Opinion
No. 00 C 2757
June 11, 2002
MEMORANDUM OPINION
Defendant, Minnesota Life Insurance Company ("Minnesota Life"), moves to amend the Memorandum Opinion dated May 16, 2002, in which we held that Minnesota Life proximately caused the late payment of premiums on plaintiff's insurance policies. Defendant contends that the evidence offered by plaintiff with regard to the parties' cross-motions for summary judgment presents a genuine issue of material fact regarding proximate cause. According to defendant, three items show that defendant did initiate a charge to plaintiff's bank account on August 22, 1997, as defendant had represented to plaintiff that it would do, and thus that defendant did not proximately cause the default.
We first note that defendant did not make this argument in its earlier briefs. In fact, defendant made the following admission in its statement of material facts: "For the premium due on August 21, 1997, the actual date Minnesota Life attempted to withdraw the funds from Plaintiff's account was on August 26, 1997." (Defendant's Statement of Material Facts, ¶ 10.) Defendant repeated this statement in its memorandum of law in support of its motion. (Defendant's Memorandum at 1-2.)
Furthermore, the evidence defendant now points to does not support its argument that it initiated a charge to plaintiff's bank account on August 21 or 22, 1997. Neither of the excerpts from the deposition testimony of two Minnesota Life representatives indicate that Minnesota Life initiated a charge on either of those dates. In fact, one of the representatives was asked the following: "Do you know why the automatic bank draft for [plaintiff] in August of 1997 was not triggered on the date that she had specified or that the [computer] system had specified for the issuance of that draft?" The representative replied, "No." (Plaintiff's Statement of Facts, Ex. C, Dep. of Ruth Hallock, at 16.) The third item, a document that is Bates stamped "M00015," attached as part of Exhibit 10 to plaintiff's statement of material facts, appears to be some kind of schedule containing columns titled "check day," "run date," and "deposit date," and listing numbers and certain handwritten notations of days of the week. The document is titled "App Schedule for August 1997." Defendant does not explain what this schedule represents, what the columns represent, who prepared it, or when it was prepared. In any event, it certainly does not show that Minnesota Life in fact initiated a charge to plaintiff's bank account on August 21 or 22, 1997.
Defendant's motion to amend the Memorandum Opinion of May 16, 2002 is denied.