurance coverage”
or “your policy will terminate at the end of the Grace Period without value.” (Doc. 24-1 at
PageID 662.) The Grace Period Notice also informed EPM of its right to seek reinstatement if
the Policy lapsed:
If your policy lapses, you may later apply to reinstate it. In order to reinstate, you
will need to provide evidence of insurability and pay all post-due charges as
specified in your policy.
(Id.) EPM did not make the payment required by June 2, 2012, and the Policy lapsed by its
terms. June 2 and 3, 2012 were weekend days and June 4 and 5, 2012 were bank holidays in the
United Kingdom. EPM wired payment to Columbus Life on June 6, 2012.
On June 7, 2012, Columbus Life sent EPM a written Notice of Loss of Coverage
explaining that the Policy had lapsed. (Id. at PageID 664.) The Notice of Loss of Coverage
stated as follows regarding reinstatement:
THIS COVERAGE MAY BE REINSTATED, WITHIN THS NEXT FIVE (5)
• You provide proof of insurability to our underwriters, AND
• You pay an amount that would make the Net Cash Surrender Value sufficient to
pay back costs and charges as specified in your policy contract, AND
• You pay an amount sufficient to cover the monthly policy charges for 3 months
after reinstatement, AND
• You repay or reinstate any loan and interest indebtedness that existed at the time
the policy lapsed.
(Id.) The next day, Columbus Life sent EPM a letter regarding the lapse and included as
attachments (1) a check to EPM for the value of the late premium payment EPM had wired to
Columbus Life and (2) a blank application for reinstatement. (Id. at PageID 665–66.)
Application for Policy Reinstatement Denied
On July 19, 2012, EPM submitted by electronic mail a Reinstatement Application signed
by Harrison on June 26, 2012. (Id. at PageID 690–96.) Harrison had been diagnosed with
Parkinson’s disease, dementia, peripheral vascular disease, and chronic kidney disease before he
signed the Reinstatement Application. However, he answered questions on the Reinstatement
Application about adverse medical conditions in the negative. (Id. at PageID 695.) Columbus
Life then asked an agent named Doug Bailey to assist EPM and Harrison with the reinstatement
process. (Doc. 30-3 at PageID 1135–36.) Columbus Life determined during its subsequent
investigation that Harrison no longer qualified for a standard mortality class rating. (Wolf Dep.,
Doc. 22 at PageID 147–48.) Columbus Life will not grant an application for reinstatement
unless the insured qualifies for the same mortality class rating at the time of reinstatement that he
or she qualified for when the policy was first issued. (Wolf Dec., Doc. 25-3 at PageID 817.) In
August 2012, Columbus Life declined to reinstate the Policy insuring Harrison “due to overall
medical history which includes pacemaker, Parkinson’s disease, peripheral vascular disease, and
chronic kidney disease.” (Doc. 22-1 at PageID 215–16.) Columbus Life re-stated the denial in a
December 14, 2012 letter based on the “overall current medical history” of Harrison. (Id. at
On July 22, 2013, Harry Harrison died at the age of 85.
EPM filed this suit against Columbus Life on May 12, 2016 alleging that Columbus Life
breached the Policy and acted in bad faith first by terminating the Policy and then by refusing to
grant the Reinstatement Application. Following discovery, Columbus Life moved for summary
judgment as to both the claims for wrongful termination of the Policy and for wrongful refusal to
reinstate the Policy. It argues that (1) it did not breach the Policy or act in bad faith when it
terminated the Policy because EPM failed to make the premium payment before expiration of the
Grace Period; (2) it did not breach the Policy or act in bad faith when it denied reinstatement
because EPM did not provide satisfactory evidence of Harrison’s insurability. Significant to the
analysis below, EPM argues in rebuttal only that there are genuine issues of material fact in
dispute whether Columbus Life breached the Policy and acted in bad faith when it refused to
reinstate the Policy. (Doc. 26.) EPM does not challenge Columbus Life’s initial decision to
terminate the Policy for non-payment, and the Court considers EPM to have withdrawn its
breach of contract and bad faith claims based upon the termination of the Policy.
EPM relies on the testimony of Richard Mintzer, its purported expert witness, and
Francis Moore, its Rule 30(b)(6) corporate representative, to support its opposition to the
summary judgment motion. Columbus Life, however, moves to exclude the Expert Report and
deposition testimony of Mintzer and to strike the errata sheet proffered by EPM to correct
Moore’s response to one deposition question. The Court will resolve the Mintzer and Moore
testimony issues before addressing the summary judgment motions.
MOTION TO EXCLUDE REPORT AND TESTIMONY
Columbus Life moves to exclude the Expert Report (Doc. 23-1 at PageID 427–34) and
deposition testimony (Doc. 23) of Mintzer. Mintzer is an insurance industry professional with
forty years of experience. (Doc. 23-1 at PageID 379–81.) He helped clients secure several
hundred life insurance policies during his career, but he never acted as a life insurance or
medical underwriter. (Mintzer Dep., Doc. 23 at PageID 259–61, 335.) Mintzer has no specific
education, training, or experience in how life insurance companies process premium payments or
reinstatement applications. (Id. at PageID 269, 271–73.) He has served as an expert witness
regarding insurance issues on behalf of both plaintiffs and defendants in more than one hundred
cases. (Doc. 23-1 at PageID 383–99.)
Mintzer stated the following opinions in his Expert Report:
(1) The final due date for payment of the premium on the Policy following the
sixty-one day Grace Period was June 6, 2012 because Columbus Life should have
applied the generally-accepted “weekend and legal holiday rule.” (Doc. 23-1 at
(2) The phrase “evidence of insurability satisfactory to [Columbus Life]” in the
reinstatement provision of the Policy is ambiguous. (Id. at PageID 430.)
(3) Columbus Life turned down Harrison’s Reinstatement Application because of
his age, not because of his health. (Id. at PageID 431–32.)
(4) Columbus Life applied unreasonably strict underwriting standards, acted in its
own self-interest, and acted without good faith when it denied the Reinstatement
Application. (Id. at PageID 432–34.)
Columbus Life moves to exclude the Expert Report and deposition testimony for failure to
comply with the standards of Federal Rule of Civil Procedure 26(a)(2)(B) and Federal Rule of
Standards of Law for Expert Testimony
Federal Rule of Civil Procedure 26(a)(2)(B) requires a testifying expert witness to
provide a written report to the other parties with the following disclosures: (i) his opinions and
the bases therefore, (ii) the facts or data he considered, (iii) the exhibits he will use, (iv) his
qualifications, including a list of his publications from the previous ten years, (v) a list of the
cases in which he testified in the previous four years, and (vi) his compensation for serving as an
expert witness. Id. Federal Rule of Civil Procedure 37(c)(1) states that “[i]f a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.”
Federal Rule of Evidence 702 addresses the admissibility of expert witness testimony:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
Fed. R. Evid. 702. “A district court’s task in assessing evidence proffered under Rule 702 is to
determine whether the evidence ‘both rests on a reliable foundation and is relevant to the task at
hand.’” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). The district court acts as a
“gatekeeper” in making these determinations and must evaluate relevancy and reliability with
“heightened care.” U.S. v. Cunningham, 679 F.3d 355, 380 (6th Cir. 2012) (citation omitted).
The district court must perform its gatekeeper function before the testimony can be admitted
regardless of whether the testimony is based on scientific knowledge, technical knowledge, or
other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 147–
49 (1999); Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006).
The Sixth Circuit notes that “rejection of expert testimony is the exception, rather than
the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (citation omitted).
As such, “Rule 702 should be broadly interpreted on the basis of whether the use of expert
testimony will assist the trier of fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516
(6th Cir. 1998) (citation omitted). The trial court’s role as a gatekeeper of expert testimony is
not meant to serve as a replacement of the adversary system. See Burgett v. Troy-Bilt LLC, 579
F. App’x 372, 377 (6th Cir. 2014) (citation omitted).
As to reliability, the Supreme Court in Daubert identified several factors which might
bear on a reliability determination: testing, peer review, publication, known or potential rate of
error, and general acceptance. 509 U.S. at 593–94. The Daubert factors are neither definitive
nor exhaustive and may not apply in every case. Mike’s Train House, 472 F.3d at 407. “Red
flags that caution against certifying an expert include reliance on anecdotal evidence, improper
extrapolation, failure to consider other possible causes, lack of testing, and subjectivity.” Newell
Rubbermaid, 676 F.3d at 527. However, an evaluation of the reliability of an expert opinion
does not involve a determination of whether the opinion is correct. In re Scrap Metal, 527 F.3d
at 529–30; GED Integrated Solutions, Inc. v. Durotech Int’l, Inc., No. 5:06CV1327, 2009 WL
233872, at *4 (N.D. Ohio Jan. 30, 2009) (citing In re Scrap Metal).
In certain cases, an expert’s experience alone may provide a reliable basis for his
testimony. Fed. R. Evid. 702 (2000 Amendments advisory committee notes); see also Campbell
v. City of Springboro, Ohio, 788 F. Supp. 2d 637, 662 (S.D. Ohio 2011) (stating that reliability
concerns may focus on personal knowledge and experience). “If the witness is relying solely or
primarily on experience, then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Fed. R. Evid. 702 (2000 Amendments advisory
committee notes); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296
(6th Cir. 2007) (quoting the advisory committee notes).
Rule 702 “does not require anything approaching absolute certainty.” Tamraz v. Lincoln
Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010). However, an expert’s opinion must amount to
more than mere speculation. Id. The Sixth Circuit has excluded an expert’s opinion when it was
based upon a “string” of speculations:
And where one person sees speculation, we acknowledge, another may see
knowledge, which is why the district court enjoys broad discretion over where to
draw the line. Yet, so long as there is a line, some forms of testimony may cross
it, and that happened here. [The expert’s] opinion contains not just one
speculation but a string of them: A suggests by analogy the possibility of B,
which might also apply to C, which, if we speculate about D, could eventually
trigger E, so perhaps that happened here. At some point, the train becomes too
long to pull and the couplings too weak to hold the cars together.
Id. at 672 (internal citation omitted).
Sufficiency of Rule 26(a)(2)(B) Disclosures
To begin, Columbus Life argues that Mintzer failed to meet the disclosure requirements
of Rule 26(a)(2)(B). For example, Mintzer initially failed to disclose in the Expert Report a list
of nineteen articles he had written in the past ten years in violation of Rule 26(a)(2)(B)(iv).
(Mintzer Dep., Doc. 23 at PageID 279–85; Doc. 23-1 at PageID 414.) However, EPM provided
Columbus Life with these materials before or during Mintzer’s deposition. Columbus Life also
argues that Mintzer admitted during his deposition that he failed to disclose the names of at least
two cases in which his proffered expert testimony was excluded by a court. (Mintzer Dep., Doc.
23 at PageID 278–79.) However, it is not clear that this was a violation of Rule 26(a)(2)(B)(v)
because Mintzer only had to disclose cases in which he testified during the previous four years.
Mintzer was not asked when he testified in one non-disclosed case, but stated that it was “many
years ago[,]” (Id. at PageID 278), and his testimony was excluded in the other case in 2001, more
than four years earlier, Epis, Inc. v. Fid. & Guar. Life Ins. Co., 156 F. Supp. 2d 116, 1124 (N.D.
Cal. 2001). Regardless, the Court will not strike Mintzer’s Expert Report for his failure to
disclose publications or case names because Columbus Life does not appear to have been harmed
by the omissions.
More troubling is Mintzer’s failure to fully and accurately disclose the bases for his
opinions as required by Rule 26(a)(2)(B)(i) and (ii). Mintzer stated broadly that he reviewed
relevant Policy information, other insurance companies’ reinstatement policies, law review
articles, and the college text book, Planning for Business Owners and Professionals. Mintzer
cited an American International Group (“AIG”) reinstatement guide to support his deposition
testimony that different insurance companies have different underwriting standards for
reinstatement applications. (Mintzer Dep., Doc. 23 at PageID 246–47.) He further testified that
he “think[s]” he looked at other insurance guides too, but he did not “remember what they were.”
(Id. at PageID 246.) Mintzer’s testimony is problematic. To begin, this opinion offered by
Mintzer at the deposition—that different companies have different underwriting standards for
reinsurance application—is improper because Mintzer did not first state the opinion in his Expert
Report. (Doc. 23-1 at PageID 427–34.) Also, Mintzer’s failure to identify the other company
policies he examined, if any, impaired Columbus Life’s ability to effectively cross-examine
Mintzer about how the policies of other insurance policies impacted his interpretation of the
Policy issued by Columbus Life to Harrison.
Mintzer also testified at his deposition that he relied upon a law review article from the
William and Mary Law Review published in 1965. (Mintzer Dep., Doc. 23 at PageID 241.) He
failed to properly identify the law review article in the Expert Report as the basis for his
opinions. (Doc. 23-1 at PageID 435–37.) Additionally, he testified that the insurance industry
has changed “[v]ery substantially” since 1965, including that the rights of reinstatement are more
heavily regulated. (Mintzer Dep., Doc. 23 at PageID 243.) Therefore, Mintzer did not establish
that the principle he cites from the law review article is still applicable today.
Similarly, Mintzer failed to cite in the Expert Report the Planning for Business Owners
and Professionals textbook that he identified at deposition. (Doc. 23-1 at PageID 363–70, 435–
37.) Moreover, the chapter 3 heading and page number of the pages he cites as being from the
Planning for Business Owner and Professionals textbook do not match the chapter 3 heading or
page numbers for that book on its table of contents. (Compare Id. at PageID 363–65 with
PageID 367.) The Court concludes that the text excerpt does not, in fact, come from the
Planning for Business Owner and Professionals textbook despite Mintzer’s mistaken testimony.
Finally, Mintzer stated in the Expert Report that “[i]nsurance rates and actuarial statistics
recognize the fact that a certain percentage of insureds will give up their policy benefits when
they no longer need or want to continue paying insurance premiums.” (Doc. 23-1 at PageID
432.) However, he admitted at his deposition that he did not look at any specific actuarial
statistics, but instead he knew from his “personal experience there are mortality table and
actuarial tables that take into account the fact that a certain percentage of policy owners will give
up their policies prior to paying a death benefit.” (Doc. 23 at PageID 329.) Mintzer again here
fails to meet the basic Rule 26(a)(2)(b) requirement to state the bases for his opinions and
provide the facts and data relied upon.
In sum, Mintzer failed to completely and accurately disclose the “how” and the “why” of
his Expert Report opinions rendering his opinions unreliable and causing prejudice to Columbus
Life. See R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010)
(interpreting requirements of Rule 26); Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865, 879
(S.D. Ohio 2010) (on per se prejudice). The report itself “must be complete such that opposing
counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the
report must be sufficiently complete so as to shorten or decrease the need for expert depositions
and thus to conserve resources.” R.C. Olmstead, 606 F.3d at 271 (citation omitted). The failure
to comply with Rule 26(a)(2)(B) is sufficient grounds to strike Mintzer’s testimony pursuant to
Rule 37(c)(1). Nonetheless, the Court will proceed to analyze whether Mintzer’s substantive
opinions otherwise would be admissible.
Admissibility of Opinions Under Rule 702
First Opinion: The final due date for payment of the premium on the
Policy following the sixty-one day Grace Period was June 6, 2012
because Columbus Life should have applied the generally-accepted
“weekend and legal holiday rule.”
Mintzer opined that Columbus Life should have applied a “weekend and holiday rule”
and determined that the Grace Period ended on June 6, 2012. (Doc. 23-1 at PageID 428–29.)
This opinion by Mintzer primarily is relevant to EPM’s now-abandoned claim that Columbus
Life violated the Policy and acted in bad faith when it terminated the Policy for non-payment of
the premium on June 2, 2012. Mintzer supported this opinion in the Expert Report merely by
making the conclusory assertion that “[i]t is a generally accepted insurance industry standard that
if the due date of the invoice falls on a Saturday, Sunday, or legal holiday the premium is not due
until the next business day.” (Doc. 23-1 at PageID 429.) This is not sufficient. Expert reports
must contain the “how” and the “why” the expert arrived at each conclusion. R.C. Olmstead,
606 F.3d at 271.
At his deposition, Mintzer supported this opinion by referencing his experience in the
insurance field, specifically stating that the five life insurance companies he worked for applied a
weekend and holiday rule. (Mintzer Dep., Doc. 23 at PageID 299.) However, he admitted that
the Policy issued by Columbus Life to Harrison did not provide any exceptions for payment due
dates landing on a weekend or holiday. (Id. at PageID 300, 302.) “[A]s to insurance coverage
issues where the parties’ rights are ‘governed by the written contract between them, any evidence
concerning the custom of the insurance industry with regard to matters covered in the contract’ is
‘irrelevant,’ and a trial court does not err by refusing to admit expert testimony on such industry
practices.” The Way Int’l v. Exec. Risk Indem., Inc., No. 3:07CV294, 2009 WL 3157402, at *14
(S.D. Ohio Jan. 27, 2009), report and recommendation adopted, 2009 WL 3157403 (S.D. Ohio
Sept. 28, 2009) (quoting City of Warrensville Hts. v. City of Shaker Hts., No. 38356, 1979 WL
209954, at *6 (Ohio App. 8th Dist. Mar. 15, 1979)).
Moreover, Mintzer gave inconsistent testimony regarding whether Columbus Life was
legally required to follow the weekend and legal holiday rule or whether it simply acted contrary
to a customary practice of insurance companies:
I believe that the holiday weekend -- holiday -- weekend and holiday rules
that are a common practice in United States should apply to legal holidays in
Okay. What are the weekend and holiday rules that you’re referring to?
That if a premium falls due on a weekend or a holiday, it’s not due until
the next business day.
Is that a legal rule?
I don’t know the answer to that question.
Do you know if insurance companies are required to do that?
I know that some states have statutes regarding that, but I can’t -- cannot
comment specifically on Ohio or -- actually, I can comment specifically. I do
know that some states have statutes regarding this.
What I’m suggesting -- I don’t know why we’re -- keep going over this
thing. What I’m suggesting, in my opinion, if a policy lapses on June 2nd and
that happens to be a weekend or a holiday,it’s not due until the next business day.
That’s what I’m opining to. I don’t know where you’re going with all these
questions, but that’s what my opinion is.
Is that your opinion regardless of what the policy says?
That is my opinion, yes.
I’ll answer the question again. I believe that when a company is doing
business globally, they have to recognize the local customs and rules of the
country that they’re doing business in. That’s the simplest way I can put it.
Are you aware of any legal requirement that says that?
Okay. So it’s just your opinion that they should?
But not that they have to?
They don’t have to do anything I guess, but the question is what the
practice the actual practice is.
Okay. But that’s an important point. It’s not your opinion that Columbus
Life had to observe any legal holidays in England.
No. I think that they should. The word is should.
Okay. You agree that the policy governs the premium payments in this
THE WITNESS: If he was not late in his premiums if -- if -- no scratch that. In
my point of view, he was not late in his premiums because he was not obligated to
pay the premium until June 6th because of the holiday and weekend rules.
(By Mr. Hine) Right. But again, none of that is in the contract, correct?
None of that is in the contract.
Okay. So notwithstanding the apparent holiday and weekend rules, you
agree -- I think you just testified that -- that EPM was late under the terms of the
It’s notwithstanding anything. It’s a simple fact. In my opinion, it was
due June 6th.
Do you agree that the contract said that they had to pay the premium by
the end of the grace period?
Do you agree the end of the grace period was June 2nd, 2012?
And do you agree that they did not make a payment by June 2nd, 2012?
Okay. But that doesn’t matter to you?
Of course it matters.
(Id. at PageID 299–301, 304, 306 (emphasis added).) Expert witness testimony is only
admissible if it is helpful to the trier of fact. Fed. R. Civ. P. 702. Mintnzer’s testimony on this
issue is too muddled and contradictory to be helpful to the trier of fact on the issue of bad faith.
Accordingly, the Court will strike Mintzer’s Expert Report and testimony regarding the weekend
and holiday rule.
Second Opinion: The phrase “evidence of insurability satisfactory to
[Columbus Life]” in the reinstatement provision of the Policy is
Mintzer opined that the phrase “evidence of insurability satisfactory to [Columbus Life]”
is ambiguous. (Doc. 23 at PageID 430.) This determination is not appropriate for a purported
expert witness. The interpretation of a contract is a matter of law for the Court. United Nat’l
Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir. 1999); Lager v. Miller–Gonzalez, 120
Ohio St. 3d 47, 896 N.E.2d 666, 669 (2008). The determination of whether a contract term is
ambiguous “is not dependent upon any purported expert’s ability to interject uncertainty.” The
Way Int’l, 2009 WL 3157402, at *14. Mintzer’s second opinion is not helpful to the trier of fact
and is not admissible under Rule 702.
Third Opinion: Columbus Life turned down Harrison’s
Reinstatement Application because of his age, not because of his
Mintzer opined that Columbus Life did not base its decision to deny reinstatement of the
Policy on Harrison’s health, but on his age. (Doc. 23-1 at PageID 431–32.) Mintzer
acknowledged in the Expert Report that Harrison’s health had declined over seven years such
that Harrison went from being evaluated as the standard mortality class rating to a sub-standard
rating, but he dismissed Harrison’s health as the actual reason reinstatement was declined. (Id. at
PageID 431.) Mintzer stated that Columbus Life had the option to issue life insurance policies at
the lower sub-standard rating. (Id.) He then concluded, seemingly out of proverbial left field,
that Columbus Life denied reinstatement based on Harrison’s age.
It is notable that Mintzer never states Harrison’s age at the time of the inception of the
Policy, the date the Policy lapsed, or the date the Reinstatement Application was denied. Of
course, the Court and the parties are aware that Harrison was age 76 in 2005 when he purchased
the Policy and age 84 when he applied for and was denied reinstatement in 2012. (Doc. 24-1 at
PageID 568, 692.) Mintzer’s conclusory opinion begs the questions—but does not answer—at
what age Columbus Life considered an applicant to be too old to be insured or why Harrison’s
age of 76 was not a disqualifying factor to Columbus Life in 2005. Mintzer does not cite to or
provide any actuarial data concerning life expectancy. He does not provide any facts regarding
how Columbus Life or other life insurance companies typically treat an applicant’s advancing
age in their underwriting decisions.
Additionally, Mintzer undermined his own opinion that Columbus Life denied the
Reinstatement Application based on Harrison’s age in at least two ways at his deposition. First,
Mintzer admitted his opinion was based on speculation when he testified it was not based on any
“documents that [he] may or may not have seen” nor upon any “specific evidence.” (Doc. 23 at
PageID 327.) Second, Mintzer specifically testified that Columbus Life would have reinstated
the Policy if Harrison had not had health problems at the time he applied for reinstatement. (Id.
at PageID 326.) In sum, Mintzer does not provide a reasoned basis in the Expert Report for his
opinion that Columbus Life denied the Reinstatement Application based on Harrison’s age. The
Court concludes that Mintzer’s third opinion is neither reliable nor helpful to the trier of fact.
Fourth Opinion: Columbus Life applied unreasonably strict
underwriting standards, acted in its own self-interest, and acted
without good faith when it denied the Reinstatement Application.
Mintzer opined that Columbus Life did not act in good faith when it applied the most
restrictive underwriting standards to the Reinstatement Application. (Doc. 23-1 at PageID 432–
34.) It is clear from Mintzer’s deposition testimony that his opinion that Columbus Life acted in
bad faith is based in part on Columbus Life’s decision to consider the Policy lapsed as of June 2,
2012, instead of applying the so-called weekend and holiday rule. (Doc. 23 at PageID 321
(stating he “believe[d] the policy never lapsed”), 332 (stating there never should have been a
request for reinstatement because Columbus Life “should have taken the check because of the
holiday rule”), 333 (stating that Columbus Life “never should have gotten to the reinstatement
request because the policy premium was paid”). EPM, however, has abandoned its claim that
Columbus Life wrongfully terminated the Policy based on the non-payment of the premium. It is
impossible to determine precisely how much the mistaken assumption that Columbus Life
wrongfully terminated the Policy impacted Mintzer’s bad faith opinion because he refused to
respond to a deposition question asking him to assume that the Policy had lapsed. (Id. at PageID
Additionally, Mintzer opined that insurance companies typically apply more liberal
underwriting standards when an insured applies for reinstatement close in time to the policy
lapsing. He stated as follows in the Expert Report:
Underwriting standards with regard to reinstatement requests operate on a
continuum. By that, I mean a reinstatement request received a few days after the
lapse date is treated differently than a reinstatement request months or years after
the policy lapse. The reason for the difference in underwriting standards is that a
person who waits months or years to apply for reinstatement is most likely to have
health issues. However, a person who misses a payment and requests a
reinstatement a few days subsequent to the lapse date is generally viewed as a
person whose intention is to keep the policy in force. Therefore, the underwriting
decisions must be much more liberal for a person who misses a premium payment
by a few days as compared with a few months or few years. To put it another
way, the further out the reinstatement request is from the lapse date the more
stringent the underwriting will be.
(Doc. 23-1 at PageID 430.) Mintzer argued that Columbus Life should have applied a liberal
underwriting standard to Harrison’s Reinstatement Application because he immediately applied
for reinstatement after the Policy lapsed.
Mintzer was not able at his deposition to clearly explain what he meant by the term
“liberal underwriting standards.” (Doc. 23 at PageID 321, 331.) When asked what he meant by
more liberal standards, Mintzer responded as follows:
(By Mr. Hine) Okay. When you say generally more liberal, what do you
mean by that?
I mean, that’s a general standard of practice. Every -- we’ve already
agreed that every insurance company makes up their own rules. I’m just saying
that, generally speaking, on the over -- of the over -- overarching spectrum of the
industry, applications for reinstatement at different times and places require and
usually request different information. It’s not very complicated.
Okay. But you say that there -- “The underwriting decisions must be much
more liberal for a person who misses a premium payment by a few days as
compared with a few months or a few years.”
That’s what I said, yes.
How much more liberal?
I can’t answer that question.
How can anyone answer that question?
Well, it’s more liberal or less liberal. It’s not a percentage.
(Id. at PageID 320–21.)
Additionally, Mintzer’s opinion was not well-supported. At his deposition, Mintzer cited
in support of this opinion the textbook excerpt he wrongly asserts as being the Planning for
Business Owners and Professionals textbook, (Doc. 23-1 at PageID 363 (“However, if the
insurer receives the payments required under 2 and 3 above within thirty-one days after
expiration of the grace period while the insured is still living, the insurer will usually waive
evidence of insurability.”)), and the AIG reinstatement guide, (Doc. 23-1 at PageID 371). Again,
neither of these sources was identified in the Expert Report, and the textbook excerpt was
misidentified at the deposition.
Next, Mintzer ignored an obvious corollary cutting against EPM’s interest that flows
from his assumptions. He stated in the Expert Report that an insured person who waits for
“months or years” after a policy lapses to apply for reinstatement is not entitled the same liberal
underwriting standards as a person who quickly applies for reinstatement because the person
who delays is “most likely to have health issues.” (Doc. 23-1 at PageID 430.) This statement
suggests that the passage of time leads to health problems. It follows that an insured person like
Harrison whose policy lapsed seven years after inception of the Policy also is likely to have
health problems.2 By Mintzer’s own reasoning, Columbus Life did not have to apply liberal
underwriting standards if the reinstatement applicant, like Harrison, has health issues.
Likewise, Mintzer opines that Columbus Life acted in bad faith because it acted in its
own self-interest by denying the Reinstatement Application. (Doc. 23-1 at PageID 432, 434.)
This is a conclusory opinion. Mintzer testified at the deposition that he knew Columbus Life
acted in its own self-interest because he “judge[d] what they [sic] did by the results.” (Id. at
PageID 334.) He noted that the result of Columbus Life denying the Reinstatement Application
was “a big payday by not having to pay a premium benefit.” (Id.) Of course, this argument can
be made against any insurer which allows a policy to lapse or denies an application for
Finally, Mintzer’s opinion that Columbus Life acted in bad faith was contradicted by his
deposition testimony that “the [P]olicy governs the conditions for reinstatement” and that
Columbus Life did not violate the “terms of the [P]olicy[.]” (Mintzer Dep., Doc. 23 at PageID
331.) Mintzer “never even thought about” whether Columbus Life would have had “potential
good faith bases” to deny the Reinstatement Application. (Id. at PageID 334.) In sum, Mintzer’s
opinion that Columbus Life was obligated to apply liberal underwriting standards is too vague,
conclusory, and contradictory to his other testimony to be helpful to the trier of fact.
The Court will exclude Richard Mintzer’s Expert Report and testimony.
The Court bears in mind that the right to reinstatement lasts only a limited period of time. For example, Ohio law
requires life insurance policies only to provide a right of reinstatement for three years after a policy lapses. Ohio
Rev. Code § 3915.05(J). The Policy itself provided a five-year reinstatement window.
MOTION TO STRIKE ERRATA SHEET
Columbus Life moves the Court to strike an errata sheet submitted by EPM for the
deposition of its Federal Rule of Civil Procedure 30(b)(6) witness, Francis Moore. Moore was
deposed on April 12, 2017. (Moore Dep., Doc. 24 at PageID 452.) EPM’s attorney states that at
the conclusion of the deposition he asked the court reporter to provide the transcript to him and
told the reporter he would provide it to Moore for review. (Gebara Dec., Doc. 33 at PageID
On May 1, 2017, the court reporting agency sent a copy of the Moore deposition
transcript to Columbus Life’s attorney pursuant to his transcript order. (Doc. 29-1 at PageID
1063.) The cover letter to the Columbus Life’s attorney, which was copied to EPM’s attorneys,
reminded the attorneys that “the witness ha[d] thirty days to return the errata sheet and signature
page” to the agency pursuant to the Federal Rules of Civil Procedure. (Id.) EPM’s attorney
agrees that he was on notice as of May 1, 2017 that the transcript was available. (Gebara Dec.,
Doc. 33 at PageID 1159.) The court reporting agency provided a copy of the deposition
transcript to EPM’s attorney on May 30, 2017 after he purchased it. (Id.)
On June 27, 2017, EPM submitted an errata sheet for the Moore deposition to the court
reporter and to Columbus Life’s attorney. (Doc. 29-1 at PageID 1064–66.) Moore purported to
change the following one-word answer “Yes” in the deposition transcript to “No” in the errata
Okay. So even if you knew there was blatantly false information on this
[Reinstatement Application] form, you would not have corrected it or tried to get
the correct answer because you didn’t believe the form was necessary?
(Moore Dep., Doc. 24 at PageID 531; Doc. 29-1 at PageID 1065–66.) Moore also included a
four-paragraph explanation for the change beginning that he “misspoke in answer to this
question.” (Doc. 29-1 at PageID 1066.) Columbus Life moves to strike the errata sheet as
untimely and substantively improper.
Standard of Law
The process by which a deponent may alter his deposition testimony is as follows:
(e) Review by the Witness; Changes.
(1) Review; Statement of Changes. On request by the deponent or a party before
the deposition is completed, the deponent must be allowed 30 days after being
notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the
changes and the reasons for making them.
Fed. R. Civ. P. 30(e)(1).
Analysis and Conclusion
The Moore deposition errata sheet violates Rule 30(e) and must be stricken. First, it is
untimely. In conformance with EPM’s request at the deposition, Moore was provided with
constructive notice that the transcript was available when such notice was provided to EPM’s
attorney on May 1, 2017. It was EPM’s burden to obtain a copy of the transcript and submit an
errata sheet within thirty days pursuant to Rule 30(e)(1). EPM did not submit the errata sheet
until almost two months had passed. The errata sheet will be stricken on this basis. See, e.g.,
Kull v. Village of Yorkville, Ohio, No. 2:07-cv-686, 2008 WL 5188167, at *4–5 (S.D. Ohio Dec.
10, 2008) (striking untimely errata sheets as failing to meet the procedural requirements of the
Rule 30(e)); U.S. v. United Techs. Corp., No. 3:99-cv-093, 2004 WL 5626494, at *2 (S.D. Ohio
Oct. 11, 2004) (striking errata sheet submitted several months after the Rule 30(e) deadline).
Second, EPM improperly tried to make a substantive change to Moore’s testimony
through the errata sheet. Despite reference to “changes in either form or substance,” the Sixth
Circuit takes a “restrictive approach” toward Rule 30(e). See Mullins v. Cyranek, No.
1:12CV384, 2014 WL 3573498, at *2 (S.D. Ohio July 21, 2014) (collecting cases). The Sixth
Circuit has stated that “Rule 30(e) does not allow one to alter what was said under oath.” Trout
v. FirstEnergy Generation Corp., 339 F. App’x 560, 565 (6th Cir. 2009) (citation omitted). It is
“the ‘[o]ne court of appeals [that] permits a deponent to correct only typographic and
transcription errors.” Walker v. 9912 East Grand River Assocs., LP, No. 11-12085, 2012 WL
1110005, at *3 (E.D. Mich. Apr. 3, 2012) (quoting Devon Energy Corp. v. Westacott, No. H-091689, 2011WL1157334, at *5 (S.D. Tex. Mar. 24, 2011)) (emphasis added); see also Giebel v.
Lavalley, No. 5:12-cv-750, 2013 WL 6903784, at *4 (N.D. Ohio Dec. 31, 2013) (“[I]t is
irrelevant whether the additional testimony is consistent or inconsistent with prior testimony: the
only acceptable changes are those that correct either typographical or transcription errors”).3 In
the errata sheet, Moore asserted that he “misspoke” and he attempts to change a one-word
deposition answer and supplement it with a four-paragraph explanation. (Doc. 29-1 at PageID
1065–66.) This amounts to improper attempt to change the substance of Moore’s testimony.
Columbus Life would be prejudiced if Moore were permitted to alter his deposition testimony
because it did not have an opportunity to cross-examine Moore regarding this new answer and
But see Jermano v. Graco Children’s Prods., No. 13-cv-10610, 2015 WL 1737548 (E.D. Mich. Apr. 16, 2015)
(stating that “it is not crystal clear in this Circuit that a deponent cannot make substantive changes to his deposition
testimony under Rule 30(e)”).
explanation. Accordingly, the Court will strike the errata sheet to Francis Moore’s deposition as
untimely and an improper attempt to change the substance of deposition testimony.
MOTION FOR SUMMARY JUDGMENT
Columbus Life moves for summary judgment, as a matter of law, on the grounds that it
neither breached the Policy nor acted in bad faith when it refused to reinstate the Policy. The
Policy stated that “reinstatement is subject to evidence of insurability satisfactory to [Columbus
Life].” (Doc. 24-1 at PageID 582.) Columbus Life argues that it did not receive satisfactory
evidence of insurability because although Harrison did not disclose any health problems on the
Reinstatement Application, Columbus Life discovered in its subsequent investigation that
Harrison was suffering from Parkinson’s disease, dementia, chronic kidney disease, and
peripheral vascular disease. In rebuttal, EPM argues that the phrase “evidence insurability
satisfactory to [Columbus Life]” is ambiguous and must be interpreted in its favor. EPM argues
that there is at least a genuine dispute of fact whether Harrison was insurable at a substandard
mortality class rating, and therefore, whether Columbus Life breached the contract and acted in
bad faith when it denied reinstatement. EPM concedes that its bad faith claim is contingent upon
a finding that Columbus Life breached the terms of the Policy. (Doc. 26 at PageID 968.)
Standards of Law
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
judgment is appropriate if “there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to
show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with
affidavits or other proof or by exposing the lack of evidence on an issue for which the
nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322–24 (1986). In responding to a summary judgment motion, the nonmoving party may not
rest upon the pleadings but must “present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
A court’s task is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the
light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor
Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists
when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 132 (6th Cir.
2014) (“A dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could
return a verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted).
“Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at
248. “The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
Analysis and Conclusion
The Court begins its analysis with a review of contract interpretation principles. Under
Ohio law, the interpretation of an insurance contract is a question of law. United Nat’l Ins. Co.,
182 F.3d at 449; Lager, 896 N.E.2d at 669. “Where the language of the contract is clear and
unambiguous, any extrinsic evidence should be excluded and the court should look only to the
four corners of the written contract to determine the plain and ordinary meaning of the terms it
contains.” Haemmerle v. Franklin Life Ins. Co., 25 F. App’x 359, 361 (6th Cir. 2002); see also
United Nat’l Ins. Co., 182 F.3d at 449–50 (“Words and phrases used in an insurance policy must
be given their natural and commonly accepted meaning.’”) (quoting U.S. Fidelity & Guar. Co. v.
Lightning Rod Mut. Ins. Co., 80 Ohio St. 3d 584, 687 N.E.2d 717, 719 (1997)). “The mere
absence of a definition in an insurance contract does not make the meaning of [a] term
ambiguous” if the term has a “plain and ordinary meaning.” Nationwide Mut. Fire Ins. Co. v.
Guman Bros. Farm, 73 Ohio St. 3d 107, 652 N.E.2d 684, 686 (1995). “To ascertain the common
meanings of terms or phrases not defined in the language of contracts, Ohio courts routinely turn
to dictionaries.” Textileather Corp. v. GenCorp Inc., 697 F.3d 378, 382 (6th Cir. 2012). When
contract provisions are susceptible to more than one meaning, “they must be construed strictly
against the insurer and liberally in favor of the insured.” Schwartz Manes Ruby and Slovin,
L.P.A. v. Monitor Liab. Managers, LLC, 483 F. App’x 241, 244 (6th Cir. 2012) (citing Westfield
Ins. Co. v. Hunter, 128 Ohio St. 3d 540, 948 N.E.2d 931, 935 (2011)).
The core of the parties’ dispute is whether the phrase “evidence of insurability
satisfactory to [Columbus Life]” is ambiguous or has a plain and ordinary meaning. The Policy
did not explicitly define the term “insurability” or explain what “evidence of insurability” would
be satisfactory to Columbus Life. Black’s Law Dictionary (10th edition 2014) defines “evidence
of insurability” to be “[i]nformation—such as medical records or medical examination—that an
insurer may require to establish a potential insured’s qualification for a particular insurance
policy.” Merriam-Webster’s Unabridged Dictionary online (2017) defines “insurability” as “the
quality or state of being insurable[,]” and it defines “insurable” as “capable of being or proper to
be insured against loss, damage, death” or “affording a sufficient ground for insurance.”
Columbus Life relies on statutory law, case law, and legal treatises to support its position
that the phrase “evidence of insurability satisfactory to [Columbus Life]” is not ambiguous. To
begin, the phrase “evidence of insurability satisfactory to [the insurer]” is common in life
insurance and required by statute in Ohio. Ohio law requires insurance policies to contain the
No policy of life insurance shall be issued or delivered in this state or be issued by
a life insurance company organized under the laws of this state unless such policy
(J) A provision that if, in the event of default in premium payments, the value of
the policy is applied to the purchase of other insurance, and if such insurance is in
force and the original policy has not been surrendered to the company and
canceled, the policy may be reinstated within three years from such default, upon
evidence of insurability satisfactory to the company and payment of arrears of
premiums with interest;
Ohio Rev. Code § 3915.05 (emphasis added). Likewise, treatises use similar phrases in their
model life insurance policy reinstatement provisions. See, e.g., 2-5 The Law of Life and Health
Insurance § 5.16 (2016) (stating that a policy can be reinstated within five years subject to
“receipt of evidence of insurability of the Insured satisfactory to the Company”); 29-179
Appleman on Insurance Law & Practice Archive, § 179.03 (2010) (stating a policy can be
reinstated within five years upon “receipt of evidence of insurability of the Insured satisfactory to
the Company”); C.W. Copeland, McGill’s Life Insurance § 9.11 (10th Ed. 2015) (stating a policy
can be reinstated within three years upon “evidence of insurability satisfactory to [the insurer]”).
Additionally, an Ohio court of appeals has held that the term “evidence of insurability
satisfactory to [the insurer]” is “plain, clear and unambiguous.” Stevens v. Nationwide Life Ins.
Co., No. 62341, 1993 WL 120253, at *3–4 (Ohio App. 8th Dist. Apr. 15, 1993). Courts in other
jurisdictions also have held that the phrase “evidence of insurability satisfactory to the insurer” is
not ambiguous. See e.g., Barber v. MetLife Grp., Inc., No. 10-CV-281, 2013 WL 173614, at *4
(N.D. Okla. Jan. 16, 2013) (stating in an ERISA case that the term “evidence of insurability” is
unambiguous and requires the insured to submit “evidence of good health” ); Dent v. Am. Int’l
Life Assur. Co. of N.Y., 390 F. Supp. 2d 1341, 1344 (M.D. Ga. 2005) (finding that the “plain and
ordinary reading” of the phrase “evidence of insurability” requires the presentment of medical
evidence); Myers v. Nat’l States Ins. Co., 606 S.E.2d 486, 489 (S.C. App. 2004) (stating in dicta
that the phrase was not ambiguous); Greenberg v. Continental Cas. Co., 75 P.2d 644 (Cal. App.
1938) (stating that the same phrase was not ambiguous, but finding that it meant more than
“good health”); Peters v. Colonial Life Ins. Co. of Am., 193 A. 460, 463 (Penn. Sup. 1937)
(stating in dicta that the phrase was “sufficiently clear[,]” but not defining it).
EPM’s arguments to the contrary are not compelling. EPM cites Hogue v. Supreme
Liberty Life Insurance Co., 59 Ohio App. 409, 18 N.E.2d 503, 508 (7th Dist. 1937), for the
proposition that the insurer must reinstate a lapsed policy of insurance if the insured pays the
premiums owed and meets all specified conditions for reinstatement. This proposition of law is
not disputed. Columbus Life instead argues that EPM did not meet the requirements for
Hogue also contains an interesting discussion about the meaning of the phrase “evidence
of insurability satisfactory to [the insurer]” that undercuts EPM’s argument. The reinstatement
provision in the Hogue policy required “production of evidence of insurability satisfactory to the
company and approved at its home office” and stated that “reinstatement shall not take effect
unless at the date thereof the insured is alive and in sound health.” Id. at 505. The Ohio court of
appeals concluded that the “sound health” clause was redundant of the “evidence of insurability
satisfactory to the company” clause. “It seems not a matter of doubt that the insured must be
alive and in sound health in order that evidence of insurability could be produced, so the last
sentence of the clause really adds nothing to the requirements for reinstatement.” Id. at 508.
There is no suggestion in Hogue that the phrase “insurability satisfactory to the company” was
EPM also cites an Ohio court of appeals decision in which the court determined that a
reinstatement requirement that an insured give the insurer “any facts [the insurer] needs to satisfy
us that the insured is insurable for the contract” was ambiguous. McKay v. Prudential Ins. Co. of
Am., No. 59408, 1991 WL 251678, at *2 (Ohio App. 8th Dist. Nov. 27, 1991). Specifically, the
McKay court determined that there was “ambiguity and lack of certainty as to the meaning of
‘insurability[,]’” and the ambiguity had to be resolved in favor of the insured. Id. at *4. The
appeals court reversed a trial court judgment in favor of the insurer because of the “ambiguity
associated with the term insurable” and “whether good health is either synonymous with or a
condition precedent to liability.” Id. at *5. EPM concludes that the term “insurability” is
ambiguous and that at least a question of fact exists whether it requires proof of good health.
EPM suggests that the Hogue court found the phrase “sound health” to be ambiguous. This court disagrees with
that reading of Hogue. The court stated that the sentence, “Such reinstatement shall not take effect unless at the date
thereof the insured is alive and in sound health” might have ambiguity, but it is clear from the context that the
potential ambiguity concerned the phrase “[s]uch reinstatement.” Id. The court explained as follows:
This language must be construed most favorably to the insured, since the company prepared the
insurance contract, and so construed, the words ‘Such reinstatement’ can refer to no other than that
which has been thereinbefore provided, that is, the reinstatement which results from the date upon
which satisfactory evidence of insurability has been produced to the company and approved at its
home office, and the arrears of premiums paid.
The persuasive value of the McKay decision is limited, however. This non-binding
precedent has not been cited favorably in any other decision published officially or in the
Westlaw database. It is in conflict with the later-issued Stevens decision, also from the Ohio
Eighth District Court of Appeals, and the numerous decisions from other jurisdictions cited
above. This Court declines to follow McKay and instead holds in conformity with the authorities
cited above that “evidence of insurability satisfactory to [Columbus Life]” is not ambiguous.
The plain and common sense meaning of the phrase “evidence of insurance satisfactory
to [Columbus Life]” requires an indication of the insured’s relative good health and must be
proven with medical evidence. See Haemmerle, 25 F. App’x at 363; Smith v. Pacific Mut. Life
Ins. Co., 192 F.2d 248, 251 (6th Cir. 1951). The court held in Haemmerle that the insured did
not meet the conditions for reinstatement when the insured died before submitting to medical
tests. 25 F. App’x at 363. In Smith, reinstatement was denied despite the fact that the insured
claimed to be in good health because the insured did not present medical evidence. Smith, 192
F.2d at 251.5 The phrase “satisfactory to [the insurer]” is interpreted using an objective standard
The Smith court stated as follows:
The reinstatement provision not only required the payment of the overdue premium, but also
provided that the Company should be satisfied as to the insurability of the insured at the time of
his application, and gave the Company the right to require the insured to submit evidence of
insurability. The Company was not satisfied as to the insurability of the insured; it requested of
the insured evidence of insurability; the insured failed to supply it although the Company provided
him an opportunity to do so. On the question of insurability, it can not be reasonably contended
that the Company was bound by the insured’s own statement that he was in good health,
particularly when, at the same time, he admitted having recently been under the care of a
physician, without giving any details about the nature and length of the illness. The Company was
fully justified in making a further investigation and, upon receiving the physician’s report, which
specifically stated that recovery was not complete, in requiring a physical examination. This
condition precedent to reinstatement was never complied with.
such that the evidence must be satisfactory to a reasonable insurer. 29-179 Appleman on
Insurance Law & Practice Archive, § 179.03 (2010).
Further, the meaning of the phrase “evidence of insurability satisfactory to [Columbus
Life]” must be informed by the terms of specific policy which the insured is seeking to have
reinstated. Cf. Black’s Law Dictionary (10th ed. 2014) (defining “insurability” as information
needed to establish qualification for a “particular policy”). The Reinstatement Application was
an application to reinstate Policy CM5015628U insuring Harrison. (Doc. 24-1 at PageID 568,
692.) It was not an application for new life insurance policy. The Policy classified Harrison as
having a mortality class rating of “standard (non-tobacco user)[,]” and required premium
payments calculated based on that rating. Persons classified at a substandard mortality class
rating must pay higher premiums to be insured.6 To require Columbus Life to insure Harrison at
a new mortality class rating would be to require Columbus Life to issue a new policy of
insurance to Harrison under new terms with a new premium rate. Therefore, “evidence of
insurability satisfactory to [Columbus Life]” cannot mean evidence that the reinstatement
applicant is insurable at any mortality class rating as EPM argues.7 It follows that the phrase
Aaron Wolf testified as follows:
The substandard ratings are graded on increments of 25 percent of extra mortality.
So if someone is 50 percent higher risk than our standard class, they’re given a rating class of table
B or table 2 to indicate that they are 50 percent higher risk, and we charge a rate that is 50 percent
higher cost of insurance. And that rating scale continues on up depending how much higher risk
(Wolf Dep., Doc. 22 at PageID 135.)
EPM’s argument suffers from another flaw as well. Francis Moore, EPM’s corporate representative, testified
repeatedly at his deposition that he interpreted the phrase “evidence of insurability” to mean EPM’s capacity to keep
the insurance policy in place as the policyholder. (Doc. 24 at PageID 474, 505, 541.) EPM’s argument to the Court,
accordingly, is not supported by the testimony of its own key witness.
“evidence of insurability satisfactory to [Columbus Life]” in the Policy required Harrison to
submit evidence satisfactory to Columbus Life that he was in sufficiently good health such that
he was insurable at the same standard mortality class rating.
It is undisputed that EPM and Harrison did not submit evidence satisfactory to Columbus
Life that Harrison was insurable at a standard mortality class rating when he applied for
reinstatement. Setting aside the fact that Harrison failed to acknowledge any health conditions in
the Reinstatement Application, Columbus Life determined in its subsequent investigation that
Harrison did not qualify for a standard mortality class rating. Harrison not only retained the
pacemaker, he also suffered from Parkinson’s disease, dementia, peripheral vascular disease, and
chronic kidney disease. EPM cites no evidence indicating that Harrison qualified for a standard
mortality class rating. Rather, it argues that at least a genuine dispute existed whether Harrison
was insurable at the substandard mortality class rating (as opposed to being uninsurable). (Doc.
26 at PageID 966–67 (relying on Doc. 22-1 at PageID 221).) Under the correct interpretation of
the phrase “evidence of insurability satisfactory to [Columbus Life,]” whether Harrison was
insurable at a substandard rating or was uninsurable is not material because the Policy authorized
Columbus Life to deny reinstatement if he was not insurable at the standard mortality class
In sum, no material facts are in dispute. EPM was required to submit evidence of
Harrison’s insurability satisfactory to Columbus Life to obtain reinstatement of the Policy. This
Policy requirement was not ambiguous. It required EPM to submit medical evidence that
Harrison was in approximately the same good health he was in at the time of the inception of the
Policy—thus qualifying for a standard mortality class rating—so the Policy could be reinstated
upon the same terms. In fact, Harrison’s health had deteriorated from 2005 to 2012. At best, he
qualified for a substandard mortality class rating in 2012. Accordingly, the Court will grant
summary judgment to Columbus Life because it did not breach a contract nor act in bad faith
when it denied the Reinstatement Application.
For the foregoing reasons, Defendant’s Motion to Exclude the Report and Testimony of
Richard Mintzer (Doc. 28), Motion to Strike the Errata Sheet (Doc. 29), and Motion for
Summary Judgment (Doc. 25) are GRANTED.
IT IS SO ORDERED.
Dated this 11th day of October, 2017.
BY THE COURT:
S/Susan J. Dlott_________
Susan J. Dlott
United States District Judge
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