UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
Plaintiff-Appellee,
                                                                      No. 95-2725
v.

MASSOUD HEIDARY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-94-2944-AW)

Argued: June 5, 1996

Decided: August 20, 1996

Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.

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Affirmed by unpublished per curiam opinion. Judge Hall wrote a dis-
senting opinion.

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COUNSEL

ARGUED: Michael Joseph McAuliffe, QUINN, MCAULIFFE &
DUMAIS, Rockville, Maryland, for Appellant. Nell Berelson Stra-
chan, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Mary-
land, 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Unpublished opinions are not binding precedent in this circuit.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:

I.

On October 25, 1994, Appellee Massachusetts Mutual Life Insur-
ance Company ("MassMutual") filed a declaratory judgment action in
the United States District Court for the District of Maryland against
Appellant Massoud Heidary. MassMutual sought a declaration that
Heidary had made material misrepresentations to the company when
he applied for disability insurance, that Heidary had released the com-
pany from all obligations under the disability policy on October 15,
1991, and that Heidary was accordingly not entitled to benefits under
the policy.

In support of its claim for declaratory relief, MassMutual made the
following allegations. Heidary applied to the company for disability
insurance on April 4, 1990. MassMutual issued a disability policy,
numbered 9-391-944, to Heidary on April 26, 1990. 1 On July 30,
1991, following an automobile accident, Heidary filed a claim for
benefits. Upon investigating the claim, MassMutual discovered that
Heidary had made material misrepresentations in his initial applica-
tion for insurance: contrary to his claim to be a company president
with managerial responsibilities, he spent at least half his time work-
ing as an electrician; contrary to his claim to have no known disorder
of the joints and bones, he had suffered since childhood from a defor-
mity caused by a broken arm; and contrary to his claim to have an
annual income of $65,000, he earned $24,000 in 1990.

MassMutual further alleged that company officials then met with
Heidary at the Dulles Airport on October 15, 1991. MassMutual
_________________________________________________________________
1 A copy of the policy filed with this court indicates that the policy
became effective on April 12, 1990.

                    2
stated that, at that time, Heidary accepted (and later cashed) a check
representing reimbursement for all of the premiums he had paid, plus
interest, and signed a release form discharging the company from all
liability under the disability policy. Two years later, in December
1993, Heidary contacted MassMutual seeking benefits under the dis-
ability policy. MassMutual refused to pay.

In his answer to MassMutual's complaint, and in a subsequent
attempt to prove the existence of genuine issues of material fact, Hei-
dary asserted that, in a single application, he had applied for both life
insurance and disability insurance. Heidary also stated that his native
language was Farsi, suggesting that he could not easily read the
release form. He denied making material misrepresentations in his
application and stated that he believed both that the release form he
signed in October 1991 concerned a life insurance policy, rather than
a disability policy, and that the check he received and cashed repre-
sented both a refund of life insurance premiums and the first install-
ment of benefits under the disability policy.2

On August 11, 1995, the district court granted MassMutual's
motion for summary judgment. The court observed that, under Mary-
land law, "absent fraud, duress or mutual mistake, . . . one having the
capacity to understand a written document who reads and signs it, or,
without reading it or having it read to him, signs it, is bound by his
signature." Ray v. William G. Eurice & Bros. , 93 A.2d 272, 278 (Md.
1952); accord Creamer v. Helferstay, 448 A.2d 332, 339-42 (Md.
1982) (reaffirming the rule articulated in Ray and stating that, "absent
intentional, culpable conduct, such as fraud, duress or undue influ-
ence, a unilateral mistake is ordinarily not a ground for relief from a
contract"). Finding no evidence which could lead a rational juror to
conclude that fraud, duress, or a mutual mistake had occurred, the dis-
_________________________________________________________________
2 Heidary also asserted three counterclaims against MassMutual: that
the company had breached its insurance contract by refusing to pay dis-
ability benefits, had committed constructive fraud by failing to investi-
gate his application for insurance at the time it was made, and had
negligently misrepresented that the application was acceptable. On April
5, 1995, the district court severed Heidary's counterclaims from the
declaratory judgment action. Upon granting MassMutual's motion for
summary judgment, the court found Heidary's counterclaims moot.

                     3
trict court ruled that Heidary was bound by the terms of the release
form he signed in October 1991.

Heidary has argued that the district court erred when it granted
MassMutual's summary judgment motion.

The district court's grant of summary judgment must be reviewed
de novo. Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992),
cert. denied, 507 U.S. 918 (1993). The party moving for summary
judgment has "the burden of showing the absence of a genuine issue
as to any material fact." Adickes v. S. H. Kress & Co., 398 U.S. 144,
157 (1970). The underlying facts and all inferences from those facts
"must be viewed in the light most favorable to the party opposing the
motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
"[T]here is no issue for trial unless there is sufficient evidence favor-
ing the nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); accord
Russell v. Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir. 1995)
("Summary judgment is . . . appropriate where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party."). "If the evidence [presented by the nonmoving party] is
merely colorable, or is not significantly probative, summary judgment
may be granted." Id. at 249-50 (citations omitted); see also Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (stating
that trial judges have an "affirmative obligation" to prevent factually
unsupported claims from going to trial).

II.

Heidary bases his allegation of error upon the following factual
assertions. First, he does not read or speak English well; his native
language is Farsi. Second, using a single insurance application form,
he believed he had applied for both life insurance and disability insur-
ance. Third, Mohamed Reza Vaziri--a MassMutual agent who speaks
Farsi--was one of two MassMutual agents present at the October
1991 meeting and told Heidary, in Farsi, that (1) the check being
offered by the other MassMutual agent represented the first install-
ment of disability benefits and (2) the release form concerned only a
life insurance contract. Fourth, given the release form's use of the
phrase "on the life of Massoud Heidary" and the absence of any use

                     4
of the word "disability" in the release, he believed that the release was
effective with respect only to a life insurance policy.

Even though Vaziri has denied making the statements attributed to
him by Heidary, our duty to view the evidence in the light most favor-
able to Heidary compels us to proceed under the assumption that Hei-
dary's account of Vaziri's statements is accurate. We nevertheless
conclude that, on the basis of the evidence before us, no reasonable
trier of fact could return a verdict in favor of Heidary and that the dis-
trict court therefore did not err when it granted MassMutual's motion
for summary judgment. We reach that conclusion for the following
reasons.

First, no reasonable trier of fact could conclude that Heidary
applied--or reasonably believed he had applied--to MassMutual for
life insurance. Appearing at the top of the first page of the insurance
application submitted by Heidary were several boxes by which the
applicant was to indicate, with a check mark, the type of insurance he
wished to obtain or the means by which he wished to obtain it: "New
Life Insurance," "New Disability Insurance," "New Policy as
Exchange of Term Insurance," or "Conversion of Term or Disability
Insurance." On Heidary's application, only one box was checked--
the box next to the phrase "New Disability Insurance." The box next
to the phrase "New Life Insurance" was left blank. The one-and-one-
half-page section of the application titled "Life Insurance Data,"
beginning on the first page of the application, was left blank. The one-
and-one-half-page section titled "Disability Insurance Data" was fully
completed. While a number of questions appearing under the heading
"Complete for Life Application Only" were completed, those ques-
tions appeared as part of the "Agent's Statement," which was signed
only by the issuing agent.

Second, the insurance policy issued in response to Heidary's appli-
cation bears the title, on the first page of the policy, "Disability
Income Policy: Benefits Payable For Loss Of Earned Income." The
terms of the policy similarly unambiguously indicate that the policy
was a disability insurance policy, not a life insurance policy.3
_________________________________________________________________
3 Heidary has stated that he does not recall ever receiving a copy of the
policy and that he therefore had no means by which to determine the pol-

                     5
Third, if Heidary believed he could not read the release form he
signed in October 1991, he could have asked Vaziri or the other
MassMutual agent to read it to him. See Ray, 93 A.2d at 278 (stating
that a person with the capacity to understand a document is bound by
his signature on it even if he did not read it or"hav[e] it read to him").

Fourth, the release form Heidary signed clearly referred to the dis-
ability insurance policy by using the policy number. The form stated,
in pertinent part:

          IN CONSIDERATION OF the payment of $4,185.43, repre-
          senting a refund of premium plus interest under Policy No.
          9 391 944 issued by Massachusetts Mutual Life Insurance
          Company of Springfield, Massachusetts, on the life of Mas-
          soud Heidary, the undersigned hereby delivers said policy to
          said company for cancellation and hereby releases and for-
          ever discharges said Company of and from all manner of
          claims . . . which she/he ever had . . . by reason of the issu-
          ance of said policy of insurance . . . .

It is true that the release makes reference to a policy "on the life of
Massoud Heidary." MassMutual argues that those words do not sug-
gest that a life insurance policy was being rescinded, but instead
"properly manifest a reference [to] Heidary as the life in being to
which the document applies." We find the release's language, in
solely that respect, ambiguous: a rational trier of fact could easily
conclude that a reader of only that portion of the document would
believe that it was a life insurance policy that was being cancelled. As
MassMutual points out, though, the release makes clear reference to
the number of the disability insurance policy. In light of that fact,
together with the fact that Heidary applied for and was issued only a
disability insurance policy and that the release form makes reference
to a refund of premiums plus interest--thereby disallowing the infer-
ence that the check offered to and accepted by Heidary represented
the first installment of disability benefits--we find (1) that no reason-
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icy's nature. Even if that is true--and we must assume that it is--it is not
a factual allegation tending to show fraud, duress, or mutual mistake, and
therefore does not enable Heidary to escape from the terms of the release
form he signed in October 1991. See Ray, 93 A.2d at 278.

                     6
able trier of fact could conclude that the release form was fatally
ambiguous and (2) that no reasonable trier of fact could conclude that
Heidary was not bound by his signature on the form due to fraud,
duress, or mutual mistake. See Ray, 93 A.2d at 278; Creamer, 448
A.2d at 339-42.

For the foregoing reasons,4 the judgment of the district court is

AFFIRMED.

HALL, Circuit Judge, dissenting:

The release form is not clear on its face; even the majority has to
concede that the form's reference to "Policy No. 9 391 944 . . . on the
life of Massoud Heidary" could have led someone reading that por-
tion of the form to "believe that it was a life insurance policy that was
being cancelled." Ante, at 6.1 The majority's decision rests completely
_________________________________________________________________
4 Though we have not relied upon the observation in reaching our con-
clusion, it might also be noted that, during oral arguments, counsel for
MassMutual stated that, "to the penny," the amount of premiums
refunded to Heidary corresponded to the cost of obtaining disability
insurance during the period in question.
1 The other portions of the form on which the majority relies -- the
number of the disability policy and the reference to a refund of premiums
(see majority op. at 6) -- lend scant support to its decision. The inclusion
of the "Policy No." -- not, by the way,"Disability Policy No." -- is vir-
tually irrelevant; few persons have committed to memory even a snippet
of what may be numerous insurance policy numbers, (e.g., auto, home-
owner's, health and hospitalization, life, disability). When we factor in
Heidary's allegation that he never received a copy of the policy (a fact
that we assume to be true, see id. at 5-6 n.3), the relevance of the policy
number in the release form approaches zero.

Similarly, the reference to "a refund of premiums" is hardly supportive
of MassMutual's position. The refund language is consistent with Hei-
dary's claim that he was told that part of the amount was indeed a refund
of the premiums under the policy "on the life of" Heidary. That the form
said "refund," but (according to Heidary) included disability benefits as
well, is no more a basis for summary judgment for the company as the
inclusion of the words "on the life of" is a basis for summary judgment
for Heidary. See King v. Bankerd, 492 A.2d 608, 612 (Md. 1985)
(ambiguities in contract are resolved against the drafter). The release
form simply does not, by itself, mandate judgment against Heidary at this
point.

                    7
on its conclusion that no trier of fact could find that Heidary "reason-
ably believed he had applied" for a life insurance policy in addition
to the disability policy. Id. at 5. This conclusion is reached after an
examination of the policy application itself, without recourse to any
other evidence. My examination of the same document, together with
the other evidence (all viewed in the light most favorable to Heidary),
leads me to conclude that Heidary's belief was not so unreasonable
as to preclude a finding of fraud.

The question is not whether Heidary had an enforceable agreement
for life insurance coverage, but, rather, whether his alleged misappre-
hension of fact -- that he had such a policy -- was so unreasonable
as to bar his claim of fraud. In evaluating the reasonableness of the
belief, it must be borne in mind that he is also alleging that the agent
exploited his misapprehension by explaining that only a life insurance
policy was being affected by the form.

The application was filled out by the agent and signed by Heidary
in two places. On the seventh page is an "Agent's Statement." Under
section 4, headed in bold type "Complete for Life Application Only,"
Heidary's income is listed, and two other lines (unearned income and
spouse's income) are crossed through to indicate that they are not
applicable. Section 5, "Marital Status," has been completed, as has
section 8, which asks about other policies "on the life of the Insured."
While the form alone certainly could not establish a claim for life
insurance benefits, it also is not so clear as to preclude, as a matter
of law, Heidary's fraud claims regarding the release form. I believe
that a jury could find that Heidary's belief that he had applied for two
policies was not unreasonable.

Once this hurdle is crossed, it is a small step to conclude that a jury
could also find that Heidary reasonably thought he was rescinding the
policy "on [his] life" in return for life insurance premiums to date and
a partial payment on his disability claim.2 When all the evidence is
_________________________________________________________________
2 The majority posits two other bases for affirmance. One basis, that the
policy itself was clearly a disability policy only (ante, at 5), is irrelevant
in light of Heidary's allegation (which the majority concedes must be
believed at this point in the litigation, id. at n.3) that he never received
a copy of the policy.

                    8
taken into account -- a hurried meeting at the airport on the heels of
Heidary's initial claim; his reluctance to sign an ambiguous release
form until a fellow speaker of Farsi explained the necessity of his sig-
nature to get his disability benefits; his limited grasp of English, par-
ticularly written English; prompt and repeated attempts to discover
why he was not getting continued benefits3 -- I believe there remain
genuine issues of material fact that merit further consideration.
Accordingly, I would vacate the judgment and remand for further pro-
ceedings.

I respectfully dissent.
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The other basis, that Heidary could have asked one of the agents to
read the release to him (id. at 6), ignores the essence of Heidary's fraud
claim. He asserts that he asked for an explanation of the form and that
he was told that it was merely a rescission of his life insurance policy and
a prerequisite for the initial payment of disability benefits. That he did
not have it read to him word for word is hardly a basis for summary
judgment for the insurance company.

3 When disability benefits did not follow, Heidary claims that, after
repeated telephone calls to MassMutual, he finally received a letter from
the company explaining what had happened. A friend wrote a letter for
him that began: "After some two years of telephone requests, thank you
for finally clearifying [sic] the reason that Mass Mutual cancelled my
disability policy"; the letter then recounted the same story that forms the
basis of his fraud claims.




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