                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 THOMAS KEVIN JENKINS,

                        Plaintiff,                   Civil Action No. 14-1714 (BAH)
                v.

 SEARS LIFE INSURANCE COMPANY,

                        Defendant.


                                     MEMORANDUM OPINION

       Thomas Kevin Jenkins (“the plaintiff”), a resident of Washington, D.C. who is

proceeding pro se, filed this action against Sears Life Insurance Company (“SLIC”), a resident of

Texas. The plaintiff alleged, inter alia, that SLIC breached a contract and engaged in fraud by

denying payment of life insurance proceeds to the plaintiff upon the death of his father, the

insured. Following a period of nearly ten months for discovery, SLIC has moved for summary

judgment. For the reasons discussed below, this motion will be granted.

       “Luther H. Jenkins . . . purchased accidental death coverage from SLIC, as reflected in

Certificate of Accidental Death Insurance No. 958163361 (the ‘Certificate’).” Mem. of P. & A.

in Support of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Decl. of Autumn Wilkins (“Wilkins

Decl.”) ¶ 4. The Certificate became effective on February 13, 2007, and offered the following

benefits:

               The Certificate provided a limited 3-tier death benefit based on the
               Insured’s cause of death, if an insured person dies directly as the
               result of an accident within the scope of the Certificate’s coverage.
               For accidents not involving a common carrier or passenger vehicle,
               the accidental death benefit was $50,000. In any event, the coverage
               is limited to Accidental Death, which is defined as death resulting

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               directly from bodily injury effected solely through external, violent
               and external means . . . . [I]n the Exclusions section, the Certificate
               expressly provides that it does not cover Loss caused directly by
               disease[] or bodily or mental infirmity.
Wilkins Decl. ¶ 5 (internal citations and quotation marks omitted). Mr. Jenkins named his wife,

Elizabeth Jenkins, the primary beneficiary; he did not name a contingent beneficiary. Id. ¶¶ 7, 9,

17; see id., Ex. B (Application for Beneficiary Change). If Mrs. Jenkins were not living at the

time of Mr. Jenkins’ death, any benefits would have been paid to Mr. Jenkins’ estate. Id. ¶ 11;

see id., Ex. D (Letter to Luther H. Jenkins from Policy Administration, SLIC, dated October 15,

2009). Mr. Jenkins died on December 8, 2013, and the causes of his death were

cardiopulmonary arrest, aspiration and coronary artery disease. Id. ¶ 13; see id., Ex. E

(Certification of Vital Record, State of South Carolina, issued January 30, 2014).

       The plaintiff, who is Mr. Jenkins’ son, was not a beneficiary on the Certificate. Id. ¶ 17.

Nevertheless, the plaintiff submitted to SLIC a claim for benefits in or about May 2014. Id.; see

id. Ex. F (Accidental Death Claim Form). SLIC denied the claim, explaining:

               The [C]ertificate under which [Mr. Jenkins] is insured provides an
               accidental death benefit provided death occurs as a direct result of
               an accidental injury and death occurs within 365 days of the covered
               accident causing the injury. The information received to date, the
               Death Certificate, indicates [Mr. Jenkins’] death was not the direct
               result of an injury[] resulting from a covered accident.
               For these and other reasons, none of which are waived, there is no
               basis to pay this claim . . . .
Id., Ex. G (Letter to plaintiff from Claim Department, SLIC, dated May 22, 2014). The plaintiff

had an opportunity to submit more information in support of his claim, but he “never provided to

SLIC any additional documents during the claim adjustment [period] or after the claim was

denied that advised SLIC that [Mr. Jenkins’] cause of death was from anything other than

cardiopulmonary arrest, aspiration [and] coronary artery disease as shown on the Death

Certificate.” Id. ¶ 20 (internal quotation marks omitted).


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       On October 2, 2015, SLIC filed the pending motion for summary judgment. Def.’s Mot.

for Summ. J., ECF No. 8. On October 5, 2015, the Court issued an Order advising the plaintiff

of his obligations under the Federal Rules of Civil Procedure and the local rules of this Court to

respond to the motion, and specifically warned the plaintiff that, if he did not respond to the

motion by November 5, 2015, the Court would treat the motion as conceded. Order, ECF No. 9.

Despite the opportunity provided to the plaintiff “to properly address [SLIC’s] assertion[s] of

fact,” Fed. R. Civ. P. 59(e), to date, the plaintiff has not filed an opposition to the motion,

requested more time to file his opposition, or advised the Court of any change of address.

Consequently, for purposes of this Memorandum Opinion, the above facts are deemed admitted.

See Fed. R. Civ. P. 56(e)(2) (authorizing court, when non-moving party “fails to properly address

another party’s assertion of fact as required by Rule 56(c),” to “consider the fact undisputed for

purposes of the motion”); Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015)

(noting that plaintiff has “burden to identify evidence that a reasonable jury could credit in

support of each essential element of [his] claims” and “cannot rely on the allegations of [his]

own complaint in response to a summary judgment motion, but must substantiate them with

evidence”); LCvR 7(h)(1) (“In determining a motion for summary judgment, the court may

assume that facts identified by the moving party in its statement of material facts are admitted,

unless such a fact is controverted in the statement of genuine issues.”).

       When, as here, the plaintiff fails to respond to a motion for summary judgment, “[a]

defendant moving for summary judgment must still ‘discharge the burden the rules place upon

him: It is not enough to move for summary judgment without supporting the motion in any way

or with a conclusory assertion that the plaintiff has no evidence to prove his case.’” Grimes, 794

F.3d at 93 (quoting Celotex Corp. v. Catrett Corp., 477 U.S. 317, 328 (1986) (White, J.,



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concurring). “The burden that the movant ‘always bears’ is that of ‘informing the district court

of the basis for its motion, and identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.’” Id. at 93-94 (quoting Celotex, 477

U.S. at 323); see Alexander v. FBI, 691 F. Supp. 2d 182, 193 (D.D.C. 2010) (“[E]ven where a

summary judgment motion is unopposed, it is only properly granted when the movant has met its

burden.”). Here, SLIC has met its burden.

       The plaintiff alleges that SLIC wrongfully denied his claim for benefits following Mr.

Jenkins’ death. See Compl. at 5. As SLIC points out, see Def.’s Mem. at 2-4, the plaintiff lacks

standing to bring his claim because he is not a beneficiary to the Certificate, see Gavin v.

Prudential Office of Servicemen’s Group Life Ins. Co., 72 F. Supp. 3d 332, 336-37 (D.D.C.

2014), appeal docketed, No. 15-7007 (D.C. Cir. Jan. 20, 2015). Even if the plaintiff had

standing to bring his claim, Mr. Jenkins’ cause of death is not the direct result of a bodily injury

sustained through external, violent and external means, and therefore his death was not

accidental for purposes of the Certificate. See Haley v. Am. Int’l Life Assurance Co. of New

York, 789 F. Supp. 260, 264 (E.D. Ill. 1992); cf. New York Life Ins. Co. v. Gamer, 303 U.S. 161,

176 (1938) (“Proof of death by external and violent means has uniformly been held to establish

death by accident.”).

       SLIC has demonstrated that there are no genuine issues of material fact in dispute and

that it is entitled to judgment as a matter of law. Therefore, the Court will grant summary

judgment in SLIC’s favor. An Order is issued separately.




DATE: November 25, 2015                                          /s/   Beryl A. Howell
                                                              BERYL A. HOWELL
                                                              United States District Judge

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