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February 9, 1995


The opinion of the court was delivered by: PAUL L. FRIEDMAN

 On March 31, 1985, Brenda McLaughlin completed an application for a Fidelity Security Life Insurance Company group life insurance policy. On June 10, 1985, she became insured under Policy No. FL-331, with her husband, defendant James McLaughlin, as the named beneficiary. The parties agree that Brenda McLaughlin made all of her premium payments under the policy from June 10, 1985 until June 1989. On June 10, 1989, the policy lapsed due to nonpayment of premiums. *fn1" On November 6, 1989, Fidelity informed Brenda McLaughlin that her life insurance policy was cancelled. According to defendant, Brenda McLaughlin became totally disabled sometime in 1985. Brenda McLaughlin died on September 3, 1991.

 Brenda McLaughlin's life insurance policy contained a waiver of premium disability benefit provision that stated:

Upon due proof of Total Disability of the Insured while the Policy is in force, the Company will waive the payment of any premium of the Insured becoming due after the commencement of and during continued total disability of the insured but not after the non-renewal of the Policy pursuant to the Section therein entitled "Renewal of Policy."

 Complaint, Ex. A. Defendant acknowledges that he was aware of this provision in the insurance policy. McLaughlin Aff. P 6; McLaughlin Dep. at 42. Defendant also admits that neither he nor his wife submitted proof under the disability policy to Fidelity that Brenda McLaughlin was totally disabled or applied for waiver of premiums, either orally or in writing, under the waiver of disability provision while the policy was in force. McLaughlin Dep. at 43-46, 65, 78-79. Defendant claims, however, that on several occasions subsequent to his wife's incapacitation, he and his wife telephoned Fidelity to inquire about the waiver of premium disability benefit provision, but were told by Fidelity employees that no such provision existed in the policy. Counter-Complaint P 8; Def. Opp. at 2; McLaughlin Aff. P 6.

 On January 14, 1992, Fidelity received a letter from James McLaughlin, dated January 2, 1992, requesting a waiver of premium for Brenda McLaughlin based on the disability benefit provision of her life insurance policy. Fidelity forwarded waiver of premium claim forms to Mr. McLaughlin, and he returned the forms in May 1992. Upon investigation into Brenda McLaughlin's medical history from 1985 until her death in 1991, Fidelity determined that no evidence existed to substantiate James McLaughlin's claim that his wife was totally disabled during the policy's active period. It therefore concluded that she would not have been eligible for waiver of the premium even if Fidelity had been provided with proof of total disability in a timely fashion.

 Fidelity filed this declaratory judgment action against James McLaughlin, claiming that neither the defendant nor his wife provided proof of total disability while the policy was in force, a condition precedent to obtaining a waiver of premium, and seeking a declaration that James McLaughlin therefore is not entitled to benefits under the policy. Defendant answered and filed a counterclaim, alleging that in reliance upon representations made by Fidelity employees regarding the absence of a waiver of premium provision in his wife's policy he permitted the policy to lapse.

 Fidelity seeks summary judgment against James McLaughlin on the ground that the insurance policy explicitly required that proof of total disability be submitted to Fidelity while the policy was in force in order to trigger the waiver of premium provision. *fn2" Defendant responds that his inquiries informed Fidelity of the nature of Brenda McLaughlin's disability and that he should not be denied benefits under the insurance policy for filing a belated claim when the misrepresentations of plaintiff's employees are to blame for his tardiness. Following a hearing on plaintiff's motion for summary judgment, both parties submitted supplemental memoranda. Upon consideration of all submissions made by the parties, the relevant legal authority and the arguments of counsel, the Court is persuaded that plaintiff's motion for summary judgment should be granted.


 Under Rule 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).

 On the other hand, the Rule requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits, depositions or other competent evidence setting forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ. P. 56(e). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

 In a suit on a contract, summary judgment is appropriate where the language of the contract is not ambiguous; "a written contract duly signed and executed speaks for itself and binds the parties without the necessity of extrinsic evidence." Byrd v. Allstate Ins. Co., 622 A.2d 691, 693 (D.C. 1993) (citation omitted). In the case of a life insurance policy, generally "the terms of the policy, so long as they are clear and unambiguous, express the contract between the parties and will be enforced by the courts unless they violate a statute or public policy." Price v. Doe, 638 A.2d 1147, 1149 (D.C. 1994); see Chiriboga v. Int'l Bank for Reconstruction and Development, 616 F. Supp. 963, 969 (D.D.C. 1985); Robinson v. Aetna Life Ins. Co., 288 A.2d 236, 238 (D.C. 1972).


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