Opinion
Cause No. IP99-1432-C-B/S.
November 29, 2000.
B Yvonne Ferguson-Watkins Ferguson-Watkins Associates Indianapolis, IN.
Andrew W Hull Johnson Smith Pence Heath LLP Indianapolis, IN.
Plaintiffs, Roberta C. Bunton and Charles Edward Bunton, III, allege that Defendant, Prudential Insurance Company of America ("Prudential"), erroneously denied a claim for death benefits resulting from the suicide of her husband, Sergeant Charles Bunton ("Sgt. Bunton"), while Sgt. Bunton was in custody awaiting court martial trial. Prudential, the insurer and administrator of Service members' Group Life Insurance ("SGLI"), a government-sponsored life insurance program benefitting members of the United States Armed Forces, their families and dependants, and governed by the provisions of 38 U.S.C. § 1965, et seq., contends that under the relevant statutory provisions and the terms of the insurance plan which provides for SGLI benefits, Sgt. Bunton was ineligible for life insurance benefits at the time of his death. Prudential moves for moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, contending that judgment as a matter of law should enter in its favor. Plaintiffs respond that there exists a genuine issue of material fact and Prudential's motion should be denied. In addition to the summary judgment motion, we also have pending Defendant's motion to strike and Plaintiffs' request for an enlargement of time to file additional materials. For the reasons discussed below, we DENY both Prudential's motion to strike and Plaintiffs' request for an enlargement of time to file additional materials, and we GRANT Prudential's motion for summary judgment.
The Complaint was filed by Roberta C. Bunton, individually; however, Magistrate Judge Shields granted Ms. Bunton's request to join Charles Edward Bunton, III, as an indispensable party, under Federal Rule of Civil Procedure 19. Order of December 17, 1999. Despite the joinder of Charles Edward Bunton, III, counsel for Plaintiffs persists in submitting filings that purport to be in the name of Ms. Bunton alone and accordingly titled "Plaintiff's. . . ." To avoid any confusion, we refer herein to all of Plaintiffs' filings in the plural instead of in the singular.
Standard of Review and Relevant Legal Authority
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
With a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" to cite evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. However, mere "[c]onclusory allegations by the party opposing the motion cannot defeat the motion." Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in [his] favor on a material question, then the court must enter summary judgment against [him]." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986)); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52).
In considering a motion for summary judgment, a court must draw all reasonable inferences in a light most favorable to the non-movant. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). Thus, if genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but also required. Celotex, 477 U.S. at 322; Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).
Servicemen's Group Life Insurance
Congress enacted the Servicemen's Group Life Insurance Act ("SGLI"), 38 U.S.C. § 1965-1974, in 1965 to make life insurance coverage available to members of the uniformed services on active duty, particularly in combat zones. Ridgway v. Ridgway, 454 U.S. 46, 50 (1981). Under the SGLI program, the Administrator of Veterans' Affairs is authorized to purchase group life insurance for the benefit of uniformed United States servicemen. See 38 U.S.C. § 1966(a); Prudential Ins. Co. v. Tomaszek, No. 90-C-6892, 1992 WL 26734, at *1 (N.D.Ill. Feb. 7, 1992). Since SGLI was first enacted, statutory changes have expanded coverage so that the maximum benefit currently available is $200,000. See 38 U.S.C. § 1967(a).
As relevant to this action, SGLI benefits are available to "person[s] on active duty . . . in the uniformed services in a commissioned, warrant, or enlisted rank, or grade." § 1965(5)(A). "Active duty" is defined to mean "full-time duty in the Armed Forces, other than active duty for training." § 1965(1)(A). Eligibility for SGLI benefits commences on the first day of active duty and a member is automatically covered to the full extent of the statutory maximum unless he/she chooses to remain uninsured. 38 U.S.C. § 1969(a)(1). Premiums are deducted each month from the basic pay of those members who remain insured under SGLI "until separation or release from [active] duty." Id.
The statute expressly provides that any insurance benefits available under SGLI: shall cease —
(1) with respect to a member on active duty . . .—
. . .
(B) at the end of the thirty-first day of a continuous period of (i) absence without leave, (ii) confinement by civil authorities under a sentence adjudged by a civilian court, or (iii) confinement by military authorities under a court-martial sentence involving total forfeiture of pay and allowances. Any insurance so terminated as a result of such absence or confinement . . . shall be automatically revived as of the date the member is restored to active duty with pay.
§ 1968(a)(1)(B). Each policy issued pursuant to SGLI must include a provision containing this language. Id. In addition, any person "found guilty of mutiny, treason, spying, or desertion . . ., shall forfeit all rights to Servicemen's Group Life Insurance under this chapter." § 1973.
Facts
Pursuant to Public Law 89-214, Prudential is the insurer and administrator of Group Contract No. G-32000, issued in 1965 to the Secretary of Veterans Affairs, Department of Veterans Affairs, to provide for SGLI benefits (the "Plan"), benefitting members of the United States Armed Forces, their families and dependants, and governed by the provisions of 38 U.S.C. § 1965, et seq. Def.'s Statement of Material Facts ("Def.'s Facts") ¶¶ 1-2. Consistent with the requirements of 38 U.S.C. § 1968 discussed above, Article II, Section 1 of the Plan states:
The Full-Time Coverage on a member . . . who is insured . . . shall automatically terminate at the end of the day before the date of the thirty-second day of continuous period of (i) absence without leave. . . . Any Full-Time Coverage so terminated as a result of absence without leave . . . shall be automatically revived as of the date the member is restored to duty with pay.
Plan at 17.
On or about December 7, 1984, Sgt. Bunton enlisted in the United States Army ("Army"), thereby becoming eligible to receive military benefits, including SGLI benefits subject to the terms of the Plan. Id. ¶¶ 4-5. Sgt. Bunton elected life insurance coverage in the maximum allowable amount and on September 6, 1995, designated his son, Charles Edward Bunton, III as the sole beneficiary of these benefits. Id. ¶¶ 6-7.
In August 1996, the Army discovered that Sgt. Bunton was absent without leave ("AWOL") and on August 14, 1996, it changed Sgt. Bunton's military duty status from "present for duty" to AWOL. Id. ¶ 8. When Sgt. Bunton had not returned to the Army by September 16, 1996, he was dropped from the payroll and his status was designated as "dropped from the rolls" ("DFR"). Id. ¶ 9. As will be discussed more fully below, Prudential also contends that at this time Sgt. Bunton lost his SGLI benefits because, "pursuant to the Plan, a member who is AWOL for more than thirty-one (31) consecutive days shall not be insured under the Plan unless he is restored to active duty with pay." Id. ¶ 10.
On March 24, 1997, approximately six months after first going AWOL, Sgt. Bunton was returned to military control. Id. ¶ 11. Prudential asserts that Sgt. Bunton's status remained DFR and without pay. Id. On March 26, 1997, Sgt. Bunton escaped from custody and was once again classified as AWOL by the Army. Id. ¶ 12. On June 6, 1997, approximately seventy-two days later, Sgt. Bunton was again returned to military control (Prudential contends without pay) and placed into pre-trial confinement at the Regional Corrections Facility in Fort Knox, Kentucky. Id. ¶ 13.
On October 18, 1997, while under military confinement in Fort Knox awaiting court martial trial, Sgt. Bunton committed suicide and was found dead in his cell. Id. ¶ 15. Thus, for the entire period between the time when Sgt. Bunton first went AWOL in August 1996 until his death on October 18, 1997, Sgt. Bunton was either AWOL or under military confinement awaiting trial for court martial. Prudential asserts, in addition, that during this time the Army never returned Sgt. Bunton to "active duty with pay" status. Id. ¶ 14.
Following Sgt. Bunton's death, Roberta Bunton, his surviving spouse, individually and on behalf of her son Charles Edward Bunton, III, submitted a claim to the Office of Servicemembers' Group Life Insurance seeking death benefits payable under SGLI. Id. ¶¶ 16-17; Pls.' Resp. to Def.'s Mot. For Summ. J. ("Pls.' Resp."), Pls.' Statement of the Undisputed Material Facts ("Pls.' Undisputed Facts") at 4. Prudential conducted an investigation of this claim and informed Mrs. Bunton of its decision to deny the claim on January 29, 1999, because "Charles E. Bunton, Jr. was not covered under the SGLI program at the time of his death due to his AWOL status for more than thirty-one (31) consecutive days" and cited 38 U.S.C. § 1968(a)(1)(B) in support. Def.'s Facts ¶ 18; Pls.' Undisputed Facts at 5. This letter from Prudential highlights the primary dispute relevant to this motion, to wit, whether Sgt. Bunton was ever returned to "active duty with pay" status during his confinement while awaiting trial.
The failure of Plaintiffs' submissions to comply with the format required by Local Rule 56.1(b)(1) and (f)(1) (requiring numbered paragraphs containing a single statement of fact with appropriate citation to supporting evidence) makes it extremely difficult to discern what specific factual assertions by Defendant that Plaintiffs contest and to identify specific statements of fact posited by Plaintiffs in opposition to the motion for summary judgment. In addition, Defendant moves to strike those facts lacking proper citation to supporting evidence or citing evidence which is not authenticated pursuant to the Federal Rules of Evidence. We cannot consider on this motion facts which are improperly supported or evidence that would be inadmissible at trial. See Minor v. Ivy Tech State Coll., 174 F.3d 855, 856 (7th Cir. 1999); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); Collier v. Budd Co., 66 F.3d 886, 892 n. 8 (7th Cir. 1995). While we DENY Defendant's motion to strike Plaintiffs' factual assertions, we will only consider Plaintiffs' properly supported and admissible evidence to the extent that we note herein.
Plaintiffs contend that there is enough evidence to create a genuine issue of material fact about this matter. Plaintiffs first cite payroll records authenticated by Eldon Griner ("Griner"), Chief, Service and Support Division of the Defense Finance and Accounting Service ("DFAS"), a governmental entity that provides finance and accounting for the Army and other military departments. Griner Aff., Ex., Payroll Records of Sgt. Bunton ("Sgt. Bunton's payroll records"). Plaintiffs assert that the affidavit and Payroll records indicate that Sgt. Bunton continuously paid premiums to Prudential for the SGLI coverage throughout 1996 and 1997. Pls.' Resp., Pls.' Statement of the Genuinely Disputed Material Facts ("Pls.' Disputed Facts") at 10 (citing Sgt. Bunton's payroll records at 2-20).
Our review of these records establishes that while the payroll records covering the period from January 1, 1996, through September 30, 1996, show a monthly payroll deduction of $18.00 for SGLI benefits, the records for October 1, 1996, through October 31, 1997, show no such deduction. Compare Sgt. Bunton's payroll records at 2-18, with id. at 20-44. Moreover, the records from October 1996, until October 1997, indicate that Sgt. Bunton received no pay at all during this period. See id. at 18-24 (listing year to date wages for 1996 as $11,887.68 and unchanged from September 30, 1996, to the end of the year); accord id. at 24; id. at 26-44 (listing year to date wages for 1997 as $0).
Prudential asserts that these records prove that Sgt. Bunton was not paid and that no payroll deduction was made for SGLI premiums between October 1996 and October 1997, citing the affidavit of Jeffrey Pierce ("Pierce"), a Dependency Claims Examiner for DFAS. Pierce is responsible for processing the pay accounts of deceased soldiers, is knowledgeable about premium deductions for SGLI benefits and the pay records of members of the Army, and has reviewed and is familiar with the payroll records of Sgt. Bunton attached to the Griner Affidavit. Pierce Aff. ¶¶ 3-4. He testifies that the records from September of 1996 through October of 1997 indicate that Sgt. Bunton was in a non-pay status and that no life insurance premiums for SGLI benefits were made by, or on behalf of Sgt. Bunton after he had been AWOL for thirty-one days. Id. ¶ 5. These records are consistent with Pierce's testimony, indicating that no pay was received or deductions for SGLI premiums made from October of 1996 through the date of Sgt. Bunton's death in October of 1997. While the records for September 1996 show a life insurance premium deduction of $18.00, Pierce explains that "such deduction was made for benefits paid for the first half of September 1996." Id. at 2 n. 1.
Plaintiffs also assert that Sgt. Bunton's payroll records establish that "prior to November 5, 1997, Sgt. Bunton was restored to active duty, and was retroactively paid his normal `base pay' and allowances . . . [and] [a]ccording to these same records, the automatic deduction for Sgt. Bunton's SGLI premiums was also paid retroactive for a period dating back before his death." Pls.' Disputed Facts at 10 (citing Sgt. Bunton's payroll records at 48). A careful review of the records from November and December of 1997 show that after his death, Sgt. Bunton was given credit for $275.80 for clothing in November and $5442.33 in December, itemized as follows: $4044.84 (base pay); $1157.36 ("BAQ"); $17.50 (advance debt); $222.63 ("Status DET"). Sgt. Bunton's payroll records at 46-50. In addition, the November 1997 payroll record indicates a deduction of $34.00 and the December 1997 payroll record indicates a deduction of $17.00 for Sgt. Bunton's SGLI premiums for those months. Sgt. Bunton's payroll records at 46, 48.
Pierce's explanatory testimony again contradicts Plaintiffs' characterization of the payroll records. According to Pierce, when a soldier dies or "separates" from the Army, the DFAS computer system that calculates the "separation pay" must show the soldier in an "active" status. Pierce Aff. ¶ 10. Thus, when a soldier who is on deserter status (such as Sgt. Bunton) dies, the DFAS computer must change his status from deserter, to active, to deceased, which process takes one to two days to effect. Id. ¶ 11. Pierce testifies that although the payroll records show Sgt. Bunton being credited with such entitlements during November and December, "the computer generated these entitlements as a result of the one to two day lapse in time when Sgt. Bunton was being changed to a deceased status." Pierce Aff. ¶ 12. Pierce also testifies, and our review of the records confirms, that adjustments were made totaling $275.80 for November and $5,442.33 for December such that no check was issued for either month. Pierce Aff. ¶ 13; Sgt. Bunton's payroll records at 46, 48.
Pierce further testifies that the January 1998 pay record reflects "Sgt. Bunton's appropriate separation pay," consisting of unpaid pay and allowances in the amount of $313.48 (including a tax refund, a clothing allowance and lump sum leave pay that accrued prior to his AWOL status), offset by "the inappropriate entitlements [discussed above]." Pierce Aff. ¶ 15; Sgt. Bunton's payroll records at 50. With respect to the SGLI premium deductions of November and December 1997, Pierce testifies that these deductions were automatically and erroneously made by the computer. Pierce Aff. ¶ 14. Pierce directs our attention to the January 1998 payroll record which corrects the November 1997 SGLI premium deduction. Pierce Aff. ¶ 16; Sgt. Bunton's payroll records at 50. Defendant acknowledges that no such correction exists for the December 1997 SGLI premium deduction, but Pierce testifies that this "was an oversight and should have also been later corrected." Pierce Aff. at 3 n. 2.
The parties do not dispute that Sgt. Bunton's survivors received his final separation pay, totaling $3764.14. Sgt. Bunton's payroll records at 52. Plaintiffs point to this payment as additional evidence that Sgt. Bunton had been restored to active with pay status prior to his death, asking, "if [the payment received in January 1998] was not intended as retroactive base pay . . . then what was the payment in January intended to satisfy?" Pls.' Sur-Reply at 4. The pay voucher dated January 21, 1998, indicates that it was to comprise "final pay and allowances due beneficiary. Unpaid pay and [allowances] ($313.48). 180 days BAQ ($2815.20) and VHA ($635.46) per Public Law 99-227," totaling $3764.14. Sgt. Bunton's payroll records at 52. Public Law 99-227 requires that the Secretary of Defense pay the dependants of a deceased member of the military for unpaid pay and housing allowances due to the benefiary. Id.; Def.'s Resp. to Pls.' Sur-Reply and Reply to Additional Statement of Facts ("Def.'s Resp. to Sur-Reply) at 3.
In addition to the pay issues contested on the basis of the payroll records, Plaintiffs cite the fact that the Report of Casualty created with respect to Sgt. Bunton's death indicated that his final designation was "active:confinement." Pls.' Undisputed Facts at 4 (citing Ex. 1, Report of Casualty). While Prudential initially objected to this assertion as lacking any citation to supporting evidence, it nonetheless acknowledged and responded to this factual assertion. Def.'s Reply to Pls.' Resp. to Statement of Material Facts and Mot. to Strike Additional Alleged Material Facts ("Def.'s Reply to Pls.' Facts") at 4; Def.'s Statement of Additional Material Facts on Reply ("Def.'s Additional Facts") ¶ 21. Pierce in his affidavit avers that while the Report of Casualty listed Sgt. Bunton's status as "active:confinement" at the time of his death, "this does not mean that he was returned to active duty with pay before he died. Instead this simply reflects an administrative designation." Pierce Aff. ¶ 9; Pierce Aff., Ex. A. According to Pierce, it was necessary for the DFAS computer to assign Sgt. Bunton this designation during the process of calculating his separation pay discussed above. See id. ¶¶ 10-11.
Finally, Plaintiffs point to a January 29, 1999 letter from one Rose Silva, a Claim Approver for the Office of Servicemembers' Group Life Insurance, to Plaintiffs' counsel wherein she allegedly informed Plaintiffs that had Sgt. Bunton been acquitted during his impending court martial trial "all pay and allowances would have been restored, including SGLI." Pls.' Disputed Facts at 11 (citing Exhibit 3 to Plaintiffs Designation of Materials ("Silva Letter")). Plaintiffs contend that since Sgt. Bunton was entitled to be presumed innocent until proven guilty and died before he had the opportunity to prove his innocence, we must assume that he would have been acquitted at the court martial trial and that his benefits would have been restored. Pls.' Disputed Facts at 12.
In addition to Pierce's affidavit, Prudential relies upon the affidavit of Homer Henderson ("Henderson"), a Military Personnel Management Specialist for the Army, Casualty Operations Division (which position makes Henderson responsible for military personnel matters, responsible for overseeing the retention of documents pertaining to claims and knowledgeable about SGLI benefits and the claims review process of SGLI death benefits), to establish that Sgt. Bunton was not returned to active duty with pay status prior to his death. Henderson Aff. ¶¶ 2-4. Consistent with these duties,
Henderson compiled an "Information Paper" about the investigation into Sgt. Bunton's SGLI benefits, which was created at or near the time of those events by, or from information transmitted by, a person with knowledge of those events. Henderson Aff. ¶¶ 5-7. Citing this Information Paper, Henderson informs the court that the Army never returned Sgt. Bunton to active duty with pay after he went AWOL in August of 1996 until the time of his death. Henderson Aff. ¶¶ 3, 8-12, 17. The Information Paper cites that Sgt. Bunton was in a desertion status from August 14, 1996, until he was returned to military control on June 6, 1997, and "was not in a duty or pay status" during that time. Id., Ex. A, Information Paper prepared by Homer Henderson, November 11, 1997 ("Information Paper) ¶ 2(d). Henderson further testifies that Sgt. Bunton's normal term of service expired on May 5, 1997 at which time Sgt. Bunton was not on active duty with pay. Henderson Aff. ¶¶ 13-14. Henderson states that Sgt. Bunton's status changed at this time from DFR (dropped from roll) to ETS (expired term of service) (id. ¶ 15) and that no life insurance premiums for SGLI benefits were paid by or on behalf of Sgt. Bunton after September 1996 (at which time Sgt. Bunton had been AWOL for thirty-one consecutive days). Id. ¶ 16.
Plaintiffs do not contest Henderson's testimony as such, indeed, for the most part his affidavit goes ignored; rather, they cite the payroll records and evidence discussed above in an apparent effort to contradict Henderson's testimony. Plaintiffs do, however, challenge Pierce's affidavit on the basis that it consists of "naked assertions of fact which are not verifiable." Pls.' Sur-Reply at 1. In effect, Plaintiffs request that we somehow examine the data contained in the payroll records and other documentation created by DFAS and the Army without the benefit of the testimony interpreting this data for us, beyond Plaintiffs' counsel's conclusory assertions. Plaintiffs do not challenge Pierce's knowledge of or familiarity with the compilation procedures for pay records and premium deductions as an outgrowth of his position as a Dependency Claims Examiner for DFAS. We see no reason to ignore his experience, to disregard his explanation of the events that led to these records being compiled, or to doubt his interpretation of the data provided to us by the Plaintiffs and decline to do so.
Plaintiffs' Motion for Enlargement of Time To File Additional Materials
Before addressing the merits of the case, we dispose of Plaintiffs' motion seeking leave to file additional materials supporting their opposition to Prudential's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(f). Counsel for Plaintiffs claim to have recently subpoenaed personnel records pertaining to Sgt. Bunton from the Army and attached copies of recently obtained, unauthenticated documents alleged to support their position, and request more time to obtain authentication and "perhaps, some explanation of the facts contained in the records." Pls.' V. Mot. and Aff. for Enlargement of Time to File Additional Materials Supporting Pls.' Resp. to Def.'s Mot. for Summ. J. ("Pls.' Supplemental Mot.") at 3, 4. Prudential counters that it has received no copy of any such subpoena and that the only subpoena that it knows of that has been issued by Plaintiffs is the one which produced Sgt. Bunton's payroll records already tendered to the court, and that the unauthenticated records attached to Plaintiffs' Supplemental Motion are in any event not material to the issues before the court, relating to whether Sgt. Bunton was ever restored to active duty with pay. Def.'s Objection to Pls.' Supplemental Mot. at 3-4. Defendant also points out that Plaintiffs' supplemental motion is untimely under Federal Rule of Civil Procedure 56(f), which provision contemplates filing such a motion for enlargement of time in lieu of responding to a Rule 56 motion, and essentially constitutes another bite at the apple for Plaintiffs. Id. at 2; Fed.R.Civ.P. 56(f).
Counsel for Prudential asserts that "when Plaintiffs' counsel was asked about the subpoena, she stated that the only subpoena that has been issued is the subpoena to DFAS that was issued in March." Def.'s Objection to Pls.' Supplemental Mot. at 3-4.
"`A party seeking the protection of Rule 56(f) must make a good faith showing that it cannot respond to the movant's affidavits. The rule requires the filing of an affidavit stating the reasons for a claimant's inability to submit the necessary material to the court.'" Kalis v. Colgate-Palmolive Co., ___ F.3d ___, No. 99-3343, 2000 WL 1645808, at *7 n. 5 (7th Cir. Nov. 3, 2000) (quoting United States v. All Assets and Equip. of W. Side Bldg. Corp., 58 F.3d 1181, 1190 (7th Cir. 1995) (citations and footnote omitted)). Although "`[a] court may disregard a failure to formally comply with Rule 56(f),' the opposing party's request for a continuance must `clearly set out the justification for the continuance.'" Id. (quoting Pfeil v. Rogers, 757 F.2d 850, 856 (7th Cir. 1985). "`When a party fails to secure discoverable evidence due to his own lack of diligence,' the necessary justification is lacking, and `it is not an abuse of discretion for the trial court to refuse to grant a continuance to obtain such information.'" Id. (quoting Pfeil, 757 F.2d at 857). Thus, an application for a Rule 56(f) extension must be filed in an expeditious manner and supported by an affidavit and may properly be denied if counsel's inability to complete discovery during the appropriate period of time was due to counsel's own lack of diligence. Id. (denying Rule 56(f) extension where motion was not supported by affidavit explaining why the discovery was not conducted during the appropriate period, and was not filed until three months after motion for summary judgment was filed and the briefing schedule set and one month after response to motion was due); Pfeil, 757 F.2d at 857 (holding that a district court properly exercised its discretion to deny a Rule 56(f) motion when a party fails to secure discoverable evidence due to its own lack of diligence).
Reviewed in light of these standards, we find that Plaintiffs' motion lacks merit. Although the Rule 56(f) motion includes an affirmation by Plaintiffs' counsel that the statements contained therein are true and correct, this affirmation is not sufficient to warrant an extension. Plaintiffs' motion does not indicate why counsel's subpoena was only recently served upon the Army (assuming such subpoena exists) and the fact that this motion was filed three months to the day after Plaintiffs' response to Defendant's motion leads us to conclude that this delay was due to Plaintiffs' counsel's own lack of diligence. We therefore DENY Plaintiffs' motion for time to file additional materials and will proceed with our analysis considering the evidence now properly before us.
This evidence does not include the unauthenticated records included with Plaintiffs' motion for additional time, which evidence as previously noted was not timely submitted to the court and does not comply with admissibility requirements in the rules of evidence.
Discussion
Finally, to the merits: this case involves a rather straight-forward application of statutory language. Section 1968(a)(1)(B) states that SGLI coverage of a member of the armed forces "cease[s] . . . at the end of the thirty-first day of continuous period of . . . [AWOL]." Id. This language mirrors the Plan issued by Prudential which states that coverage of such individual is "terminate[d]" before the thirty-second day of a continuous period of being AWOL and that the coverage is "automatically revived as of the date the member is restored to duty with pay." Plan at 17. There is no dispute that Bunton was AWOL from August of 1996 until March 24, 1997, a period exceeding six months, and again from March 26, 1997, until June 6, 1997, a period of seventy-two days. Under the plain language of both Section 1968 and the Plan, Sgt. Bunton's entitlement to SGLI benefits "cease[d]" or "terminate[d]" at the earliest sometime in September of 1996 and at the latest on April 26, 1997, thirty-one days after going AWOL for the second time. The payroll records submitted by Plaintiffs plainly show that the Army considered such entitlement to have ceased as of the earlier date, as no SGLI premiums were deducted from Sgt. Bunton after this date (at least, not while he was still alive).The issue then distills to whether the provisions in Section 1968 and the Plan for the restoration of those benefits were ever triggered, thereby automatically bringing Sgt. Bunton once again under SGLI's coverage. Both SGLI and the Plan state that once a member's SGLI benefits have ceased or been terminated, they are "revived as of the date the member is restored to active duty with pay." 38 U.S.C. § 1968(a)(1)(B); accord Plan at 17. Thus, so far as we can tell, the only way Plaintiffs would qualify for life insurance benefits under SGLI is if Sgt. Bunton had been restored to active duty with pay at some point after his entitlement ceased or was terminated under the terms of SGLI and the Plan. E.g. Lee v. United States, 977 F.2d 551, 553 (11th Cir. 1992). We find no evidence that such restoration occurred.
Although Plaintiffs contend to the contrary, there is simply no evidence that the Army ever returned Sgt. Bunton to active duty with pay after his entitlement to SGLI benefits ceased. The payroll records submitted by Plaintiffs show conclusively that the Army did not pay Sgt. Bunton and he did not pay any SGLI premiums thirty-one days after the Army classified him as being AWOL in August of 1996. While the September 1996 payroll record indicates that a deduction was made for Sgt. Bunton's SGLI premium, the testimony of Jeffrey Pierce, a Dependency Claims Examiner for DFAS, responsible for processing deceased soldiers' pay accounts and knowledgeable about premium deductions for SGLI benefits, establishes that such deduction was made for benefits paid for the first half of September 1996, prior to the thirty-one day time period following Sgt. Bunton's having gone AWOL. These records reflect the requirements of Section 1968 that entitlement to benefits ceases after thirty-one days of continuous AWOL status.
The only evidence Plaintiffs muster to the contrary are the payroll records from November 1997 through January 1998 (covering a time period after Sgt. Bunton had died) and several Army documents generated during the investigation into his death that listed Sgt. Bunton as "active." See Sgt. Bunton's payroll records at 46-52; Report of Casualty (listing Sgt. Bunton's status as "active:confinement"); Def.'s Resp. to Sur-Reply at 3 (acknowledging that Sgt. Bunton had been listed as "active:confinement"). However, this evidence does not suffice in terms of supporting Plaintiffs' burden on this motion.
Defendant's witness, Pierce, provides the only testimony in the record actually explaining these records. We find that in the absence of any testimony contradicting Pierce's explanation, Plaintiffs' resort to conjecture to dispute it falls short of the mark. According to Pierce, the DFAS computer is programmed to list an Armed Service member as "active" before it can record that he is deceased and can calculate the "separation pay" that the member is statutorily required to receive after separating from the Armed Forces. Where the member is not presently listed as "active," the DFAS computer goes through a two-step process: first, it must alter that member's status to reflect that he is active and then, secondly, to indicate that he is deceased, a process that according to Pierce takes one to two days. Application of this process caused to be created the November and December 1997 payroll records (indicating that Sgt. Bunton was owed certain monies and deducting for SGLI premiums) and generated the Report of Casualty listing Sgt. Bunton as "active:confinement." Pierce further testified that the necessary adjustments were made to reflect that Sgt. Bunton was not entitled to these funds, thus causing no paychecks to be issued for these periods. An independent examination of these records confirms Pierce's account that no paychecks were issued for these periods. Pierce also testified that the January 1998 payroll record contains an adjustment indicating that the November 1997 SGLI deduction was corrected (also easily verified by visual examination of the payroll record) and that, though it was intended that the adjustments be made to correct for the December 1997 SGLI premium deduction, an oversight prevented that from happening immediately but it should have been corrected later on.
Moreover, Pierce also explained that the monies received by Sgt. Bunton's survivors in January of 1998 reflected his "separation pay" and allowances and housing allowances which the Army was required by law to pay. A further examination of Sgt. Bunton's payroll records (at 52) verifies that he received $313.48 for unpaid pay and allowances, $2815.20 for 180 days BAQ (basic allowance for quarters), and $635.46 for VHA (variable housing allowance). Despite Plaintiffs' conjectures to the contrary, this sum was not retroactive pay, the payment of which did not somehow convert Sgt. Bunton's status to "active with pay."
Public Law 99-227, codified at 37 U.S.C. § 403(1)(2), (3) authorizes the payment of 180 days worth of "basic allowance for quarters (BAQ)" to dependents of a member who dies while on active duty and whose dependents are not currently living in military housing. 37 U.S. 403(1)(2), (3); cf. Poinder v. United States, 117 F.3d 549 (Fed. Cir. 1997).
The only contradictory evidence to Prudential's version of events is the unreturned December 1997 SGLI premium deduction, which Pierce explained had resulted from an error or oversight on his part. In the face of the overwhelming evidence that shows Sgt. Bunton was not being paid and was not paying SGLI premiums for over a year after he first went AWOL, no reasonable jury could find that Sgt. Bunton was ever returned to "active duty with pay" based on this single, unreturned SGLI premium deduction made two months after Sgt. Bunton had died.
At various points in the Plaintiffs' briefing of this motion, they have alternatively referred to Sgt. Bunton's "return to military control" and "return to active status" as sufficient to restore his SGLI entitlement under operation of 38 U.S.C. § 1968(a)(1)(B). Neither of these classifications is relevant to whether Sgt. Bunton's entitlement was restored, and neither is the designation "active duty with pay," as required by statute. Plaintiffs wish us to import into the statute a condition that its terms are only in effect while the covered member of the armed services remains AWOL (or in a status that lead to the "[cessation]" of his SGLI entitlement in the first place). However, the statute is unambiguously clear that no such condition applies; it simply operates to cease a member's entitlement to benefits once he or she has been AWOL for thirty-one continuous days until such time as the member is restored to active duty with pay status.
Similarly, the refusal to apply the restoration provision to Sgt. Bunton, a member of the Army who went AWOL for a total period of over eight months and was being held in custody for a mental examination prior to being subject to court martial, is not contrary to SGLI's purpose. Congress enacted SGLI to ensure that members of the Armed Forces in combat would be able to obtain the life insurance benefits that insurance companies were otherwise refusing to provide. The provisions of Section 1968(a)(1)(B) comport with this intent by eliminating the entitlement for those who had been removed from active duty with pay — either voluntarily (by going AWOL) or involuntarily (being jailed by either civil or military authorities) — until such status is restored.
We thus conclude that Sgt. Bunton was never returned to active duty with pay. Under the provisions of 38 U.S.C. § 1968(a)(1)(B) and the Plan, his entitlement to SGLI benefits ceased as of September 1996 and he was not insured by SGLI at the time of his death. Plaintiffs' claim for SGLI benefits is unfounded and Prudential's motion for summary judgment must be granted.
Although the claim rejection letter appears to rely on different statutory and regulatory provisions in addition to Section 1968(a)(1)(B), this Section by itself requires a finding that Sgt. Bunton was not covered by SGLI at the time of his death. Contrary to Plaintiffs' assertions, the application of Section 1968(a)(1)(B) to Sgt. Bunton does not contradict the provisions relied upon by Plaintiffs nor does it serve to deprive Plaintiffs or Sgt. Bunton of constitutional rights.
Conclusion
For the reasons explicated above, Defendant's motion to strike and Plaintiffs' motion for an enlargement of time to file additional materials are both hereby DENIED and Defendant's motion for summary judgment is hereby GRANTED.
It is so ORDERED this day of November 2000.
JUDGMENT
Pursuant to the Court's entry of this date, Summary Judgment is granted in favor of the Defendant, Prudential Insurance Company of America ("Prudential"). Judgment is hereby entered for the Defendant, Prudential and against the Plaintiffs, Roberta C. Bunton and Charles Edward Bunton, III, each party to bear its own costs.It is so ORDERED this day of November 2000.