UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACQUELINE RAINES DUNLAP,
Administratrix of the estate of
MACEO RAINES MCEACHERN and
VELA RAINES MCEACHERN,
Plaintiff-Appellant,
                                                                    No. 95-1942
v.

THE GREAT-WEST LIFE ASSURANCE
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Rockingham.
N. Carlton Tilley, Jr., District Judge.
(CA-93-225)

Argued: February 1, 1996

Decided: April 2, 1996

Before HALL and ERVIN, Circuit Judges, and BLAKE,
United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Gary Buckner, SHARPE & BUCKNER, Rock-
ingham, North Carolina, for Appellant. George Kimmons Evans, Jr.,
CANSLER, LOCKHART, CAMPBELL, EVANS & GARLITZ,
P.A., Charlotte, North Carolina, for Appellee. ON BRIEF:
R. Michael Allen, CANSLER, LOCKHART, CAMPBELL, EVANS
& GARLITZ, P.A., Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jacqueline Raines Dunlap, administratrix of the estates of Maceo
Raines McEachern and his mother Vela Raines McEachern, appeals
from the order of the district court granting summary judgment in
favor of the Great-West Life Assurance Company on Dunlap's claim
that the Company negligently issued an insurance policy in an exces-
sive amount on the life of Maceo McEachern and thereby caused the
murder of both McEacherns. For the reasons that follow, we affirm
the decision of the district court.

I.

We review the grant of summary judgment de novo . Cooke v. Man-
ufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). "Sum-
mary judgment is justified if, from the totality of the evidence
presented, including pleadings, depositions, answers to interrogato-
ries, and affidavits, the court is satisfied that there is no genuine fac-
tual issue for trial and the moving party is entitled to judgment as a
matter of law." Sylvia Development Corp. v. Calvert County, 48 F.3d
810, 817 (4th Cir. 1995); see Fed. R. Civ. P. 56(c). While the court
must "draw any permissible inference from the underlying facts in the
light most favorable to the party opposing the motion," Sylvia
Development, 48 F.3d at 817 (internal quotations and citations omit-
ted), "the non-moving party must do more than present a `scintilla' of
evidence in its favor. . . . [It] must present sufficient evidence . . . that

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`reasonable jurors could find by a preponderance of the evidence' for
the non movant. . . . [I]f the evidence is`merely colorable' or `not sig-
nificantly probative,' a motion for summary judgment may be
granted." Id. at 818 (citations omitted).

II.

This is a diversity case governed by the law of North Carolina. The
insurance involved was a "key-man" policy issued on the life of Mr.
McEachern pursuant to his purchase of the rights to a sports drink cal-
led Pro-Formance from Gymbags, a company owned by Joey Cald-
well and his wife Barbara. The purchase was to take place over three
years and included royalty payments to Gymbags. The letter purchase
agreement between Mr. McEachern and Gymbags contained a clause
in which McEachern acknowledged that Gymbags intended to obtain
an insurance policy on McEachern's life for the benefit of Gymbags
in an amount of "not less than $1,000,000." J.A. at 81.1

Randy Riggins, an insurance agent formerly married to Barbara
Caldwell, in fact obtained two policies on McEachern's life, one in
the amount of $1,500,000 from Sun Life Assurance Company2 and
one in the amount of $500,000 from Great-Western. A short time later
the McEacherns were murdered.3 Great-West paid the proceeds of the
policy to Gymbags. Eventually, however, Joey and Barbara Caldwell
were prosecuted and convicted for the two murders. This lawsuit fol-
lowed.

In granting Great-West's motion for summary judgment, the dis-
trict court examined the law of North Carolina and persuasive author-
ity from other States and concluded:
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1 Perhaps due to typographical error, the district court opinion cites this
at one point as an amount "not to exceed $1,000,000." J.A. at 63.

2 Sun Life was sued separately and apparently settled its case. Brief of
Appellee at 2.

3 It appears that Mrs. McEachern was killed only because she happened
to be with her son when he was shot.

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          From these cases, it appears that a claim of negligent policy
          issuance will arise where 1) the beneficiary has no insurable
          interest in the life of the insured, . . . 2) the insurance com-
          pany had actual knowledge of a plan to murder the insured
          for the proceeds, or 3) the insured did not consent to the pol-
          icy and the insurance company had actual knowledge that
          the signature of the insured had been forged. Plaintiff has
          not asserted that Great-West had actual knowledge of the
          Caldwell's [sic] plans to murder Mr. McEachern. Similarly,
          Plaintiff acknowledges that none of Mr. McEachern's signa-
          tures to the applications, medical authorization forms, or the
          February 1 letter agreement authorizing Gymbags' obtaining
          life insurance on his life, were forged. The only theory
          remaining to Plaintiff is that Gymbags did not have an insur-
          able interest in the life of Mr. McEachern.

J.A. at 60. Like the district court, we do not reach the question
whether, in some circumstances, the amount of a requested life insur-
ance policy could so greatly exceed any reasonable insurable interest
as to put the company on notice that "a murderous plot was afoot."
J.A. at 63. In light of the contract for the purchase of the rights to Pro-
Formance, however, it cannot seriously be disputed that Gymbags had
a substantial insurable interest in the life of Mr. McEachern. Having
carefully reviewed the record and considered counsels' briefs and oral
arguments, we affirm on the reasoning set forth in the opinion of the
district court.

AFFIRMED

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