Duncan v. Primerica Life Ins. Co. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHIRLEY DUNCAN, No. 2:21-cv-01106-JAM-DMC 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN 14 PRIMERICA LIFE INSURANCE PART DEFENDANT’S MOTION FOR COMPANY, SUMMARY JUDGMENT 15 Defendant. 16 17 This case concerns the sole beneficiary of a life insurance 18 policy, Shirley Duncan (“Plaintiff”) and the issue of whether she 19 is entitled to the proceeds of her decedent husband’s policy with 20 Primerica Life Insurance Company (“Defendant”). As discussed 21 below, this case also involves a legal issue of first impression 22 involving statutory interpretation and unique circumstances and 23 facts regarding a life insurance policy that had lapsed due to 24 one non premium payment over nearly 25 years and a life insurance 25 company that did not notify Plaintiff, as the sole beneficiary 26 under the policy, of the payment lapse. 27 The parties have filed cross motions for summary judgment on 28 Plaintiff’s complaint. See Mot. for Partial Summary Judgment 1 (“Duncan Mot.”), ECF No. 38; Mot. for Summary Judgment 2 (“Primerica Mot.”), ECF No. 39. Plaintiff asserts two claims for 3 breach of contract and one claim for breach of the implied duty 4 of good faith and fair dealing against Defendant for its denial 5 of life insurance benefits following the death of her husband 6 Larry Duncan (“Decedent”). See Compl., ECF. No. 1. 7 For the reasons set forth below, this Court GRANTS 8 Plaintiff’s motion on her breach of contract claim concerning the 9 life insurance policy’s death benefit and GRANTS Defendant’s 10 cross motion on Plaintiff’s breach of contract claim concerning 11 the insurance policy’s Terminal Illness Accelerated Benefit 12 (“TIAB”) and Plaintiff’s claim for breach of the implied duty of 13 good faith and fair dealing. 14 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 15 Plaintiff’s late husband, Larry Duncan (“Decedent”) obtained 16 a life insurance policy with Defendant in 1995 and was the 17 policy’s sole owner. Statement of Undisputed Material Facts 18 (“Primerica UMF”) No. 1-2, ECF No. 39. The policy provided 19 $300,000 in coverage for Decedent’s life and a $100,000 rider to 20 the policy for Plaintiff’s life. Id. No. 3. The policy also 21 included a TIAB Rider that would have advanced Decedent or his 22 designee with 40% of the face value of the policy in the event 23 Decedent applied for the TIAB in writing and submitted a 24 physician statement diagnosing him with a terminal illness that 25 would result in death in less than six months from the date of 26 the physician statement. Id. No. 56. 27 Plaintiff is, and at all times was, the sole beneficiary of 28 Decedent’s life insurance policy. Statement of Undisputed Facts 1 (“Duncan UMF”) No. 6, ECF No. 38. Decedent’s policy required the 2 quarterly payment of premiums by Decedent. Primerica UMF No. 8. 3 Prior to 2020, Decedent never missed a premium payment. On 4 May 4, 2020, Defendant mailed Decedent a premium due notice for 5 $4,637.24 covering the period of May 25, 2020 to August 25, 2020, 6 due by May 25, 2020. Id. No. 30. About one month later, 7 Primerica mailed Decedent a Notice of Potential Lapsed Policy 8 (“lapse notice”), notifying him that the $4,637.24 payment was 9 due by July 24, 2020 or else the policy would lapse. Id. No. 33. 10 A couple of weeks later, Decedent paid the amount due ahead of 11 the July 24, 2020 deadline. Id. No. 37. Defendant claims that 12 it mailed Decedent a premium due notice for $5,747.06 covering 13 the period of August 25, 2020 to November 25, 2020, due by 14 August 25 and then sent Decedent a lapse notice on September 23, 15 2020 after Decedent failed to submit payment; Defendant informed 16 Decedent payment was due by October 24, 2020 or his policy would 17 lapse. Id. No. 38-40. Plaintiff contends that Defendant has 18 failed to prove that this lapse notice was sent to Decedent. 19 Response to Primerica UMF (“Duncan Response”) No. 38-39, Opp’n, 20 ECF No. 40. The Court disagrees. 21 No payment was made on the policy after Decedent’s July 2020 22 payment of $4,637.42. Primerica UMF No. 45. Decedent was 23 hospitalized on or about November 9, 2020 and died on 24 December 20, 2020 of renal cancer. Id. No. 41, 47; Duncan UMF 25 No. 17. At no time did Decedent make a claim for the TIAB; the 26 claim for the TIAB was made for the first time by Plaintiff in 27 this action. Duncan Response No. 57. Defendant has not been 28 provided with a physician statement diagnosing Decedent with a 1 medical condition that would result in Decedent’s death within 2 six months. Primerica UMF No. 58. Defendant denied Plaintiff’s 3 claim for benefits from Decedent’s policy due to the policy’s 4 lapse in October 2020. Id. No. 54. Defendant alleges that from 5 2013 to 2020, Defendant mailed Decedent notices of his right to 6 designate a third party to receive a copy of lapse notices or to 7 change any prior designation. Id. No. 51. Plaintiff claims that 8 she never received these communications. Duncan Response No. 51- 9 52. 10 Decedent did not designate any third-party to receive copies 11 of lapse notices. Primerica UMF No. 53. Plaintiff did not open 12 Decedent’s mail or pay the family’s bills at all for their entire 13 marriage, including up to Decedent’s death. Duncan UMF No. 17. 14 Plaintiff filed her complaint on June 22, 2021 asserting two 15 claims for breach of contract and one claim for breach of the 16 implied duty of good faith and fair dealing against Defendant. 17 See Compl. A couple of months later, Defendant filed its answer. 18 See Answer, ECF No. 7. On October 13, 2022, Plaintiff filed her 19 motion for partial summary judgment seeking judgment on her two 20 breach of contract claims. See Duncan Mot. Defendant filed a 21 cross motion for summary judgment a couple of weeks later seeking 22 judgment on all three claims. See Primerica Mot. 23 24 II. OPINION 25 A. Legal Standard 26 Summary judgment is proper “if the pleadings, depositions, 27 answers to interrogatories, and admissions on file, together with 28 affidavits, if any, show that there is no genuine issue of 1 material fact and that the moving party is entitled to judgment 2 as a matter of law.” Fed. R. Civ. P. 56(c). The moving party 3 bears the initial burden of demonstrating the absence of a 4 genuine issue of material fact for trial. Anderson v. Liberty 5 Lobby, Inc., 447 U.S. 242, 248–49 (1986). If the moving party 6 meets its burden, the burden of production then shifts so that 7 “the non-moving party must set forth, by affidavit or as 8 otherwise provided in Rule 56, ‘specific facts showing that there 9 is a genuine issue for trial.’” T.W. Elec. Serv., Inc. v. 10 Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th 11 Cir.1987). The Court must view the facts and draw inferences in 12 the manner most favorable to the non-moving party. United States 13 v. Diebold, Inc., 369 U.S. 654, 655 (1962). 14 B. Analysis 15 1. Claim One: Breach of Contract (Terminal Illness 16 Accelerated Benefit) 17 Plaintiff contends that she is at least entitled to 18 Decedent’s Terminal Illness Accelerated Benefit (TIAB), amounting 19 to 40% of the face value of Decedent’s life insurance policy 20 ($120,000), on two grounds: (1) Decedent had a terminal illness 21 while his life insurance policy was still in effect and Defendant 22 cannot show that it was prejudiced by its lack of notice of his 23 terminal illness; and (2) the TIAB coverage did not lapse because 24 Defendant’s policy form did not offer waiver of premium payments, 25 in violation of California Insurance Code § 10295.14. Duncan 26 Mot. at 17–20. As for her first argument, it is undisputed that 27 Decedent had a terminal illness by June 2020 and that his policy 28 was in force on that date. Id. at 17. Even though Defendant was 1 not notified of Decedent’s terminal illness and Decedent did not 2 formally apply for the TIAB, as required by Defendant’s policy, 3 Plaintiff relies on Lat v. Farmers New World Life Ins. Co to 4 support her contention that her claim to the TIAB can only be 5 denied if Defendant can establish that it was actually prejudiced 6 by the lack of timely notice or proof of her claim. 29 Cal.App. 7 5th 191, 217 (2018); Duncan Mot. at 18. Plaintiff argues that 8 Defendant cannot establish that it was prejudiced by the fact 9 that Decedent did not notify it of his renal cancer, so Plaintiff 10 is entitled to the TIAB. Duncan Mot. at 19. Also, Plaintiff 11 claims that the TIAB coverage did not lapse because Defendant’s 12 TIAB policy did not discuss or offer waiver of premium payments, 13 which is required under Insurance Code § 10295.14. Id. 14 Plaintiff argues that this section must be applied retroactively 15 to Decedent’s policy. Id. Therefore, assuming Decedent’s policy 16 had included a waiver of premium payments due to terminal 17 illness, Decedent’s policy would not have lapsed due to a failure 18 to pay past due premiums and Decedent would have been entitled to 19 the TIAB. Id. at 19-20. 20 Defendant responds that Plaintiff’s claim to the TIAB fails 21 on multiple grounds. Defendant states that Plaintiff failed to– 22 and cannot–meet several of the TIAB Rider’s terms and conditions; 23 it is not enough for Decedent to have simply passed within a 24 short time after his diagnosis of renal cancer. Primerica Mot. 25 at 26-27. Defendant argues that Plaintiff has failed to: 26 (1) produce a physician statement diagnosing Decedent with a 27 terminal illness that would result in death in less than six 28 months while the policy was in effect; (2) show that Decedent 1 applied for and requested the TIAB, as required by the policy; 2 and (3) demonstrate that she is legally entitled to the TIAB as 3 the benefit is payable only to the policy owner (or their estate 4 upon death) or their designee. Id. at 27-29. Defendant further 5 argues that Plaintiff’s reliance on Lat is misplaced because in 6 that case there was no dispute about whether the policy owner was 7 totally disabled within the meaning of the policy at issue; the 8 only issue was whether the insurer could deny the benefit due to 9 a failure to request it earlier. Id. at 28-29. In this case, 10 Defendant argues that the issue is whether Decedent qualified for 11 the TIAB at all because there is a genuine dispute about whether 12 his renal cancer constituted a terminal illness. Id. at 29. 13 The Court finds Defendant’s argument persuasive. Summary 14 judgment is proper “if the pleadings, depositions, answers to 15 interrogatories, and admissions on file, together with 16 affidavits, if any, show that there is no genuine issue of 17 material fact and that the moving party is entitled to judgment 18 as a matter of law.” Fed. R. Civ. P. 56(c). A cause of action 19 for breach of contract requires (1) a contract, (2) plaintiff's 20 performance or excuse for failure to perform, (3) defendant's 21 breach and, (4) damage to plaintiff resulting therefrom. Spinks 22 v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 23 1004, 1031 (2009). As Plaintiff points out, Defendant’s TIAB 24 policy contains a “Conformity with State Statutes” section that 25 necessarily incorporates Insurance Code § 10295.14, namely its 26 requirement that a waiver of premium benefit be included as a 27 part of Decedent’s TIAB policy. Duncan Mot. at 19. However, 28 even if the Court considers this inclusion and assumes that 1 Decedent’s policy did not lapse, Plaintiff’s claim must fail 2 because there is no genuine issue of material fact regarding 3 Plaintiff and Decedent’s failure to comply with Defendant’s TIAB 4 policy. In short, Plaintiff cannot establish the second element 5 of her cause of action–Plaintiff’s performance or excuse for her 6 failure to perform. It is undisputed that neither Plaintiff nor 7 Decedent: (1) formally applied for Decedent’s TIAB; or 8 (2) submitted a physician’s statement to Defendant certifying 9 that Decedent suffered from a terminal illness that would result 10 in death within six months with a reasonable degree of medical 11 certainty. Plaintiff and Decedent’s undisputed failure to take 12 these actions bars recovery under this claim. The Court also 13 agrees with Defendant that Plaintiff’s reliance on Lat is 14 misplaced. This case is distinguishable because (1) Plaintiff 15 has failed to submit any notice or proof of Decedent’s claim to 16 the TIAB to Defendant outside of her pleadings in this case, as 17 opposed to the late submission in Lat and (2) there is a genuine 18 dispute over whether Decedent’s condition qualified for the 19 policy benefit at issue. In the absence of a genuine issue of 20 material fact regarding whether Defendant breached its contract 21 with Decedent regarding the TIAB, the Court finds that a breach 22 has not occurred and Defendant is entitled to summary judgment in 23 its favor on this claim. 24 2. Claim Two: Breach of Contract (Death Benefit) 25 Plaintiff argues that she is entitled to Decedent’s death 26 benefit ($300,000) because Defendant failed to comply with 27 Insurance Code §§ 10113.71 and 10113.72. Duncan Mot. at 10, 15. 28 As for § 10113.71, Plaintiff claims that the code required 1 Defendant to send a lapse notice addressed specifically to her, 2 and not just one to Decedent; Plaintiff claims that, as the sole 3 beneficiary of Decedent’s policy, she qualifies as a “person 4 having an interest in the individual life insurance policy” under 5 § 10113.71(b)(1). Id. at 12–13. Plaintiff relies on Bentley v. 6 United of Omaha Life and Moriarty v. American General Life 7 Insurance Company to support her contention that she was entitled 8 to a lapse notice addressed specifically to her, otherwise 9 Decedent’s policy could not have lapsed due to non-payment of his 10 premiums. 371 F. Supp. 3d723,739-40 (C.D. Cal. 2019); 3:17-cv- 11 1709-BTM-WVG, at *7 (S.D. Cal. July 26, 2022). It is undisputed 12 that she did not receive any notice from Defendant. Duncan Mot. 13 at 15. Plaintiff also argues that Defendant failed to comply 14 with § 10113.72 by not sending a designation form to Decedent 15 that would have allowed him to select a third-party to receive 16 lapse notices in addition to Decedent. Id. at 15. At most, 17 Defendant simply sent Decedent a document with a link to a 18 website and phone number, through which he could submit third- 19 party information; but Plaintiff contends that this does not 20 comply with § 10113.72’s requirements and that Defendant has 21 failed to prove that it even sent this letter to Decedent at all. 22 Id. at 15-17. Plaintiff also claims that this document was not 23 sent by first-class mail. Id. at 17. 24 Defendant responds that it did not commit a breach of 25 contract by denying Plaintiff’s claim to Decedent’s death benefit 26 because Decedent’s policy lapsed prior to his death. Primerica 27 Mot. at 9. Defendant claims it is undisputed that: 28 (1) Decedent’s last payment on the policy was July 15, 2020, 1 covering the period of May 25 to August 25, 2020; (2) Decedent 2 did not make payment on the premium covering the period of August 3 25 to November 25, 2020; and (3) the policy was set to lapse on 4 October 24, 2020. Id. at 9-10. Defendant argues that it was not 5 required to send a lapse notice to Plaintiff and distinguishes 6 the cases cited by Plaintiff. Id. at 11–12. Defendant asserts 7 that those cases involved insurance companies that incurred 8 liability because they did not mail lapse notices to the policy 9 owner or their designee (selected pursuant to § 10113.72); 10 neither case affirmatively held that one’s status as a policy 11 beneficiary entitles them to receive lapse notices. Id. at 12– 12 16. Therefore, Defendant did not violate § 10113.71 by not 13 sending a lapse notice to Plaintiff. Id. at 16. 14 As for § 10113.72, Defendant argues that the duty under 15 subsection (a) to send a designation form is inapplicable because 16 it only applies to policy applicants, not those with existing 17 policies like Decedent; under the code, Defendant was simply 18 required to send Decedent annual notice of his right to designate 19 a third-party to receive lapse notices or change an existing 20 designation. Id. at 16. Defendant argues that it complied with 21 the code and sent these notices (along with its final lapse 22 notice to Decedent only on September 23, 2020) and that 23 Plaintiff’s alleged lack of knowledge about whether Decedent 24 received these mailings does not create a triable issue of fact, 25 particularly considering the undisputed facts and Plaintiff’s 26 admission that she never opened mailings addressed to Decedent. 27 Id. at 19-20, 24-25. 28 The Court finds that there is no genuine dispute of material 1 fact regarding Plaintiff’s breach of contract claim on Decedent’s 2 death benefit and that Plaintiff is entitled to judgment in her 3 favor as a matter of law as Plaintiff qualifies under Insurance 4 Code § 10113.71 as a “person having an interest in the individual 5 life insurance policy.” A cause of action for breach of contract 6 requires (1) a contract, (2) plaintiff's performance or excuse 7 for failure to perform, (3) defendant's breach, and (4) damage to 8 plaintiff resulting therefrom. Spinks, 171 Cal. App. at 1031. 9 When interpreting a statute, courts must “determine and give 10 effect to the [l]egislature’s underlying purpose in enacting the 11 statutes at issue.” McHugh v. Protective Life Ins. Co., 12 Cal. 12 5th 213, 227 (2021). The Court must first consider the express 13 terms of the statute then, if the terms are ambiguous, consider 14 extrinsic sources like the legislative history. Id. (citing In 15 re H.W.,6 Cal.5th 1068, 1073 (2019)). Insurance Code 16 § 10113.71(b)(1) states that a lapse notice must be sent to “the 17 named policy owner, a designee named pursuant to § 10113.72 for 18 an individual life insurance policy, and a known assignee or 19 other person having an interest in the individual life insurance 20 policy.” (emphasis added). The Insurance Code provides no express 21 interpretation of who constitutes a person having an interest in 22 a policy and the parties offer conflicting interpretations, so 23 the Court must examine the legislative history of Insurance Code 24 § 10113.71. There is also no binding precedent involving the 25 interpretation of this statute to assist the Court here. 26 As the California Supreme Court noted in McHugh, the 27 legislative materials on Assembly Bill No. 1747 stated that the 28 purpose of the bill was to provide “consumer safeguards from 1 which people who have purchased life insurance coverage, 2 especially seniors, would benefit.” Id. at 241 (quoting Senate 3 Insurance Com., Analysis of Assem. Bill No. 1747 (2011-2012 Reg. 4 Sess.) as amended Apr. 26, 2012, at 2 [hereinafter Assembly Bill 5 Analysis]). The legislative comments specifically reference 6 assignees and creditors as examples of persons having an interest 7 in the individual life insurance policy and leave open the 8 possibility of other persons who would qualify under the statute. 9 Assembly Bill Analysis at 3. The McHugh court further noted that 10 the legislature intended for the code sections at issue to 11 protect policy owners who spend years paying for life insurance 12 policies “on which their loved ones depend.” 12 Cal. 5th at 246. 13 Plaintiff and Decedent clearly fall into this category of policy 14 owners. 15 Defendant’s reliance on Rosen v. Pac. Life Ins. Co. (a non- 16 binding state court of appeals decision) is misplaced and 17 unpersuasive because the court in that case declined to look 18 beyond the express terms of § 10113.71 and its related provisions 19 when the court narrowly interpreted the statute to deny the 20 plaintiff’s right to a lapse notice as the sole beneficiary of 21 her decedent husband’s life insurance policy. No. G053511, 2017 22 WL 4296655, at *2-3 (Cal. Ct. App. Sept. 28, 2017). The Rosen 23 court construed the ambiguity of the statute’s “other person 24 having an interest” language without considering key extrinsic 25 sources, namely the aforementioned legislative materials on 26 AB 1747, which demonstrate that the legislative purpose behind 27 the statute is directly applicable to Plaintiff’s circumstances. 28 The Court also finds that the Rosen court’s claim that a finding 1 in favor of beneficiaries would unduly burden insurers in 2 determining who should receive notice lacks merit; the 3 technological advancements in client outreach and communication 4 have advanced to such an extent that any alleged burden is slight 5 and greatly outweighed by the need for adequate notice to persons 6 having an interest in an insurance policy like Plaintiff. Rosen, 7 No. G053511, 2017 WL 4296655 at *3; see United States v. Coca- 8 Cola Bottling Co. of Los Angeles, 575 F.2d 222, 228 (9th Cir. 9 1978) (finding that federal courts can consider the public 10 interest when exercising their inherent equitable powers to grant 11 necessary relief in a particular case). 12 Decedent, a senior citizen, spent nearly 25 years timely 13 paying Defendant premiums on his life insurance policy with the 14 sole beneficiary being Plaintiff during this time. Neither party 15 has alleged that Decedent assigned an interest in the policy to 16 any other person or creditor, so it is undisputed that the only 17 person with a cognizable interest in the policy for the entirety 18 of its duration was Plaintiff; it is also undisputed that 19 Plaintiff did not receive a lapse notice addressed specifically 20 to her. Plaintiff’s uninterrupted expectancy interest is 21 sufficient to qualify her as a “person having an interest” in 22 Decedent’s policy, such that she should have received a lapse 23 notice at least thirty days prior to the termination of 24 Decedent’s policy. See Life Ins. Co. of N. Am. v. Cassidy, 35 25 Cal. 3d 599, 605(1984) (stating that named beneficiaries of 26 insurance policies have an expectancy interest in the policy). 27 Absent a genuine issue of material fact regarding whether 28 Plaintiff received a lapse notice from Defendant, the Court finds 1 that Defendant has violated § 10113.71 and breached its contract 2 with Decedent and Plaintiff, entitling Plaintiff to Decedent’s 3 full death benefit as a matter of law. 4 3. Claim Three: Breach of Implied Duty of Good Faith 5 and Fair Dealing 6 Defendant contends that Plaintiff’s third claim must fail 7 because Plaintiff cannot succeed on either of her breach of 8 contract claims, which means that no benefits are due to her 9 under Decedent’s policy. Primerica Mot. at 29–30. 10 Alternatively, Defendant argues that this claim must fail because 11 Plaintiff cannot show that Defendant’s denial of her claim was 12 unreasonable; there is a genuine dispute as to whether Decedent’s 13 policy had lapsed. Id. at 30–31. 14 Plaintiff concedes that her claim for breach of the implied 15 duty of good faith and fair dealing must be dismissed if the 16 Court finds that there was no breach of contract by Defendant. 17 Opp’n at 16. However, Plaintiff claims that Defendant has 18 continuously failed to conduct a complete and thorough 19 investigation of Decedent’s claim by: (1) not reaching out to 20 Plaintiff to investigate Decedent’s circumstances; (2) not 21 examining Decedent’s medical records; (3) not coordinating 22 between investigative staff due to Defendant’s staff working 23 remotely; and (4) doing a limited review of Plaintiff’s claim in 24 response to the Department of Insurance inquiry initiated by 25 Plaintiff. Id. at 16–18. 26 The Court finds Defendant’s argument persuasive. To 27 establish a breach of the implied duty of good faith and fair 28 dealing, a plaintiff must show that: (1) benefits due under a 1 policy were withheld; and (2) the reason for withholding the 2 benefits was unreasonable or without proper cause. Mosley v. 3 Pac. Specialty Ins. Co., 49 Cal. App. 5th 417, 435 (2020). 4 However, a bad faith claim “cannot be maintained unless policy 5 benefits are due;” if there is no coverage “there can be no 6 liability for bad faith on the part of the insurer.” Love v. 7 Fire Ins. Exch., 221 Cal. App. 3d 1136, 1153 (Ct. App. 1990); 8 Kransco v. Am. Empire Surplus Lines Ins. Co., 23 Cal. 4th 390, 9 408 (2000). Furthermore, the insured must show that the 10 insurer’s conduct was prompted by a conscious and deliberate act, 11 as opposed to an honest mistake, bad judgment, or negligence; 12 insurers that deny benefits incorrectly but reasonably are only 13 liable for damages flowing from the underlying breach of 14 contract. Mosley, 49 Cal. App. 5th at 436. In light of the 15 Court’s judgment in favor of Defendant on Plaintiff’s TIAB claim, 16 the Court finds that Defendant’s denial of the TIAB was 17 reasonable. The Court also finds that Plaintiff has failed to 18 sufficiently demonstrate that Defendant’s conduct regarding the 19 death benefit rises to the level of a conscious and deliberate 20 act such that Plaintiff would be entitled to damages beyond the 21 $300,000 death benefit. Thus, the Court finds that Defendant is 22 entitled to summary judgment in its favor on this claim. 23 24 III. ORDER 25 For the reasons set forth above, this Court GRANTS 26 Defendant’s motion for summary judgment on Plaintiff’s TIAB 27 breach of contract claim and Plaintiff’s claim for breach of the 28 implied duty of good faith and fair dealing and this Court GRANTS nee nn nen ee OI OEE EO EE 1 Plaintiff’s motion for summary judgment on her death benefit 2 breach of contract claim. 3 IT IS SO ORDERED. 4 Dated: February 10, 2023 JM fn JOHN A. MENDEZ 7 SENIOR UNITED*STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16