Blumenthal v. New York Life Insurance & Annuity Corp. , 445 F. App'x 59 ( 2011 )


Menu:
  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    October 13, 2011
    FOR THE TENTH CIRCUIT
    Elisabeth A. Shumaker
    Clerk of Court
    IRVING H. BLUMENTHAL, JR.,
    individually and on behalf of all
    similarly situated insured of New York
    Life Insurance and Annuity
    Corporation,                                         No. 10-6246
    (D.C. No. 5:08-CV-00456-F)
    Plaintiff-Appellant,                     (W.D. Okla.)
    v.
    NEW YORK LIFE INSURANCE
    AND ANNUITY CORPORATION,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
    Irving H. Blumenthal, Jr. appeals from the district court’s grant of summary
    judgment to New York Life Insurance and Annuity Corporation (NYLIAC) in this
    suit concerning a universal life insurance policy that NYLIAC sold to
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Mr. Blumenthal in 1999. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we
    affirm.
    Background
    NYLIAC issued to Mr. Blumenthal a universal life insurance policy dated
    June 12, 1999, that provided a death benefit of $1,000,000. The policy had a
    maturity date of June 12, 2032, and called for monthly premium payments of
    $4,420.50. But $4,420.50 per month was not enough to keep the policy in force
    through its maturity date. Without additional premium payments, the policy’s
    cash value and death benefit would lapse at some point; exactly when depended
    on the credited interest rate and costs. Mr. Blumenthal asserted that he did not
    learn these critical facts until November 2006, when NYLIAC provided him with
    an illustration showing that the policy’s cash value and death benefit would be
    zero as early as year 13 or as late as year 17 of the policy. After receiving this
    information, he cancelled the policy.
    In April 2008, Mr. Blumenthal filed suit against NYLIAC for fraud and
    misrepresentation, breach of contract, unjust enrichment, and recission. The
    district court granted NYLIAC’s motion for summary judgment on the ground
    that each claim was barred by the applicable Oklahoma statutes of limitation. The
    court concluded that certain written materials provided to Mr. Blumenthal in
    connection with the issuance of the policy were sufficient to put him on notice of
    -2-
    the basis of his claims in 1999, making his 2008 suit untimely. Mr. Blumenthal
    appeals.
    Analysis
    We review the district court’s grant of summary judgment de novo. See
    Alexander v. Oklahoma, 
    382 F.3d 1206
    , 1215 (10th Cir. 2004); see also Wright v.
    Sw. Bell Tel. Co., 
    925 F.2d 1288
    , 1290 (10th Cir. 1991) (“We review a district
    court’s ruling on the applicability of a statute of limitations de novo.”). “The
    court shall grant summary judgment if 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). “[I]f the statute of limitations depends on
    disputed [material] facts, then summary judgment is inappropriate.” Wolf v.
    Preferred Risk Life Ins. Co., 
    728 F.2d 1304
    , 1306 (10th Cir. 1984).
    Having considered the briefs and the record, we conclude that the district
    court did not err in determining that Mr. Blumenthal should have been on notice
    of the basis of his claims long before November 2006. It is undisputed that in
    July 1999, Mr. Blumenthal was provided pages 5 and 6 of a certain policy
    illustration. The information set forth in those pages would put a reasonable
    person on notice that the anticipated premiums might be insufficient to maintain
    the policy until its maturity date, and that the policy coverage could end as early
    as year 6. Mr. Blumenthal admitted that he never would have bought the policy if
    he had read this information when it was provided to him. Accordingly, for
    -3-
    substantially the same reasons stated by the district court in its Order filed on
    September 27, 2010, the judgment of the district court is AFFIRMED.
    Entered for the Court
    Michael R. Murphy
    Circuit Judge
    -4-
    

Document Info

Docket Number: 10-6246

Citation Numbers: 445 F. App'x 59

Judges: Murphy, Anderson, Hartz

Filed Date: 10/13/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024