                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   October 13, 2011
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    IRVING H. BLUMENTHAL, JR.,
    individually and on behalf of all
    similarly situated insured of New York
    Life Insurance and Annuity
    Corporation,                                         No. 10-6246
                                                  (D.C. No. 5:08-CV-00456-F)
                Plaintiff-Appellant,                     (W.D. Okla.)

    v.

    NEW YORK LIFE INSURANCE
    AND ANNUITY CORPORATION,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


         Irving H. Blumenthal, Jr. appeals from the district court’s grant of summary

judgment to New York Life Insurance and Annuity Corporation (NYLIAC) in this

suit concerning a universal life insurance policy that NYLIAC sold to



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Blumenthal in 1999. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                     Background

      NYLIAC issued to Mr. Blumenthal a universal life insurance policy dated

June 12, 1999, that provided a death benefit of $1,000,000. The policy had a

maturity date of June 12, 2032, and called for monthly premium payments of

$4,420.50. But $4,420.50 per month was not enough to keep the policy in force

through its maturity date. Without additional premium payments, the policy’s

cash value and death benefit would lapse at some point; exactly when depended

on the credited interest rate and costs. Mr. Blumenthal asserted that he did not

learn these critical facts until November 2006, when NYLIAC provided him with

an illustration showing that the policy’s cash value and death benefit would be

zero as early as year 13 or as late as year 17 of the policy. After receiving this

information, he cancelled the policy.

      In April 2008, Mr. Blumenthal filed suit against NYLIAC for fraud and

misrepresentation, breach of contract, unjust enrichment, and recission. The

district court granted NYLIAC’s motion for summary judgment on the ground

that each claim was barred by the applicable Oklahoma statutes of limitation. The

court concluded that certain written materials provided to Mr. Blumenthal in

connection with the issuance of the policy were sufficient to put him on notice of




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the basis of his claims in 1999, making his 2008 suit untimely. Mr. Blumenthal

appeals.

                                      Analysis

      We review the district court’s grant of summary judgment de novo. See

Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004); see also Wright v.

Sw. Bell Tel. Co., 925 F.2d 1288, 1290 (10th Cir. 1991) (“We review a district

court’s ruling on the applicability of a statute of limitations de novo.”). “The

court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “[I]f the statute of limitations depends on

disputed [material] facts, then summary judgment is inappropriate.” Wolf v.

Preferred Risk Life Ins. Co., 728 F.2d 1304, 1306 (10th Cir. 1984).

      Having considered the briefs and the record, we conclude that the district

court did not err in determining that Mr. Blumenthal should have been on notice

of the basis of his claims long before November 2006. It is undisputed that in

July 1999, Mr. Blumenthal was provided pages 5 and 6 of a certain policy

illustration. The information set forth in those pages would put a reasonable

person on notice that the anticipated premiums might be insufficient to maintain

the policy until its maturity date, and that the policy coverage could end as early

as year 6. Mr. Blumenthal admitted that he never would have bought the policy if

he had read this information when it was provided to him. Accordingly, for

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substantially the same reasons stated by the district court in its Order filed on

September 27, 2010, the judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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