Amica Life Ins. Co. v. Barbor

• Citation: 488 F.Supp.2d 750
• Decision Date: 23 March 2007
• Docket Number: No. 05 C 3291.,05 C 3291.
• Parties: AMICA LIFE INSURANCE COMPANY, Plaintiff/Counter-defendant, v. Yousef BARBOR and Entissar S. Albabour, Defendants/Counter-plaintiffs.
• Court: U.S. District Court — Northern District of Illinois

488 F.Supp.2d 750

AMICA LIFE INSURANCE COMPANY, Plaintiff/Counter-defendant, v. Yousef BARBOR and Entissar S. Albabour, Defendants/Counter-plaintiffs.

No. 05 C 3291.

United States District Court, N.D. Illinois, Eastern Division.

March 23, 2007.

Jeffrey S. Goldman, Tobias Edward Schlueter, Sonnenschein, Nath & Rosenthal, LLP, Chicago, IL, for Plaintiff/Counter-defendant.

Jeremiah P. Connolly, Amanu Maralm Nwaomah, Gena Romagnoli, Bollinger, Ruberry and Garvey, Chicago, IL, for Defendants/Counter-plaintiffs.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiff Amica Life Insurance Company ("Amica") brought suit against defendants Yousef Barbor and Entissar. Albarbour, the beneficiaries of an Amica life insurance policy purchased by Faziah Taliaa. Plaintiff seeks a declaratory judgment decreeing that Taliaa's birth date, for the purposes of the insurance policy, was 1926, and that Amica has fulfilled its obligations under the policy. Defendants brought a counterclaim against plaintiff, seeking a judgment that plaintiff acted in bad faith by refusing to pay out the policy upon Taliaa's death, and seeking damages and attorneys' fees. Both parties have filed motions for summary judgment on plaintiff's claims. Additionally, plaintiff has filed a motion to strike portions of Barbor's affidavit, submitted in conjunction with defendants' motion for summary judgment and portions of defendants' statement of material facts. For the reasons set forth below, we grant in part plaintiff's motion to strike, deny plaintiff's motion for summary judgment, and grant defendants' motion for summary judgment.

BACKGROUND

We take the following factual background from the statements submitted by the parties pursuant to Local Rule 56. For purposes of summary judgment motions, we construe the facts in favor of the non-movant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Bledsoe v. City of Chicago, 1996 WL 406647, *2 (N.D.Ill. 1996) (stating that only reasonable inferences, not all conceivable inferences, will be drawn in favor of non-moving party). Summary judgment is then 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). See also Wainwright Bank & Trust Co. v. Railroaclmens, Fed. Say. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir.1986). The moving party has the burden to establish the lack of a genuine issue of material fact. Wainwright Bank & Trust Co., 806 F.2d at 149. Upon meeting that burden, the non-moving party must set forth specific facts demonstrating the existence of a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983). The mere existence of some factual dispute will not frustrate an otherwise proper summary judgment motion; only a genuine dispute over a material fact will defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although summary judgment is only appropriate where there are no genuine issues of material fact, the outcome of this case will be determined by the resolution of a specific fact, namely, Taliaa's birth date. The following facts are undisputed. Plaintiff issued a $100,000 life insurance policy (Policy No. 1-000112015) to Taliaa on March 15, 2000, effective January 2000. The policy was an LT-20 life insurance policy, available only to those between the ages of 15 and 65. The application upon which the policy was issued indicated that Taliaa was born in 1936, and thus eligible for an LT-20 policy. On May 8, 2000, Policy No. 1-000112015 was cancelled and a new policy (Policy No. 1-000114157) was issued increasing the total policy value to $250,000 and adding Barbor as a beneficiary.¹

Taliaa died on November 6, 2004, in Syria, and Barbor notified plaintiff of Taliaa's death two days later. Pursuant to Amica's policy and procedure to investigate the circumstances surrounding an insured's death, when an insured dies outside of the United States, Amica hired Worldwide Resources, Inc. to commence the investigation. During the course of the investigation, Worldwide discovered documents showing Taliaa's birth in 1926. Had Taliaa been born in 1926, she would have been 74 when she applied for an LT-20 life insurance policy in 2000, and would have fallen outside its acceptable age range.

Based on the uncovered evidence that Taliaa was born in 1926, Amica informed defendants that it was applying the policy's misstatement of age or sex provision and, therefore, Taliaa's death benefit was $0.² Six weeks later, defendants informed plaintiff that the documents showing Taliaa's birth year as 1926 were based on incorrect Syrian documents. In support of their contention that Taliaa was actually born in 1936, defendants presented plaintiff with a court order entered in Syria on August 1, 2004, which amended Taliaa's Syrian Civil Service Record to reflect a birth year of 1936,

Although plaintiff requested that Worldwide investigate the process by which the Syrian order was created, the domestic and international situations in and around Syria allegedly made it impossible for Worldwide to safely verify the Syrian order. And while defendants dispute such a contention and object to the decision to apply the age adjustment provision of Taliaa's policy to limit defendants' recovery, plaintiff held steady and issued a premium refund check, including three percent interest, for a total amount of $8,474.01 to Taliaa's estate.

The parties' disagreement centers on the year of Taliaa's birth, and neither disputes that had Taliaa been born in 1936, plaintiff would be required to pay the full value of the policy. Nor do the parties dispute that documents exist dating Taliaa's birth in 1926 and 1936. The following documents show Taliaa's birth year as 1926:

1. INS Form G-325A, completed by Barbor on behalf of Taliaa on December 8, 1995;

2. Petition for Alien Relative, completed by Barbor on behalf of Taliaa 3. Barbor's Affidavit of Support on behalf of Taliaa, completed on October 2, 1996;

4. Application for Immigrant Visa and Alien Registration, completed by Taliaa with assistance from defendants on March 3, 1997. Also, attachments included copies of Taliaa's Transcript of Civil Status Record, Extract of Judicial Record, and Extract of Civil Status Record;

5. Medical Examination of Applicants for United States Visa, completed on January 21, 1997, by Mohammad Owais Terakji;

6 Barbor's 2003 response to interrogatory questions in connection with a separate civil rights suit, in which he admitted under oath that his mother was 77 years old; and

7. Police and medical reports from Taliaa's hospital and healthcare stay from August 2001 through December 2001.

Nor is there dispute that the following documents indicate that Taliaa was born in 1936:

1. Taliaa's application for a social security card;³

2. Taliaa's Illinois identification card, issued December 22, 1999;

3. A copy of an order issued by the Civil Court of Reconciliation in Salkhad, correcting Taliaa's birth year to read 1936;

4. A copy of Extract Family Registration Record from the Syrian Arab Republic; and

5. Taliaa's death certificate from the Syrian Arab Republic.⁴

Although neither party disputes the existence of the documents, each party has an explanation as to why there are documents showing inconsistent dates for Taliaa's birth. Defendants claim that Taliaa's birth date was incorrectly noted in 1958, when she received her initial civil status record, which is the Syrian equivalent of the birth certificate. Thereafter, whenever Taliaa or defendants expected that her 1958 civil status record would be used for identification confirmation, they too stated that her birth date was in 1926. They did so, defendants argue, so as not to hold up or negate her chances for immigration. Because her birth date was always incorrect, defendants contend, Taliaa finally made the trip to Syria to petition the court to change her records to reflect her correct birth date of 1936. The family registration record and the death certificate reflect the changes ordered by the Syrian civil court.

Plaintiff contends, on the other hand, that documents reflecting Taliaa's birth date of 1936 are inadmissible because this court should not grant comity to the Syrian court order or any document flowing from that order. Plaintiff asserts that Syrian courts are notoriously corrupt and do not reflect a full and fair hearing on the merits of the case.

Before we can analyze either party's motion for summary judgment, we must assess plaintiff's motion to strike portions of Barbor's affidavit and related paragraphs of defendants' statement of material facts. Plaintiff correctly notes that Federal Rule of Civil Procedure 56(e) requires affidavits submitted with a summary judgment motion "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated [t]herein."

To determine whether plaintiff's motion to strike has merit, we address Barbor's affidavit testimony by reviewing each contested paragraph. We deny plaintiff's motion to strike with respect to paragraph 1. The existence and residence of Barbor's mother are within his personal knowledge. We grant, in part, plaintiff's motion with respect to paragraph 2. Barbor may testify as to his knowledge that his mother went to Syria; the events that transpired in Syria, however, are beyond his personal knowledge. See, e.g., Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir.1998). The documentary evidence submitted with defendants' briefs, however, is evidence of her conduct in petitioning the Syrian court for...