In re Izaguirre, Bankruptcy No. 92-70435. Adv. No. 93-6165.
| Decision Date | 22 March 1994 |
| Docket Number | Bankruptcy No. 92-70435. Adv. No. 93-6165. |
| Parties | In re Amado J. IZAGUIRRE, Debtor. ANTHEM LIFE INSURANCE CO., Plaintiff, v. Amado J. IZAGUIRRE, Defendant. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia |
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Bradley L. Cooper of Alston & Bird, Atlanta, GA, for Anthem Life Ins. Co.
No one appeared on behalf of the debtor.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DISCHARGEABILITY BUT DETERMINING THAT A DISCHARGE WOULD NOT BAR RECOUPMENT
Amado J. Izaguirre (the "Debtor") is a beneficiary under a long-term disability policy issued by a predecessor to the plaintiff, Anthem Life Insurance Co. ("Anthem"). The policy provides that benefits otherwise payable to an employee are to be reduced by the amounts an employee is eligible to receive under the United States Social Security Act. Anthem contends that the Debtor misrepresented his right to receive Social Security benefits and that as a result of that misrepresentation, Anthem overpaid the benefits to which the Debtor was entitled. Anthem moves for summary judgment against the Debtor for $38,788.18 and for a determination that the debt is excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(B). Anthem also seeks a determination that the alleged debt to Anthem is nondischargeable by virtue of a right of recoupment.
Based upon the evidence presented with the Motion for Summary Judgment, and the record in this adversary proceeding, the court makes the following findings of fact and conclusions of law.
In 1981, the Debtor became entitled to long-term disability benefits under a Group Long Term Disability Employee Insurance Policy (the "Policy") issued by Coastal States Life Insurance Company, a predecessor to Anthem, to the Debtor's employer, Metropolitan Atlanta Rapid Transit Authority. The Policy, as amended, provides in relevant part in the policy amendment as follows:
After the Debtor began receiving disability benefit payments from Anthem, he signed documents entitled "Insured's Supplementary Statement" (the "Statements") declaring that at the time of signing of each Statement, he was not eligible for, had not applied for or was not then receiving Social Security benefits. The Debtor executed the Statements on October 20, 1985, June 16, 1986, December 22, 1986, and on another occasion without dating that Statement.
Anthem alleged in its complaint that at the time of signing the Statements, the Debtor was "receiving" Social Security benefits and that as a result of payments of benefits to the Debtor in excess of the amount to which he was entitled under the policy, the Debtor is indebted to Anthem in the amount of $38,788.18. In his answer, the Debtor denied those allegations. Thereafter, Anthem amended its complaint to allege that at the time of signing the Statements the Debtor was eligible for and had applied for Social Security benefits. Anthem amended its complaint a second time to add an additional count for recoupment, alleging that Anthem had the right to recoup overpayments against future continuing benefits payable to the Debtor. The Debtor failed to answer or otherwise respond to the first and second amended complaints.
On June 7, 1993, Anthem served the Debtor with a copy of "Anthem Life Insurance Company's First Continuing Interrogatories, Requests for Admission, and Request for Production of Documents to Debtor" (the "Discovery Requests") and filed a Certificate of Service with the court. The Requests for Admission asked the Debtor to admit that (1) the Policy governs the Debtor's right to receive disability benefits from Anthem, (2) the Debtor executed the Statements, (3) at the time Debtor executed the Statements he had applied for Social Security benefits, (4) at the time Debtor executed the Statements he was eligible for Social Security benefits, and (5) at the time Debtor executed the Statements he was receiving Social Security benefits. The Debtor failed to respond to the discovery, including the Requests for Admission.
Anthem supported its Motion for Summary Judgment with an affidavit of an employee, Bonnie Green, who stated that "before it learned that Debtor had applied for, was eligible to receive, and/or was receiving social security benefits, Anthem had continued to pay his monthly long term disability payment in its entirety, and as a result it had overpaid Debtor in the amount of $42,798.26" and that Anthem had begun to recoup overpayments from monthly disability benefits such that "by the time Anthem learned of the present bankruptcy filing, Debtor was still indebted to Anthem in the amount of $38,788.18 as a result of overpayment of benefits." The affidavit of Ms. Green states that she is employed by Anthem and has personal knowledge of the facts stated in the affidavit. The averments of Ms. Green are tentative as to receipt of funds by the Debtor from Social Security.
Pursuant to Fed.R.Civ.P. 56(c), which is incorporated in Fed.R.Bankr.P. 7056, a party moving for summary judgment is entitled to prevail 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 judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The initial burden of proof is on the moving party to establish that no genuine factual issue exists. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). The movant must point to the pleadings, discovery responses or supporting affidavits which tend to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. This evidence is to be construed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir.1987).
Unless the moving party satisfies its burden to show an absence of a genuine issue of material facts, no burden of going forward arises for the opposing party to demonstrate that a genuine issue of material fact exists. Clark, 929 F.2d at 608. Where the moving party has satisfied its burden, the non-moving party must designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
In support of its Motion for Summary Judgment, Anthem asserts that the Debtor admitted all essential factual elements necessary for a determination of non-dischargeability of debt, which entitles it to a judgment pursuant to section 523(a)(2)(B) and pursuant to a common law right of recoupment as a matter of law. Anthem contends that the Debtor's failure to answer the first amended complaint, second amended complaint and Requests for Admission results in his admission of all factual allegations contained therein.
Fed.R.Civ.P. 8(d), which is incorporated in Fed.R.Bankr.P. 7008(a), provides that the failure to deny averments in a pleading that requires a responsive pleading constitutes an admission of the facts alleged therein. The party to whom a request for admission is directed has the burden to take some affirmative action either to answer the request or to object to it. Mangan v. Broderick & Bascom Rope Co., 351 F.2d 24 (7th Cir.1965), cert. denied, 383 U.S. 926, 86 S.Ct. 930, 15 L.Ed.2d 846 (1966). If a written answer or objection to a request for admission is not served upon the party requesting the admission within 30 days after service of the request, the request is deemed admitted. Fed.R.Civ.P. 36, incorporated in Fed. R.Bankr.P. 7036. U.S. ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir.1962), cert. denied, 372 U.S. 915, 83 S.Ct. 717, 9 L.Ed.2d 722 (1963).1
On October 18, 1993, Anthem filed a Notice of Filing Discovery Materials in Support of Motion for Summary Judgment and with it, the Discovery Requests. The unanswered Requests for Admission constitute "admissions on file" for the purposes of Fed. R.Civ.P. 56(c). The Debtor's failure to answer or otherwise to respond to either of the amended complaints results in the admission by the Debtor of Anthem's averments in those amended complaints, with an exception explained below.
The allegation in the Motion for Summary Judgment that the Debtor failed to respond to the first amended complaint, second amended complaint and Requests for Admission is uncontroverted. The Debtor failed to file any response to the Motion for Summary Judgment; accordingly, the Motion for Summary Judgment is deemed unopposed. LR 220-1(b)(1), N.D.Ga. included in BLR 705-2, N.D.Ga.
Because an issue of fact remains with respect to an element of plaintiff Anthem's claim under section 523(a)(2)(B), summary judgment must be denied on that count. No issue of material fact exists with respect to Count II of the second amended complaint. The gravamen...
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