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holding that decedent had not effectuated a change of beneficiary under the Dogariu test for substantial compliance
Summary of this case from Voss v. VossOpinion
CASE NO.: 01-72051
August 19, 2002
OPINION AND ORDER (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant's motion for summary judgment (Docket Entry #10) and Plaintiff's motion for summary judgment (Docket Entry #12). The Court heard oral argument on these motions on July 17, 2002. Upon consideration of the motions, the submissions of the parties, and the applicable law, the Court will GRANT Defendant's motion, and DENY Plaintiff's motion.
I. BACKGROUND
Great Lakes Color Printing, Inc. (hereinafter "Great Lakes") purchased a life insurance policy insuring the life of Jihad Moukalled (hereinafter "Decedent") from Defendant, Minnesota Mutual Life Insurance Company, in April of 1997, for $450,000 (Policy No. 2-101-045, "the policy"). Decedent was the President of Great Lakes. The policy, as issued, listed Great Lakes as the beneficiary. (Policy, Exh. 1 to Def.'s MSJ, at Appl. page 2.)
As to changing the beneficiary, the policy provides:
Can you change the beneficiary? Yes. If you have reserved the right to change the beneficiary, you can file a written request with us to change the beneficiary. . . . Your written request will not be effective until it is recorded in our home office records. After it has been so recorded, it will take effect as of the date you signed the request. However, if the insured dies before the request has been so recorded, the request will not be effective as to those death proceeds we have paid before your request was recorded in our home office records.
(Policy, at 5.) The policy defines "written request" as "[a] request in writing signed by you. We also may require that your policy be sent in with your written request." (Id. at 3.) The policy does not specify that any particular form must be used to change one's beneficiary designation. Prior to November of 2000, Decedent did not file any written requests to change the beneficiary of the policy.
In the early morning hours of November 21, 2000, Decedent visited his sister, Lina Moukalled (Plaintiff) and her husband Mohamed Khadr, at their home. While there, he allegedly begged their forgiveness for running up a sizable debt in their names (by falsifying credit applications in their names, forging their signatures to the applications, receiving credit cards in their names, and then forging their signatures to credit card purchases and making cash advances). Decedent presented them with a sealed manila envelope, and told them to take the envelope to Decedent's personal attorney, Marc Fishman. Decedent left their home, and called them on his cellular telephone, again to beg forgiveness.
At oral argument, counsel for Plaintiff conceded that Decedent's sister and her husband would not be liable for any credit card debts created by Decedent's falsifying credit card applications in their names, or using credit cards based upon forged signatures.
Later that morning, Decedent killed his wife and children, and then shot himself.
The policy's suicide provision provides that death by suicide is excluded if it occurs within the first two years of the policy. Decedent's policy was taken out in April of 1997; his suicide was in November of 2000 — about three and a half years later. Thus, his suicide does not preclude payment of the policy proceeds.
A few days after Decedent's death, Plaintiff and her husband met with Mr. Fishman at his office. At that meeting, the manila envelope was opened, and its contents were reviewed. Among other insurance policies, the policy at issue in this case was found inside the envelope. Plaintiff and her husband both testified at their depositions that on Decedent's policy with Defendant (i.e., the policy at issue in this case), there was a "post-it" note attached inside the cover of the policy itself, on the first page containing policy information (such as the policy number, etc.). (Dep. of Lina Moukalled, Exh. A to Pl.'s Reply, page 66-67; Dep. of Mohamed Khadr, Exh. B to Pl.'s Reply, at 29-30.) Mr. Fishman, at his deposition, testified that he could not recall the contents of any of the notes, but there were some "sticky notes on some of the policies." (Dep. of Marc Fishman, Exh. C to Pl.'s Reply, at 29-30.) The "post-it" has handwriting and a signature on it, and reads: "Requested change of ownership to Jihad Moukalled. has been paying premium with personal checks. Requested change of beneficiary to wife and contingent beneficiary to sister Lina Moukalled. [/s/] Jihad Moukalled" (Policy, Exh. 1 to Def.'s MSJ, at 1.) Also enclosed in the envelope was a personal check from Decedent to Defendant for a premium payment; Defendant's address, and the policy number, were written on the check. (Exh. F to Pl.'s Resp./Cross-MSJ.) The check was dated October 18, 2000. (Id.)
Apparently there was also a spreadsheet, created by Decedent, that listed the fraudulent credit card accounts with the amounts owed on the cards of Plaintiff, her husband, and their father. There were also other records/documents in the envelope, including a letter addressed to Mr. Fishman, regarding the credit card debts.
In January of 2001, Plaintiff, through her counsel in the instant case, sent a copy of the "post-it" note attached to the first page of the policy, with a letter to Defendant, asking it to honor the purported change of beneficiary, i.e., substitute Lina Moukalled as the beneficiary. (Exh. 4 to Def.'s MSJ.) In February of 2001, Defendant sent Plaintiff's counsel a letter indicating that Defendant would not honor the handwritten note "at this time because it does not indicate a policy number, date of the request, and to whom the request was made." (Exh. 5 to Def.'s MSJ.) About a week later, Plaintiff's counsel sent Defendant a letter indicating that the note was attached to the policy itself, and offering to submit affidavits regarding Decedent's intent to change his beneficiary with Defendant. (Exh. 4 to Def.'s MSJ, at 3.) Defendant sent a response letter in March of 2001, reiterating Defendant's refusal to honor the handwritten note. (Exh. 5 to Def's MSJ, at 2.)
On April 18, 2001, Defendant paid the life insurance proceeds plus interest ($457,780.56) to Old Kent Bank, as secured creditor of Great Lakes. (Exh. 6 to Def.'s MSJ.)
This action ensued. On April 20, 2001, Plaintiff filed her original complaint in Oakland County Circuit Court. Defendant timely removed the action to this Court on the basis of diversity jurisdiction. The complaint alleges two causes of action: Count I — Breach of Contract — Third Party Beneficiary; and Count II — Michigan Consumer Protection Act. Defendant filed its motion for summary judgment on March 19, 2002; Plaintiff filed her cross-motion for summary judgment on April 8, 2002. These two motions are currently before the Court.
II. ANALYSIS
A. Summary Judgment Standard
This Court grants summary judgment when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the party opposing the motion "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). However, "the mere existence of a scintilla of evidence" in support of the non-moving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The filing of cross motions in a jury case (such as the case at bar) does not require the Court to resolve the case at the summary judgment stage. As explained in B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587 (6th Cir. 2001):
It was not necessary for the district court to resolve the case at summary judgment solely because the parties filed cross-motions for summary judgment and presented a Joint Statement of Undisputed Material Facts. When parties file crossmotions for summary judgment, "the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist." 1OA Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998). A trial court may conclude, when reviewing the undisputed material facts agreed upon by the parties and drawing all inferences, in turn, for the non-moving party, that a genuine issue exists as to those material facts, in which case the court is not permitted to resolve the matter, but rather, must allow the case to proceed to trial. See ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42, 45 n. 3 (4th Cir. 1983). The district court in this case could have ruled, as it did, that one party sufficiently demonstrated that no genuine issue of material fact existed. The court also could have ruled, however, that neither party met its burden of demonstrating that no genuine issue of material fact existed when all inferences were drawn, in turn, for the non-moving party, such that it would be proper for the case to go to trial. Therefore, summary judgment was not necessarily appropriate solely because the parties filed cross-motions for summary judgment.
Id. at 593 (footnotes omitted).
B. Breach of Contract Claim
When determining whether a party is entitled to benefits under an insurance policy, Michigan courts look to the language of the policy, and interpret the terms of the policy according to "well-established principles of contract construction." Singer v. American State Ins., 245 Mich. App. 370, 374 (Mich.Ct.App. 2001). Any ambiguity in the terms of an insurance policy is construed against the insurer, as drafter of the contract, and in favor of the insured. Id.; see also Bianchi v. Automobile Club of Mich., 437 Mich. 65, 70 (Mich. 1991).
As to a common law breach of contract claim, Michigan courts apply the "substantial compliance" test. An early interpretation of the substantial compliance test was announced by the Michigan Supreme Court in 1914:
Where the [insured] has done all that he is required to do, and only formal ministerial acts on the part of the [insurer] remain to be done in order to complete the change, and the [insured] dies before performance thereof, a court of equity will protect the rights of the intended beneficiary.
See Supreme Court I.O.F. v. Frise, 183 Mich. 186, 192 (Mich. 1914). The Michigan Supreme Court later made clear, though, that an unexecuted intent to change beneficiaries in insufficient to effect the change. Reed v. Metropolitan Lfe Ins. Co., 269 Mich. 26, 31 (Mich. 1934); see also Cooper v. United States, 340 F.2d 845, 848 (6th Cir. 1965) ("[The] substantial compliance doctrine . . . is not applicable [in] the present case [because of the] insured's complete failure to execute any written statement attempting to transfer [the policy proceeds].") A later statement by the Michigan Supreme Court of the substantial compliance test appeared in Dogariu v. Dogariu, 306 Mich. 392, 398 (Mich. 1943):
[W]here the contract of insurance outlines the manner of method by which beneficiaries may be designated or changed, the steps or formalities so stipulated must be at least substantially complied with, it being quite generally conceded that in such a case a designation can be made effective only by following the policy provisions and by conforming to the manner or mode specified in the contract. . . . The provisions of a life policy as to the manner of changing the beneficiary must be complied with, at least, substantially so. . . .
Id. at 398 (internal citations omitted). In Dogariu, supra, the insured, shortly before his death, caused a will to be drawn up, attempting to direct the disposition of his life insurance proceeds. The court held that the will did not constitute compliance with the provisions of the policy requiring filing a written change with the company, accompanied by the policy at issue for its endorsement. Thus, the change was ineffective, not because the court could not reasonably discover his intent, but rather, because his actions were insufficient to effect the change.
The cases following the enunciation of the substantial compliance test turn on one of two issues: (1) determining the intent of the deceased, and (2) determining whether the intent was carried forth with sufficient action in terms of complying with the requirement(s) of the insurance policy, in order to effect the change. See Harris v. Metropolitan Life Ins. Co., 330 Mich. 24 (Mich. 1951) (insured executed a change of beneficiary, gave it to an attorney who delivered it to the insurer, but without sending the "certificate" as required by the policy's requirements; court held that insured "did all in his power to effect the change in the manner prescribed in the policy," and there was "substantial compliance" to change of beneficiary); Aetna Life Ins. Co., v. Owens, 318 Mich. 129 (Mich. 1947) (insured signed change of beneficiary card, had it witnessed, and had it sent to the insurance company, which recorded it prior to his death; court concluded that the change of beneficiary was effectuated in accordance with policy requirements); Aetna Life Ins. Co. v. Mallory, 291 Mich. 701 (Mich. 1939) (holding that because there was no clear intention on the part of the deceased to deliver the will or to have it delivered to the insurance company before he died, he had not sufficiently complied with the terms of the policy, and the purported change of beneficiary was not effective).
In Aetna Life Ins. Co. v. Parker, 130 F. Supp. 97 (E.D. Mich. 1955), on the original beneficiary form where the typewritten name of the insured's wife appeared as beneficiary, the insured, in a green color pencil, printed the name of his sister, and signed the change, without obliterating the name of his wife, and without filing it with his insurance company. The court noted that "his wife [who was contesting the change] was aware that he had executed the purported change of beneficiary; that he had executed the purposed change before he left home, and hence, about a year before his death." Id. at 98.
The court undertook to analyze the policy's requirements (written request, filed with the insurer, but need not be filed before the death, so long as filed before the proceeds paid out) and then held that the change of beneficiary (or rather, the addition of a second beneficiary to share with the first) was effectuated. The court specifically found:
No special form of request for change of beneficiary is required to be used. Endorsement of the change on the policy by the insurer was not a prerequisite to effectuate a change. Neither was receipt of the request by the insurer prior to the death of the insured a requirement of the policy. Acknowledgment of the insured's signature on the request was not a condition. The only requirement of the policy in the instant case was that the change could be accomplished by `written request' filed any time. What constitutes such `written request' is not spelled out, but rather the term is shrouded with ambiguity by reason of the lack of other formal requirements as were present in the cases above cited. However, the Court is of the opinion that the term `written request' as set forth in the policy means a manifestation in writing of the intention of the insured directed to the attention of the insurer. Since such request need not be filed before the death of the insured, it would seem that any writing by the insured which clearly manifests his intention to change the beneficiary would suffice, so long as there is compliance with the further requirement of filing the same. What amounts to a filing is, likewise, not clear. It does seem clear, however, that the purpose of such requirement was to bring to the attention of the insurer the intention of the insured with respect to a change of beneficiary either prior or subsequent to the insured's death in order that the proceeds be paid to the proper beneficiary. If this be so, then it seems to the Court that there has been a sufficient compliance with the terms of the policy. The writing on the face of the certificate is an expression of the desire of the insured directed to the attention of the insurer respecting the manner in which the proceeds of the policy should be paid to the beneficiaries named therein by the insured. As so placed, it was well calculated to come to the attention of the insurer, and, hence, to amount to a filing of the request. That it would not come to the insurer's attention until after the insured's death was expressly immaterial. That the manner adopted by the insured was somewhat unorthodox cannot be doubted, but nothing in the policy provisions precludes such unorthodox compliance therewith.
Id. at 100 (internal citations omitted). The court emphasized that there was "trustworthy evidence of the insured's desire as manifested on the face of the certificate." Id. at 101. The court further noted that "no possibility of fraud or forgery is present here in view of the wife's own testimony wherein she acknowledged the signature involved to be that of her husband, and said she was aware that he had so signed the instrument." Id. These last-noted assurances are not present in the instant case. The court in Parker found he had substantially, although not literally, complied with the policy's requirements.
In the Sixth Circuit decision, Aetna Life Ins. Co. v. Weatherford, No. 90-5585, 1991 WL 11611 (6th Cir., Feb. 5, 1991 )(unpublished), the insured participated in a group insurance plan through his employer, and had listed his first wife as the beneficiary. They divorced, and the insured remarried. He partially completed a change of beneficiary form for his life insurance policy by checking a box labeled "change in beneficiary designation," signing and dating it, but he failed to list any beneficiary whatsoever, did not have it witnessed as required by the policy, and did not mail or otherwise deliver the form to the insurance company (it was found in his briefcase, in a spare bedroom, after his death, but it was dated three years prior to this death). On a separate form (for other employee benefit plans, but completely inapplicable to the group life insurance) the insured had designated his wife as the "only" primary beneficiary. 1991 WL 11611 at * 1. However, that form was also uncompleted, and was found in his desk after his death. On a form to apply for supplemental group life insurance (through a different insurer than the original group life insurer), the insured had listed his new wife as his sole beneficiary; however, that form was not mailed until after the application period had expired, which was also after the insured's death.
In analyzing the conflicting claims for benefits (between the ex-wife and the new wife), the Sixth Circuit acknowledged without analysis that ERISA applied, and then stated that "the district court correctly concluded that. . . . Tennessee, Georgia, and federal common law all employ the "substantial compliance' test." Id. at *4. The court analyzed each of the three separate forms listed above, and in turn, found that each form's incompleteness and/or failure to reach the insurer was fatal to the new wife's claim for benefits. The court held that the insured had not done all he could do to effectuate the change of beneficiary for his original life insurance policy, and thus, he had not substantially complied with the policy requirements. The court awarded the life insurance proceeds to the first wife. Id. at *6.
In Life Ins. Co. of N. Amer. v. Leeson, ___ F. Supp.2d ___, 2002 WL 483563 (S.D. Ohio, Mar. 19, 2002), the insured participated in a group life insurance plan through his employer, and had originally listed his sister as beneficiary. Thereafter, he married, and allegedly expressed his intent to change the beneficiary to replace his sister's name with his wife's. Some weeks before his death, the insured filled out a change of beneficiary form, and left it with his wife to mail (with other items). She neglected to do so, and when he inquired about it and found out nothing had been mailed, he put the items (including the beneficiary form) in his lunchbox to take to work and mail. Less than two weeks later, the insured died in a car accident. The papers were found in his lunchbox following his death, and were subsequently mailed to the insurer.
The court recognized the applicability of ERISA, and applied, citing Weatherford, supra, the substantial compliance test under "the federal common law." The policy had required only that written notice be given to the employer or the insured, effective as of the date of the request, even if received after the insured's death, so long as the insurer received notice prior to paying out the proceeds. The only factual issue in the case was whether the insured's failure to mail the form vitiated the widow's argument that the insured had "substantially complied" with the policy requirements. The court held that it did. The court found that the insured's failure to mail the form was not a "sufficient positive action in furtherance of [his] intent" to change beneficiaries, and awarded the policy proceeds to the insured's sister. Id. at *7-8.
In the instant case, the insurance policy requires a request in writing to be recorded in the home office prior to the proceeds being paid out. Here the Defendant received Plaintiff's papers prior to paying out the proceeds to Great Lakes' creditor.
The Court rejects Defendant's argument that the fact that it has already paid out the proceeds is fatal to Plaintiff's claim. Because there is the availability of an interpleader action if the insurer has any question as to the propriety of the change of beneficiary, Defendant is not shielded from liability if it paid out the proceeds in the face of what might have been a change of beneficiary written request.
The Court finds the following undisputed facts to be dispositive. The instant case resolves around a single "post-it" note located on the first page of the instant insurance policy, that states, "requested," as to significant changes in the policy by the Defendant insurance company, to wit (1) a change in ownership, and (2) a change in beneficiary.
First, there is the request that the Defendant change the ownership of the policy from Great Lakes to Decedent. Significantly, Decedent was not the sole shareholder of the company — Great Lakes had two other shareholders — Mr. Gordon and Mr. Gaskill. (Dep. of Mohamed Khadr, Exh. B to Pl.'s Reply, at 32.) The policy contains Decedent's signature as President of Great Lakes. Nothing on the "post-it" indicates that he is writing as president of the company, or that he has been authorized by the company to make this significant change of beneficiary that would potentially diminish company assets.
Second, there is the request for a change in the beneficiary from Great Lakes, the owner and beneficiary of the policy, to the Decedent's wife, and thereafter the Plaintiff, Decedent's sister.
Both of these significant changes in the policy are now sought to be legitimized by Plaintiff based on a "post-it" note on the policy, which was not addressed to, or directed toward anyone, much less to the Defendant insurance company.
Further muddying Plaintiff's claim is the wording of the "post-it, " which is not addressed to anyone, and does not even direct the reader to make the change(s). The writing on the "post-it" reads, in its entirety:
Requested change of ownership to Jihad Moukalled. has been paying premium with personal checks. Requested change of beneficiary to wife and contingent beneficiary to sister Lina Moukalled. [/s/] Jihad Moukalled.
(Policy, Exh. ito Def.'s MSJ, at 1.) The wording of the "post-it" note, using the term ""requested," does not denote a present request to make the changes: ""Requested change of ownership. . . . Requested change of beneficiary." (Id., emphasis added.) "Requested," in its ordinary and plain meaning, is the past-tense form of the word "request." Thus, the "post-it" can be read as merely documenting that a prior request to make the changes had been made. However, nothing in the record evidences such an earlier request to the Defendant. Thus, the "post-it" does not indicate a present "request" to change the ownership or the beneficiary. The Court notes that Decedent was highly proficient in the English language, as evidenced by the full page letter he wrote to his attorney. (See Letter, Exh. E to Pl.'s Resp.)
Decedent was not the owner of the policy, and by the terms of the policy, only the owner could change the beneficiary. The policy states "If you have reserved the right to change the beneficiary, you can file a written request with us to change the beneficiary." (Policy, Exh. 1 to Def.'s MSJ, at 5, emphasis added.) The policy defines "you" as "[t]he owner of the policy, as shown in the application. . . ." (Id. at 3.) The owner, as shown on the application attached to the policy, is Great Lakes Color Printing, Inc. (Id. at 10.) In order to have the power to change the beneficiary, Decedent would have had to have been acting in his capacity as president of Great Lakes Color Printing, Inc., the owner of the policy. However, the "post-it" note does not in any way refer to Great Lakes Color Printing, Inc., or to Decedent as acting on behalf of the corporation. Indeed, it is signed by Jihad Moukalled as an individual, without any reference to the corporation. Thus, what was "requested" to an anonymous person or entity could not have been effectuated by Decedent as written, because the change of ownership was not effectuated, and the change of beneficiary was not effectuated.
The alleged request was not directed to Defendant, and there is no evidence that Decedent ever requested that it be directed to Defendant. There is no trustworthy evidence that Decedent intended that the alleged "request" be delivered to Defendant, nor is there any evidence that Decedent took the necessary steps to arrange for the "request" to be delivered to Defendant. Specifically, Plaintiff was directed to deliver the policy to Mr. Fishman. However, Mr. Fishman, to whom Decedent allegedly directed the envelope to be delivered, was not instructed to deliver the policy to the insurer. The policy requires that the written request be "file[d] . . . with us to change the beneficiary. Your written request will not be effective until it is recorded in our home office records." (Policy, at 5.) The Court cannot find that Decedent literally or substantially complied with the requirement that the request be filed with Defendant, and recorded in Defendant's home office records.
For these reasons, the Court finds that Defendant is entitled to summary judgment, based on the undisputed facts before the Court.
C. Michigan Consumer Protection Act ("MCPA") Claim
Neither party specifically addressed this claim; the motions deal exclusively with the breach of contract claim. However, this claim will be DISMISSED as a matter of law.
The MCPA claim is not viable as a matter of law for two reasons: (1) the insurance transaction was not a "consumer" transaction within the meaning of the MCPA; and (2) there is a genuine legal dispute as to whether Plaintiff is entitled to recover benefits under the policy.
First, the insurance transaction at issue occurred between two businesses — Defendant, and Great Lakes (as owner of the policy). Transactions between businesses which are not "primarily for personal, family, or household purposes" are not within the scope of MCPA. MICH. COMP. LAWS ANN. § 445.902(d); see also Robertson v. State Farm Fire Casualty Co., 890 F. Supp. 671, 679 (E.D. Mich. 1995) (opining that there is a limited number of factual situations wherein a corporation's purchase might be considered as primarily for personal, family, or household purposes). There is no proof, and no allegation, that Great Lakes' purchase of the life insurance policy insuring the life of Decedent, but naming the company as beneficiary, was "primarily for personal, family, or household purposes." Thus, under Robertson, the MCPA claim is not viable as a matter of law.
Second, in Hardy v. United of Omaha Life Ins. Co., 87 F. Supp.2d 766 (W.D. Mich. 1999) (Quist, J.), the plaintiff filed suit under two causes of action: breach of contract, and violation of the MCPA. The plaintiff was suing to recover under an accidental death benefits plan available through her husband's employer, as her husband had been killed in an automobile accident after leaving a work-related appointment. The court analyzed the plaintiffs breach of contract claim, and found in her favor. The court turned to her MCPA claim, and held:
[The plaintiff's] Michigan Consumer Protection Act ("MCPA") claim merely restates the claim in Count I for breach of contract resulting from the failure of [the defendant] to pay benefits under the policy. [Her] complaint fails to specify any "[u]nfair, unconscionable, or deceptive methods, acts or practices in the conduct of trade or commerce" as required under the MCPA, M.C.L. § 445.903(1). As a matter of law, the Court finds that the parties had a genuine legal dispute over the scope of coverage under the policy and that [the defendant's] failure to pay benefits under the policy does not violate the MCPA.
Id. at 771.
Likewise, in the instant case, there was a genuine legal dispute as to whether Defendant was liable to Plaintiff under the policy at issue. On the basis of Hardy, the Court finds that Defendant's failure to pay benefits under the policy, as a matter of law, does not constitute a violation of the MCPA.
Thus, the Court DISMISSES the MCPA claim.
III. ORDER
For the reasons stated above, the Court hereby GRANTS Defendant's motion and DENIES Plaintiff's motion. The Court also DISMISSES the MCPA claim. This disposes of the case in its entirety.
LET JUDGMENT ENTER ACCORDINGLY.