                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 06a0584n.06
                                Filed: August 16, 2006

                                           No. 05-3791

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

PATRICIA GREEN,

          Plaintiff-Appellant,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
JACKSON NATIONAL LIFE INS. CO.,                            COURT FOR THE SOUTHERN
                                                           DISTRICT OF OHIO
          Defendant-Appellee.


                                                      /

Before:          MARTIN, GUY, CLAY, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Patricia Green brought this action against Jackson

National Life Insurance Company to recover the proceeds of a life insurance policy which it refused

to pay her, asserting claims of breach of contract and promissory estoppel. The case was referred

to a magistrate judge upon the consent of the parties, pursuant to 28 U.S.C. § 636(c). The magistrate

granted Jackson National’s motion for summary judgment, and Mrs. Green now appeals that

decision. For the following reasons, we reverse.

                                                 I.

          Mrs. Green was married to the decedent, Carl Green, from December 7, 1976 until Mr.

Green’s death in 2003. Both had children from previous marriages. In 1983, the Greens both

purchased term life insurance policies through Jackson National Life Insurance Company. Initially,

Mrs. Green was designated as the primary beneficiary of Mr. Green’s $25,000 policy. Mrs. Green
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 2

was also the sole beneficiary of Mr. Green’s will, which was drafted in 1994 or 1995, and remained

unchanged thereafter.

         Mr. and Mrs. Green experienced marital difficulties in the fall of 1991 and, as a result, lived

apart for several months, after which they reconciled and resumed living together. During their brief

separation, Mr. Green changed the beneficiary of his life insurance policy from Mrs. Green to his

two sons from his prior marriage, David and Paul Green. Through the guidance of his insurance

agent, Dan Finke, Mr. Green used Jackson National’s beneficiary change form to effect the change.

Mrs. Green acknowledges that the signature on this document is Mr. Green’s, but claims that she

was unaware of this change in beneficiary, and never discussed the insurance policy with Mr. Green

or anyone else prior to October 2002. Mrs. Green assumed that she was the beneficiary of the policy

during this time.

         In 1990, Mr. Green grew ill with diabetes. In 1992, Mr. Green needed procedures to fix

cardiac difficulties, and began taking insulin for his diabetes. In 1994 or 1995, Mr. Green had

five-way bypass heart surgery. Mrs. Green took substantial responsibility in caring for Mr. Green,

although Mr. Green had good mental capacity and still could converse and write. Mrs. Green

accumulated approximately $20,000 worth of debt for medical and other expenses in caring for Mr.

Green.

         In early October 2002, Mr. Green asked Mrs. Green to call Jackson National to determine

the primary beneficiary on his life insurance policy, and to “confirm and make sure that you’re the

beneficiary.” It was typical for Mrs. Green to make these types of phone calls for her husband after

his health had declined. Jackson National’s customer service representative told Mrs. Green that
No. 05-3791
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Page 3

he needed to speak with Mr. Green. After Jackson National’s representative heard Mr. Green in the

background, he continued to talk to Mrs. Green, asking her Mr. Green’s birthday. Mr. Green also

took the phone briefly to participate in this phone call. The representative could not find a policy

listed under Mr. Green’s name and birth date.

       After this phone call, Mr. Green suggested that Mrs. Green call Finke, their insurance agent.

Finke directed Mrs. Green to collect a copy of Mr. Green’s birth certificate and to handwrite a

request for a copy of the policy. Mrs. Green drafted an unsigned, handwritten letter, dated October

30, 2002, which stated in part: “Could you please list the beneficiary on the policy.” Finke added

his own notation to the letter clarifying Mr. Green’s date of birth, and forwarded it to Jackson

National. In response, Jackson National sent Mr. Green a letter dated November 15, 2002. The

November 15, 2002 letter stated in relevant part:

       Thank you for your request for policy information. Because your policy was issued
       before 1986, a duplicate copy is not available. However, we are able to provide you
       with the following policy summary:

       Insured: Carl Green
       Owner (as of current date): Carl Green
       Beneficiary (as of current date): Patricia Green
       Face Amount: $25,000.00
       Issue Date: September 13, 1983
       Issue Age: 59
       Plan of Insurance: Ultimate IV

       This certificate is issued based upon a written statement by the owner that the
       original policy has been lost or destroyed. This certificate in no way changes or
       modifies the terms and conditions of the original policy. It is verification that the
       above policy was issued. Any additional information about the benefits may be
       obtained at any time by writing to Jackson National Life’s home office in Lansing
       Michigan.

Mrs. Green testified that after receiving this letter, Mr. Green was “relieved,” and told Mrs. Green
No. 05-3791
Green v. Jackson National Life Ins. Co.
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“[y]ou’re the beneficiary.” He also expressed this sentiment to Mrs. Green’s two sisters, saying “we

got the response from Jackson, they found my policy, and Pat’s the beneficiary. So we’re all set

now, everything’s taken care of.” Mrs. Green also testified that Mr. Green made a similar statement

to a family friend.

       Mr. Green died on January 9, 2003. After his death, Mrs. Green called Finke to ask him

“what [she] needed to do to process [her] claim as beneficiary of the insurance.” Finke told Mrs.

Green to send him a copy of Mr. Green’s birth certificate as well as Mr. Green’s obituary from the

newspaper. Finke promised to process the papers and told her that after Jackson National responded

in about ten to fourteen days, he would set up an appointment with her “to move forward.”

       On February 7th, 2003, Mrs. Green received a letter from Jackson National stating that David

Green and Paul Green were the beneficiaries of the policy. Mrs. Green called Finke that same day

and told him about the letter. Finke was surprised and told Mrs. Green that he would check into the

situation. He called Mrs. Green back later, and affirmed the contents of Jackson National’s letter.

Later that evening, Mrs. Green called David and told him that he and Paul were the beneficiaries of

the policy. Paul Green came to Mrs. Green’s shop to pick up a copy of Mr. Green’s birth certificate

for his mother’s (Mr. Green’s first wife’s) use in redeeming her policy on Mr. Green. Per Finke’s

instructions, Mrs. Green gave Paul Mr. Green’s death certificate, her copy of the life insurance

policy, and the February 7th letter from Jackson National which specified that David and Paul Green

were the beneficiaries of the policy.

       Mrs. Green concedes that Mr. Green signed the change in beneficiary form in 1991 naming

his sons as beneficiaries. Mrs. Green claims that prior to his death, Mr. Green discussed with her
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 5

his wish that she use the insurance money to pay off his medical debt and funeral expenses, and then

use the rest to take a vacation.

        Mrs. Green filed suit in Ohio state court on February 17, 2004. Her complaint alleged two

breach of contract claims, one based on the theory that by paying the premiums herself she became

a party to the contract, and the other based on her rights as a third party beneficiary. The complaint

also included claims for promissory estoppel and bad faith refusal to pay the proceeds of an

insurance policy. On March 22, 2004, Jackson National removed the case to the United States

District Court for the Southern District of Ohio, which had diversity jurisdiction over the suit. With

the consent of the parties, the case was assigned to Magistrate Judge Timothy Hogan. The

magistrate granted in full Jackson National’s motion for summary judgment on May 13, 2005.

                                                   II.

       This Court reviews a district court’s grant of summary judgment de novo, and must view “the

facts and any inferences that can be drawn from those facts . . . in the light most favorable to the non-

moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1996)). Summary judgment can only be

granted where “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).

       On appeal, Mrs. Green argues that the magistrate erred in granting summary judgment

because issues of material fact exist regarding (1) whether Mrs. Green was an intended third party

beneficiary of her husband’s life insurance policy; (2) whether the November 15, 2002 letter from
 No. 05-3791
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Jackson National constituted a waiver of the change of beneficiary provisions of the insurance policy;

and (3) whether Jackson National should be required to compensate Mrs. Green based on the

November 15, 2002 letter under the doctrine of promissory estoppel. This diversity case is governed

by Ohio contract law.

A. Third Party Beneficiary Status

        Under Ohio contract law, an individual who is not a party to a contract may have enforceable

rights as an intended third party beneficiary where “the promisee . . . intends that a third party should

benefit from the contract.” Hill v. Sonitrol of Southwestern Ohio, Inc., 521 N.E.2d 780, 784 (Ohio

1988) (quoting Norfolk & Western Co. v. United States, 641 F.2d 1201, 1208 (6th Cir. 1980)). In this

case, Mr. Green’s life insurance contract obviously had some intended third party beneficiary —

whatever individual was specified in the insurance policy was intended by both contracting parties

to receive $25,000 when Mr. Green died.

        Mrs. Green’s deposition testimony supports her claim that she was the intended beneficiary

of the insurance policy. She testified that Mr. Green took the initiative in contacting Jackson

National, either saying “Pat, let’s just confirm and make sure that you’re the beneficiary,” or “that

everything is in order for us,” which she took to mean the same thing. She also testified that upon

receiving Jackson National’s November 15, 2002 letter which stated she was the beneficiary, Mr.

Green was “relieved” and told Mrs. Green and others that she was the beneficiary.

        Jackson National emphasizes that the “official” designation of David and Paul Green as

beneficiaries refutes Mrs. Green’s claim that Mr. Green intended her to be the beneficiary. This

argument is not availing for a few reasons. First, Mrs. Green claims that Mr. Green attempted, with
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 7

her assistance, to change her back to the designated beneficiary. Both her testimony and the

handwritten note she sent Jackson National on Mr. Green’s behalf support this claim, and if a trier

of fact finds this version to be credible, and to be a sufficient attempt to change the beneficiary, the

earlier designation of Paul and David becomes irrelevant. Further, Jackson National’s letter to Mr.

Green on November 15 identifies Mrs. Green as the beneficiary. Thus, at best, Jackson National

itself did not know in November of 2002 who the “officially” named beneficiary of the policy was.

There is thus a material issue of fact as to who was the designated beneficiary, and by essentially

relying on Jackson National’s current version of the beneficiary designation, the magistrate

impermissibly weighed the evidence at summary judgment in Jackson National’s favor.

       While Mr. Green’s efforts to change his policy’s beneficiary to Mrs. Green did not comply

with the change of beneficiary provisions of the policy, they may have been sufficient based on the

doctrine of substantial compliance. Under Ohio law, “where the insured has an unconditional right

to change the beneficiary of an insurance policy, a change may be effected even if the provisions of

the policy setting forth the manner of effecting the change were not complied with exactly.”

Tomaneng v. Reeves, 180 F.2d 208, 209 (6th Cir. 1950)); see also Doughty v. Nat’l Benefit Life Ins.

Co., Case No. 95AP040027, 1995 Ohio App. LEXIS 6024 (Ohio Ct. App. Dec. 11, 1995). To

establish substantial compliance, a party must show “(1) that the insured had determined to change

the beneficiary and (2) that he had done everything to the best of his ability to effect the change.”

Tomaneng, 180 F.2d at 209. Mrs. Green’s status as a third party beneficiary turns on this possibility,

because if Mr. Green “substantially complied” with the change of beneficiary provision, Mrs. Green

has standing as a third party beneficiary to enforce the contract.
No. 05-3791
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Page 8

       Given Mrs. Green’s testimony that Mr. Green in fact endeavored to change her to the policy’s

beneficiary and was dissuaded from taking additional steps to notify Jackson National based on

Jackson National’s statement that Mrs. Green already was the beneficiary, a material issue of fact

exists on the issue of substantial compliance. According to Mrs. Green’s testimony, Mr. Green had

determined to make her the beneficiary of his life insurance policy. This evidence supports the first

element of substantial compliance. Her letter to Jackson National was an attempt to confirm, on her

husband’s behalf, that she was the named beneficiary of his policy. In light of Jackson National’s

letter stating that she already was the beneficiary, a reasonable trier of fact could find that Mr. Green

did everything to the best of his ability to effect the change. Alternatively, although the magistrate’s

determination that Mr. Green’s actions were insufficient to constitute substantial compliance may

ultimately be decided by a trier of fact, this finding involved a weighing of the evidence, and should

not have been made at the summary judgment stage. See, e.g., Doughty, 1995 Ohio App. LEXIS

6024 at *5 (reversing entry of summary judgment on issue of substantial compliance because of

material factual dispute as to whether actions of policy holder amounted to substantial compliance).

The Greens’ letter to Jackson National, and subsequent reliance on the company’s reply, could

support a determination that Mr. Green did everything to the best of his ability to change the

beneficiary. Mrs. Green has therefore made a sufficient showing as to the second element of

substantial compliance.         It would have made little sense after Jackson National informed Mr.

Green that Mrs. Green was the beneficiary of the policy for Mr. Green to have written back to change

the beneficiary from Mrs. Green to Mrs. Green, as Jackson National argues he might have done. It

would have been redundant for Mr. Green to write again to Jackson National and essentially cross-
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 9

examine the insurance company by saying “are you sure my wife is the beneficiary.” A rational juror

could find that these steps went beyond what was required to show substantial compliance, and that

in the face of Jackson National’s reply letter confirming his belief that his wife was the beneficiary

of the policy, Mr. Green did everything to the best of his ability to effect the change.

       Jackson National relies on the case of Reno v. Clark, 514 N.E.2d 456, 458 (Ohio Ct. App.

1986) for its argument that Mr. Green’s actions here did not amount to substantial compliance.

Although Reno, like this case, involved an insured who endeavored to change beneficiaries but was

thwarted by a mistake of the insurance company, the nature of the insurance company’s mistake in

Reno distinguishes it from this case. The insurance company in Reno did not misrepresent who the

beneficiary of the insurance policy was to the policy holder. Rather, the insurance company’s agent

did not have the proper paperwork to change the beneficiary when the insured requested the change,

and apparently the change never occurred as the policy holder took no further action. Id. at 458. The

fact that the insured in Reno knew who was identified as the policy’s beneficiary and failed to change

it distinguishes Reno from this case, where Mr. Green may have wanted to change his beneficiary,

but was led to believe his intended beneficiary was already designated under the policy. In this case,

the dispute over the identity of the intended beneficiary creates an issue of material fact, and Mrs.

Green’s evidence that Jackson National assured Mr. Green that his wife was the intended beneficiary

should have been sufficient to survive summary judgment.

       Significantly, the Ohio courts have held that a “decedent’s intent and whether there is

sufficient compliance with the policy provisions are factual determinations which cannot be resolved

in a summary judgment fashion.” Allstate Life Ins. Co. v. Lardner, No. 54575, 1988 Ohio App.
No. 05-3791
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LEXIS 4529, at *8 (Ohio Ct. App. Nov. 17, 1988). Because the evidence Mrs. Green has introduced

created a material issue of fact on the issues of Mr. Green’s intent and his substantial compliance,

they were particularly suited to be tried to a jury. Mrs. Green needed to come forth with “more than

a scintilla of evidence” of Mr. Green’s intention to make her the beneficiary and of his efforts to

effect the change in order to defeat Jackson National’s motion for summary judgment. See Aparicio

v. Norfolk & W. Ry., 84 F.3d 803, 814 (6th Cir. 1996). She has met this standard, and as a result, the

magistrate incorrectly granted summary judgment in favor of Jackson National on this issue.

B. Waiver

       The magistrate also granted summary judgment to Jackson National with regard to Mrs.

Green’s claim that Jackson National waived the change of beneficiary provisions set forth in its

insurance policy through its response to her inquiry as to the identity of the policy’s beneficiary. The

magistrate found that the November 15, 2002 letter could not amount to a waiver, given its express

statement that “this certificate in no way changes or modifies the terms and conditions of the original

policy,” and the fact that the policy provides more formal procedures for changing beneficiary. Mrs.

Green challenges this decision on appeal, stating that it is also a question of fact and an improper

subject for summary judgment.

       Under Ohio law, a party to a contract can waive its rights under a provision of a contract if

it relinquishes the right intentionally. Cokor v. Borden Chemical Div. of Borden, 1988 Ohio App.

LEXIS 5018 (Ohio Ct. App. 1988). In order to prove waiver, a party must show a “clear,

unequivocal, decisive act of the party against whom the waiver is asserted.” Id. at *9.

       Based on this standard, there is no evidence that Jackson National waived its right to enforce
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 11

the change of beneficiary provisions of Mr. Green’s insurance policy. The November 15, 2002 letter

only recited who the beneficiary of the policy was, and in fact explicitly provided that it did not

change any terms of the original policy. The fact that the company made a mistake in identifying the

beneficiary does not amount to a waiver, as a mistake clearly is not an intentional relinquishment of

a known right. Mrs. Green’s suggestion that a finder of fact could determine that Jackson National

knowingly waived the change of beneficiary provision through the letter is unsupported by the

language of the letter itself or any other evidence in the record. Thus the magistrate’s grant of

summary judgment as to Mrs. Green’s waiver argument was correct.

C. Promissory Estoppel

       The magistrate also entered summary judgment on Mrs. Green’s claim of promissory

estoppel. The Ohio Supreme Court has “adopted the doctrine of promissory estoppel that was set

forth in the Restatement of the Law 2d, Contracts (1981), Section 90: ‘A promise which the promisor

should reasonably expect to induce action or forbearance on the part of the promisee or a third person

and which does induce such action or forbearance is binding if injustice can be avoided only by

enforcement of the promise.’” Shampton v. City of Springboro, 786 N.E.2d 883, 887 (Ohio 2003).

The state courts have similarly followed the Restatement’s definition of a promise as a “manifestation

of intention to act or refrain from acting in a specified way, so made as to justify a promisee in

understanding that a commitment has been made.” GGJ, Inc. v. Tuscarawas County Bd. of Comm’rs,

No. 2005 AP 07 0047, 2006 Ohio App. LEXIS 2402, at *13 (Ohio Ct. App. May 16, 2006). Pursuant

to this standard, a reasonable trier of fact could find in favor of Mrs. Green on her promissory

estoppel claim.
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 12

       Mrs. Green relies here again on Jackson National’s November 15, 2002 letter, which states

that she was the beneficiary of Mr. Green’s insurance plan, claiming that it was “a promise that such

information was accurate of [sic] the current date.” She also claims that both she and Mr. Green

reasonably relied upon that promise.

       The magistrate dismissed Mrs. Green’s promissory estoppel claim by noting that the

November 15 letter did not constitute a promise, and that there was no detrimental reliance on the

letter. This conclusion was not supported by uncontested facts, and summary judgment was thus

improper. See Vision America, Inc. v. Levin, No. C-890707, 1991 Ohio App. LEXIS 707, at *4-5

(Ohio Ct. App., Feb. 20, 1991) (stating that with regard to a claim for promissory estoppel,

“[g]enerally, the import of the promise presents questions of fact for the jury. Accordingly, what

action or forbearance the promisor reasonably should have expected of the promisee, and whether

the action or forbearance flowing from the promise was reasonable present questions of fact that need

to be resolved by the jury.” (internal citations omitted)).

       The primary significance of identifying Mrs. Green as the policy’s beneficiary in the

November 15 letter was to indicate that Jackson National intended to act by paying her the proceeds

of the policy upon Mr. Green’s death.       A reasonable fact finder could find that this statement

amounted to a “manifestation of intention to act or refrain from acting in a specified way,” and

qualify as a promise under Ohio law. The statement of the Ohio Court of Appeals in Vision America

that the import of a promise is a factual determination, particularly suited to be submitted to a jury,

further bolsters this conclusion.

       The magistrate emphasized the fact that the November 15 letter stated that it did not change
 No. 05-3791
 Green v. Jackson National Life Ins. Co.
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the terms of the policy. The exact language of the letter is that it “in no way changes or modifies the

terms and conditions of the original policy.” (emphasis added). Jackson National argues that this

language should have indicated to Mr. Green that he could not rely on the letter. However Mrs.

Green was the beneficiary under the original policy. Although this point largely only confuses the

issue, if it is in fact relevant at all, the reference to the original policy bolsters Mrs. Green’s claim.

Not only was she the beneficiary under the original policy, but the letter confirms that Jackson

National’s understanding at the time the letter was written was that she still was the beneficiary.

Because Mrs. Green’s status as beneficiary does not represent a change in the original policy, and

Jackson National confirmed that Mrs. Green was still the beneficiary as of November 2002, nothing

in this language would suggest to any reader that Mrs. Green might not be the beneficiary, or that

Jackson National was not promising to pay her the proceeds of the policy. Similarly, there is nothing

in this language that would make it unreasonable for either Mr. or Mrs. Green to rely on the promise.



        Jackson National also contends that even if the elements of estoppel were established here,

“estoppel is not available to create coverage in the insurance policy, which is not already within the

policy’s terms.” As this Court has noted previously there is no undue expansion of coverage where

a party “seeks only the payment of benefits under the express terms of the policy agreement.” Jones

v. Jackson Nat’l Life Ins. Co., Case Nos. 93-1503, 93-1528, 1994 U.S. App. LEXIS 15400, at *15

(6th Cir. June 20, 1994). Mrs. Green does not seek compensation for some coverage that was not part

of the original policy, which distinguishes her claim from those in cases cited by Jackson National,

and thus this argument is not relevant here.
 No. 05-3791
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        Mrs. Green has also provided evidence that both she and Mr. Green relied to their detriment

on the November 15 letter. In her deposition, Mrs. Green testified that she incurred roughly $20,000

of debt in purchasing medicine and covering other expenses for her ailing husband. She also testified

that she and her husband had planned on her using the insurance proceeds to cover this debt after he

died. They also intended that the proceeds be used to cover the expenses for Mr. Green’s funeral,

and to pay for a vacation for Mrs. Green if possible. These facts demonstrated detrimental reliance

on Mrs. Green’s behalf, as she took on substantial debt in caring for her husband without pursuing

other avenues of funding, anticipating that she could be reimbursed with the insurance proceeds.

        Similarly, Mrs. Green introduced facts supporting the contention that Mr. Green relied to his

detriment on Jackson National’s letter. Mr. Green wanted to call Jackson National to confirm that

his wife was in fact the beneficiary. Mrs. Green also testified that Mr. Green was relieved and

satisfied when Jackson National confirmed later that she was the beneficiary, and expressed this

sentiment to several people. Mr. Green took no further action with regard to the policy from the time

he received this letter until his death. Based on this evidence, it would be entirely reasonable to find

that Mr. Green relied upon the November 15 letter by refraining from taking any additional action

to change the beneficiary of his life insurance policy to Mrs. Green. This reliance was detrimental

to Mr. Green (his policy did not officially identify his desired beneficiary) and was reasonable (he

relied on a statement from the insurance company that the beneficiary designation was who he

intended it to be).

        By adopting the definition of promissory estoppel set forth in the Restatement, the Ohio courts

have clearly provided that a third party to a promise (here Mrs. Green, who is a third party to Jackson
 No. 05-3791
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 Page 15

National’s promise to her husband) can recover for her own detrimental reliance on that promise.

See Shampton, 786 N.E.2d at 887 (providing recovery for detrimental reliance “on the part of the

promisee or a third person”). It is thus clear that Mrs. Green can advance a promissory estoppel

claim based on her reliance, and she has introduced sufficient facts to survive summary judgment on

that claim.

        We have found no authority under Ohio law addressing whether Mrs. Green could enforce

a promise based on the reliance of her husband, the original promisee. Given this uncertainty, we are

required to make an “Erie guess” as to whether the state’s law of promissory estoppel would allow

such a theory of recovery. See Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004). In light

of related principles of Ohio law, our prediction is that such a theory of recovery would be allowed.

Through the adoption of section 90 of the Restatement, the Ohio courts provide for recovery by a

third party to a promise based on the third party’s detrimental reliance. Of course the doctrine of

promissory estoppel also provides for recovery based on the detrimental reliance of the promisee.

As the comment to the Restatement makes clear, the policy behind allowing both types of recovery

is largely supported by the fact that the promisor can foresee that the promisee, or the third party, will

in fact rely on the promise to their detriment.1 See Restatement (Second) of Contracts, §90, cmt. c.

(“If a promise is made to one party for the benefit of another, it is often foreseeable that the


         1
          In fact, it seems possible that there is a stronger case for recovery by a third party
 beneficiary based on the detrimental reliance of the original promisee, as opposed to her own
 detrimental reliance, as it could likely be more foreseeable to the promisor that the original
 promisee would rely on the promise than that the third party would. Allowing the third party to
 enforce such a claim simply recognizes that the promise was intended to provide a benefit to the
 third party, and does less to expand the doctrine of promissory estoppel on its own than does the
 rule that a third party can recover for her own reliance.
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 16

beneficiary will rely on the promise. Enforcement of the promise in such cases rests on the same

basis and depends on the same factors as in cases of reliance by the promisee.”). Thus, holding the

promisor to his promise promotes compensation of detrimental reliance on the promise by either the

promisee or an intended third party beneficiary, regardless of which of the two brings the claim to

enforce the promise.

       Additionally, Ohio law provides for enforcement of a contract by a third party beneficiary to

the contract, as discussed above. A rule allowing a third party to bring a claim based on the

detrimental reliance of the original promisee merely allows an analogous mode of recovery for claims

of promissory estoppel. Significantly, for purposes of foreseeability and the ability to recover, the

comment to section 90 of the Restatement distinguishes recovery by a third party beneficiary from

that by a third party non-beneficiary, which is “less likely.” Id. This distinction appears to

incorporate, at least in part, the contractual third party beneficiary doctrine into the promissory

estoppel realm. Because Mrs. Green has introduced facts showing that she was an intended third

party beneficiary of Jackson National’s promise, we hold that pursuant to our “Erie guess,” she can

bring a claim of promissory estoppel based on her husband’s reliance, as well as her own.

       In short, Mrs. Green introduced evidence that Jackson National made a promise to her

husband in the November 15 letter to pay her the proceeds of his insurance policy, and that both she

and her husband relied on it to their detriment, in her case by incurring substantial debt, and in his

case by not formally re-designating her as beneficiary. Also, a fact-finder could determine that

Jackson National should have reasonably expected that its letter indicating Mrs. Green was the

beneficiary would have caused such reliance. On remand, Mrs. Green can choose to proceed with
No. 05-3791
Green v. Jackson National Life Ins. Co.
Page 17

her promissory estoppel claim based on both her reliance and that of her husband.

                                                 III.

          We affirm the magistrate’s holding that Jackson National did not waive the change of

beneficiary provision of its insurance policy, but reverse the entry of summary judgment on Mrs.

Green’s claim to enforce the policy as a third party beneficiary and her claim of promissory estoppel.

The magistrate’s dismissal of the case is thus reversed, and the case is remanded for a trial on the

merits.
