                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-1088


IVAN GOLDSTEIN,

                  Plaintiff - Appellant,

          v.

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,

                  Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:09-cv-00706-WMN)


Submitted:   June 17, 2011                    Decided:    July 26, 2011


Before DAVIS and      DIAZ,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


David Rodman Cohan, Russell D. Karpook, COHAN, WEST & KARPOOK,
P.C., Baltimore, Maryland, for Appellant.      Bryan D. Bolton,
Michael P. Cunningham, FUNK & BOLTON, P.A., Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           This is a dispute regarding the cancellation of Ivan

Goldstein’s life insurance policy (the Policy), issued by The

Lincoln National Life Insurance Company.                      On appeal, Goldstein

challenges the district court’s granting of Lincoln National’s

motion for summary judgment with respect to his two alternative

breach of contract claims under Maryland common law.                            In the

first claim, Goldstein alleges that Lincoln National wrongfully

cancelled the Policy, because he never received the grace period

notice    required     under     the   Policy          prior       to   the   Policy’s

cancellation.      In his alternative claim, Goldstein alleges that,

assuming arguendo      Lincoln      National       legitimately         cancelled     the

Policy,   Lincoln     National      wrongfully        failed       to   reinstate     the

Policy,   despite     his    compliance        with     the    Policy’s       terms   of

reinstatement.       We affirm in part, vacate in part, and remand

for further proceedings.

           With    respect     to   Goldstein’s         first      claim,     Goldstein

contends the district court erred in holding that he had failed

to   proffer   sufficient      evidence       to   create      a   genuine    issue    of

material fact, regarding whether he actually received the grace

period notice to which he was entitled under the terms of the

Policy,   before     Lincoln    National       could    effectively         cancel    the

Policy.   We agree.      The summary judgment record establishes that

Lincoln National produced sufficient evidence under Maryland law

                                          2
to raise a rebuttable presumption that it mailed and Goldstein

timely received the grace period notice at issue.                              See Benner,

M.D. v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir.

1996) (under Maryland law, rebuttable presumption of delivery

and receipt of mail arises when material is properly mailed);

id.    (“Evidence    of     ordinary      business       practices      concerning         the

mailing of notices is sufficient to create the presumption of

both sending and receiving.”).                   However, the summary judgment

record    also    establishes        that    Goldstein          proffered       sufficient

evidence    to   create      a    genuine       issue    of     material    fact      as   to

whether    he     received         the    grace        period     notice       at     issue.

Specifically,       Goldstein        proffered         his    own      sworn     affidavit

stating that he never received the grace period notice at issue

despite the fact that he was in town on or around the time when

such   notice    should     have     arrived      in    his     home   mailbox      and    he

retrieved the mail from such mailbox every day.                          See Border v.

Grooms, 297 A.2d 81, 83 (Md. 1972) (unequivocal testimony of

zoning board’s attorney that he did not receive mailed copy of

petition of appeal did not conclusively rebut the rebuttable

presumption of its receipt created by evidence that petition of

appeal    was    properly        mailed    to    him;     rather,       such     testimony

created issue for trier of fact); 2 Clifford S. Fishman and Anne

T. McKenna, Jones on Evidence § 10:3 (7th ed. 1994 & Supp. 2011)

(addressee’s        sworn        denial     of    receipt        suffices        to     meet

                                            3
addressee’s burden to produce evidence to avoid directed verdict

on the issue of receipt in the face of rebuttable presumption of

correct delivery and receipt, provided denial is sufficiently

unequivocal).             Because Goldstein proffered sufficient evidence

to create a genuine issue of material fact regarding whether he

actually      received       the    grace    period      notice       to    which       he    was

entitled under the terms of the Policy before Lincoln National

could    effectively         cancel    the   Policy,      we     vacate         the    district

court’s      entry    of    judgment    in     favor     of    Lincoln      National         with

respect      to     his    wrongful    cancellation           claim     and      remand      for

further proceedings.

              With        respect     to     Goldstein’s          alternative             claim

pertaining to reinstatement, we have reviewed the record and

find    no    reversible       error.        Accordingly,         we       affirm       on    the

reasoning      of    the    district    court     with        respect      to    that    claim.

Goldstein v. The Lincoln Nat’l Life Ins. Co., 1:09-cv-00706-WMN,

2011 WL 13864 (D.Md. Jan. 4, 2011).

              We dispense with oral argument because the facts and

legal    contentions         are    adequately     presented          in    the       materials

before    the     court      and    argument     would    not     aid      the    decisional

process.



                           AFFIRMED IN PART, VACATED IN PART, AND REMANDED



                                             4
