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Creamer v. American Family Life Assurance Company of Columbus

United States District Court, N.D. West Virginia

August 11, 2017

REBECCA K. CREAMER, as Executrix of the Last Will and Testament of Betty J. Wade, Deceased, Plaintiff,



         Currently pending before the Court is the Plaintiff's Motion for Partial Summary Judgment [ECF No. 34] and the Defendant's Motion for Summary Judgment [ECF No. 35]. On July 12, 2017, the matters became ripe for consideration. Based upon the reasoning set forth below, the Court DENIES the Plaintiff's motion and GRANTS the Defendant's motion IN PART.

         I. Background

         The Plaintiff's claims arise out of alleged nonpayment of insurance benefits to Betty J. Wade during her lifetime. On July 7, 1997, Wade purchased a long-term care insurance policy, which was underwritten by the Defendant. ECF No. 1-1 at 2, 10. Many years later, on September 1, 2013, [1] Wade moved into Golden Harvest, a legally unlicensed personal care home located in Bridgeport, West Virginia. ECF No. 1-1 at 2, 11. In August of 2014, she attempted to file a claim for benefits under the policy. See ECF Nos. 34-2; 35-2 at 2; 35-3 at 2-17. On August 25, 2014, and again on September 22, 2014, the Defendant mailed letters to Golden Harvest and Wade requesting additional information-specifically, a long-term care claim form completed by the Nursing Director of Golden Harvest-that was necessary to complete a review of the claim. ECF Nos. 34-3; 34-4; 34-5; 35-3 at 20-27. The form was not completed or provided to the Defendant at that time and the Defendant did not evaluate Wade's claim in 2014. See ECF No. 35-2 at 2-3. The insurance policy continued to remain in effect until June 4, 2016, the date of Wade's death. ECF No. 1-1 at 2, 10.

         On July 20, 2016, the Plaintiff, the Executrix of Wade's estate, filed a complaint in state court alleging breach of contract (Count I), multiple violations of § 33-11-4(9) of West Virginia's Unfair Claims Settlement Practices Act (“UCSPA”) (Count II), violation of § 33-15A-6(1) of West Virginia's Long-Term Care Insurance Act (Count III), and requesting punitive damages (Count IV). ECF No. 1-1 at 1-8. On September 9, 2016, the case was removed to this Court based upon diversity jurisdiction. ECF No. 1. Thereafter, in late December of 2016, the long-term care claim form was completed by Golden Harvest's Nursing Director and provided to the Defendant. See ECF Nos. 35-2 at 2; 35-4 at 2; 39 at 11-12. Upon receipt of the form and review of the claim, the Defendant determined that Wade's estate was entitled to $45, 400.00 in nursing home benefits and $2, 815.00 for the premium waiver. ECF No. 39 at 11-12.

         On June 7, 2017, the parties filed cross-motions for summary judgment. ECF Nos. 34, 35. In her motion, the Plaintiff moves for partial summary judgment as to her breach of contract claim, arguing that she is entitled to judgment in the amount of $48, 215.00. In its motion for summary judgment, the Defendant avers that, because it agreed to pay benefits under the policy, the Plaintiff's breach of contract claim is now moot. Additionally, the Defendant states that the Plaintiff fails to put forth any actual evidence in support of her remaining claims and thus it is entitled to summary judgment in its favor.

         II. Standard of Review

         Summary judgment may be granted where the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). At this dispositive stage, the court must determine whether there is a need for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986). As such, if the plaintiff fails to come forward with evidence demonstrating each essential element of his claim, judgment will be entered against him. Celotex, 477 U.S. at 322-23.

         To successfully oppose a motion for summary judgment, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation and citation omitted), by furnishing affidavits, depositions or other evidence, see Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323-25; Anderson, 477 U.S. at 247-48. Importantly, the nonmoving party cannot defeat summary judgment “without offering any concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. A “scintilla of evidence” in support of his position is insufficient. Id. at 252. In conducting its review, the court must view the evidence and inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         III. Discussion

          A. Count I

         In regard to the Plaintiff's breach of contract claim, she states that, under the terms of the policy, the Defendant has an affirmative duty to pay benefits. Notably, following removal to this Court, and subsequent to obtaining the information required to process Wade's insurance claim, [2] the Defendant reviewed the application for long-term benefits under the policy and found that they are warranted. See ECF No. 39 at 11-12. Accordingly, on April 28, 2017, the Defendant notified Plaintiff's counsel that payment would be issued in the amount of $45, 400.00 for nursing home benefits and $2, 815.00 for the premium waiver. ECF No. 39 at 11-12. However, merely because the Defendant agrees to pay benefits does not render the Plaintiff's breach of contract claim moot. Importantly, because the Plaintiff has not actually received payment, her alleged damages still exist.

         Moreover, and arguably more imperative to the Court's decision as to Count I, the insurance policy of which the Defendant is allegedly in breach does not appear anywhere on the Court's docket. It was not submitted as an exhibit to either party's motion for summary judgment and is not filed as an attachment to the complaint. To prove breach of contract in West Virginia, the plaintiff must demonstrate that (1) a contract exists between the parties, (2) the defendant breached a term of that contract and (3) damages resulted from the breach. Wittenberg v. Wells Fargo Bank, N.A., 825 F.Supp.2d 731, 749 (N.D. W.Va. 2012). Clearly, in light of the policy's absence, the Court cannot determine if the Defendant is now or was ever in breach of its terms. As such, both sides fall woefully short of their summary judgment burden because they each fail to present evidence as to the chief element of the Plaintiff's breach of contract claim: the contract. See Celotex, 477 U.S. at 323 (“[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”) Put simply, a reasonable juror would be unable to find for either side in regard to Count I and, at this stage in the proceedings, this error is fatal to both motions for summary judgment.

         Despite the lack of evidence presented to this Court, the parties appear to agree that an enforceable insurance policy exists and that benefits are due under that policy. In light of this agreement, the Court does not find any reason prohibiting the parties from settling this claim on their own accord. Consequently, they are ORDERED ...

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