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June 8, 1993

Ashok Chanda, et al.,
United States Office of Personnel Management, D.C. Department of Human Services, Metropolitan Life Insurance Co.

The opinion of the court was delivered by: THOMAS A. FLANNERY

 This matter comes before the Court on each party's motion for judgment following a mistrial declared on March 25, 1993. Plaintiffs have also filed a motion for a new trial against the District of Columbia and Metropolitan Life (MetLife) and a motion to strike these defendants' motions for judgment as not being timely filed. Federal defendant moves pursuant to Fed. R. Civ. P. 52(c) for judgment as a matter of law and argues that plaintiffs have failed to present evidence to support their claim that satisfactory proof of eligibility was submitted to the Office of Federal Employees' Group Life Insurance (OFEGLI) to increase the decedent's, Mala Chatterjee's, life insurance coverage by Options A and B. MetLife and the District of Columbia move for judgment pursuant to Fed. R. Civ. P. 50(b) on the same grounds.

 I. Findings of Fact

 This is a suit for the proceeds of a life insurance policy brought by the personal representative of the Estate of Mala Chatterjee, Ashok Chanda, the two children of decedent, Amit Chanda and Jeet Chanda, and Sandhya Chatterjee, the mother of decedent. It is founded on the breach of terms of a Certificate of Insurance issued to Mala Chatterjee by the defendants. The Certificate was based upon an underlying group life insurance policy issued by MetLife to the Office of Personnel Management (OPM). On March 22-25, 1993, this matter was tried before the Court on the claims against the federal defendant and before a jury on the claims against the other defendants. The case tried to the jury resulted in a mistrial when the jury was unable to reach a verdict.

 Mala Chatterjee was employed by the defendant District of Columbia in the Department of Human Services (DHS) from 1974 until her death on September 7, 1987. As a DHS employee, she was able to obtain a federal government life insurance policy (Federal Employees Group Life Insurance or FEGLI) through defendant United States OPM. The insurance policy was underwritten and administered by defendant MetLife. At issue is whether the decedent qualified for and received enhanced life insurance coverage.

 In order to obtain increased life insurance coverage, established employees, such as decedent, must follow a different procedure than new employees. Ms. Frankie Wheeler, supervisor of employee relations specialists, testified that new employees are not required to provide, on a Form 2822, proof of eligibility. Established employees, on the other hand, must submit a Form 2822, which is the result of a physical examination submitted directly to OFEGLI for review and approval. The OFEGLI Plan Description Booklet, Form 2817A, which is part of the certificate of insurance, indicates that Form 2822 is a prerequisite to obtaining the additional life insurance.

 Ms. Wheeler testified that the personnel office completes Part A of the Form 2822 and then advises the employee to take this form to his or her physician for completion. The employee must complete Part B in front of their physician. The physician then completes Part C, the medical portion, signs and certifies the form and forwards it to OFEGLI for review and approval. Upon receipt of the form by OFEGLI, OFEGLI reviews it to determine whether the employee is eligible based on the medical evidence submitted. Both Ms. Wheeler and Mr. Joseph Zulli, director of FEGLI for MetLife, testified that after the form is reviewed by OFEGLI, it is marked with a notation of approval or disapproval and returned to the employing agency. If the form is returned approved, the agency notifies the employee to come into the office to complete the Form 2817, which is the election of additional coverage.

 Plaintiffs introduced no direct evidence that a Form 2822 for Mala Chatterjee had been completed, sent to and approved by OFEGLI. The evidence demonstrated that decedent applied for and received basic FEGLI coverage. On February 12, 1986, decedent applied for Option A and Option B, which would have increased her coverage. Decedent completed a Form 2817, Election of Additional Life Insurance. Ms. Shirley Robinson, an employee relations specialist with the District, assumed that Mala Chatterjee was a new employee and mistakenly certified her as eligible for insurance on February 14, 1986. Subsequently, deductions were taken from decedent's pay checks from the date she was declared eligible until the date of her death in September 1987.

 Defendants, on the other hand, introduced evidence which showed that no record of a Form 2822 existed in either the records of the District of Columbia government or with OFEGLI. Ms. Wheeler testified that she reviewed Mala Chatterjee's personnel file and that there was no Form 2822 filled out by a physician in it. She also reviewed the decedent's payroll file but did not find an executed Form 2822 in it. Ms. Wheeler also testified that she had seen a Form 2821 on which Mr. Charles Davis, Chief of the Pay and Retirement Division of the District of Columbia Government, had certified that Mala Chatterjee was covered under Options A and B at the time of her death. This form, dated November 24, 1987, was introduced into evidence along with a later form (dated November 15, 1990) signed by Joan C. Sweeney, which certified that the decedent was not eligible for Options A and B at the time of her death. However, there was no testimony concerning the signatures on these forms, nor the general procedure followed in preparing the forms.

 Mr. William Byrd, who preceded Ms. Wheeler as chief of employee relations division from 1982 to 1992, also testified that he reviewed Dr. Chatterjee's personnel file and did not find a Form 2822 nor had he seen such a form for Dr. Chatterjee. Mr. Zulli testified that the records of OFEGLI were searched for the period October 1, 1985 to September 30, 1987, for a Form 2822 for decedent, but none was located. No record for Mala Chatterjee was maintained by OFEGLI until a Claim File was created after her death.

 The defendants also introduced evidence showing that the deceased had a medical condition which disqualified her from increasing her life insurance coverage in February 1986. Dr. Danish testified that based on his medical records, if he had completed a Form 2822 in February 1986, he would have indicated that she suffered from high blood pressure, chronic ulcerative colitis, anemia and was under treatment with a steroid called Prednisone. Dr. Barry Reed, an underwriter for MetLife, was qualified at trial as an expert. Dr. Reed testified that he had reviewed Dr. Chatterjee's medical records to determine whether her medical condition would disqualify her from obtaining the additional insurance coverage she sought under the MetLife underwriting guidelines. Dr. Reed testified that she would not have qualified under the MetLife guidelines for the policy for which she applied.

 II. Conclusions of Law

 A. Whether there was satisfactory proof of eligibility

 The first question before the Court is whether plaintiffs have proven by a preponderance of the evidence that decedent provided satisfactory proof of eligibility for the increased life insurance coverage which she sought in February 1986. See True v. Office of Personnel Management, 926 F.2d 1151, 1153 (Fed. Cir. 1991) (applicant must demonstrate by a preponderance of the evidence his entitlement to the retirement benefit he seeks); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037, 93 L. Ed. 2d 844, 107 S. Ct. 891 (1987).

 The Federal Employees' Group Life Insurance Act (FEGLI Act) established the life insurance program for federal government employees and D.C. Governmental employees who qualify for it. 5 U.S.C. § 8700 et seq. The federal government itself does not act as an insurer under the FEGLI Act. It merely purchases coverage from MetLife on behalf of its employees. Under the FEGLI Act, an employee is automatically ...

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