17-1439-cv
Clark v. Companion Life Insurance


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
28th day of February, two thousand eighteen.

PRESENT:
            DEBRA ANN LIVINGSTON,
            GUIDO CALABRESI,
                  Circuit Judges,
            EDGARDO RAMOS,
                  District Judge.*
_____________________________________

ESTATE OF LARRY W. CLARK, KIM O. CLARK,

                           Plaintiffs-Appellants,

                  v.                                                       17-1439-cv

COMPANION LIFE INSURANCE COMPANY, a wholly
owned subsidiary of Mutual of Omaha Insurance
Company,

                  Defendant-Appellee.
_____________________________________

For Plaintiffs-Appellants:                          ZACHARY M. MATTISON (Kevin R. Van
                                                    Duser, on the brief), Sugarman Law Firm,
                                                    LLP, Syracuse, New York.


* Judge Edgardo Ramos, of the United States District Court for the Southern District of New York,
sitting by designation.
For Defendant-Appellee:                              FALLYN B. CAVALIERI, Gerber Ciano Kelly
                                                     Brady LLP, New York, New York.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Sannes, J.) entered March 28, 2017.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs-Appellants Estate of Larry W. Clark and Kim O. Clark (collectively, the

“Clarks”) appeal from a March 28, 2017 judgment of the United States District Court for the

Northern District of New York granting Defendant-Appellee Companion Life Insurance

Company’s (“Companion”) motion for summary judgment and denying the Clarks’ motion for

summary judgment. The Clarks’ claims arise out of a life insurance contract sold by Companion

to Kim O. Clark’s (“Ms. Clark”) late husband, Larry W. Clark (“Mr. Clark”), which named Ms.

Clark as the contract’s beneficiary. On appeal, the Clarks seek to collect on the contract’s

$250,000 death benefit and Companion counters that the Clarks’ breach of contract claim must

fail because the policy lapsed and was no longer in force at the time of Mr. Clark’s death. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       We review de novo a district court’s grant of summary judgment, “construing all the

evidence in the light most favorable to the non-movant and drawing all reasonable inferences in

that party’s favor.” McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009).

We affirm only where “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). “The non-moving party may not rely on

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conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d

Cir. 1998) (citation omitted). “Where, as here, there are cross-motions for summary judgment,

‘each party’s motion must be examined on its own merits, and in each case all reasonable

inferences must be drawn against the party whose motion is under consideration.’” Lumbermens

Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010) (quoting Morales

v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).

       The life insurance policy was executed in New York and the parties agree that New York

law governs this diversity contract dispute. “In New York, if a contract is straightforward and

unambiguous, its interpretation presents a question of law for the court to be made without resort

to extrinsic evidence.” Postlewaite v. McGraw-Hill, Inc., 411 F.3d 63, 67 (2d Cir. 2005) (citation

and internal quotation marks omitted)). “Language whose meaning is otherwise plain does not

become ambiguous merely because the parties urge different interpretations in the litigation.”

Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir. 1989). There is no

ambiguity where one party’s proffered interpretation “would ‘strain[] the contract language

beyond its reasonable and ordinary meaning.’” Id. (quoting Bethlehem Steel Co. v. Turner

Constr. Co., 2 N.Y.2d 456, 459 (1957)).

       Upon review, we conclude that the district court properly granted Companion’s motion for

summary judgment. We affirm for substantially the reasons stated in the district court’s thorough

and well-reasoned March 27, 2017 memorandum-decision and order. In particular, we discern

no error in the district court’s determinations that the Clarks “failed to raise an issue of fact to

show ‘it was not reasonably possible [for Mr. Clark] to give timely notice’ of disability,” S.A. 13,

and “failed to raise an issue of fact to show ‘it was not reasonably possible [for Mr. Clark] to

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furnish timely proof’ of disability,” id. at 14. Nothing in the record indicates that Mr. Clark failed

to submit timely notice and proof of his disability because he was somehow incapacitated. And

there is no basis for the Clarks’ suggestion that a finding of statutory disability by the Social

Security Administration (“SSA”) was a prerequisite to Mr. Clark pursuing, pursuant to his

agreement with Companion, his private, contractual disability claim.             Compare J.A. 118

(contractual definition of “disability” under Mr. Clark’s agreement with Companion, which makes

no reference to a finding of statutory disability by the SSA), with 42 U.S.C. § 423(d)(1)(A)

(statutory definition of “disability” in SSA proceedings); see also Kunstenaar v. Conn. Gen. Life

Ins. Co., 902 F.2d 181, 184 (2d Cir. 1990) (“The term ‘disability’ has a variety of meanings,

depending on the context in which it is used. . . . Statutory definitions such as these are not binding

[on a private insurer].”    (citations to various statutory definitions of “disability” omitted));

Messina v. Blue Cross & Blue Shield Ass’n, No. 3:03-CV-338 (NAM), 2005 WL 2346085, at *4

(N.D.N.Y. Sept. 23, 2005) (“Indeed, the definition of ‘totally disabled’ as advanced by plaintiff

and accepted apparently by the Social Security Administration may be entirely different than the

one utilized by defendant in reviewing claims under its private insurance plan.”).

       Nor does Mr. Clark’s own conduct suggest that it would have been reasonable for him to

believe that an SSA finding of statutory disability was necessary to pursue his contractual disability

claim. Indeed, it is telling that,

       in June 2004, Mr. Clark requested and received from [Companion] the forms
       necessary to provide proof of disability, which included an Application for
       Disability Benefit, along with forms to be completed by the insured, the insured’s
       doctor, and the insured’s employer. The forms did not reference any requisite
       finding of disability by the Social Security Administration.

S.A. 14 (internal citations omitted). The forms contained merely a lone, passing reference to the

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SSA on one page and instead included, among other papers, a simple page to be completed by the

insured’s physician. Upon receiving these forms, it was not reasonable for Mr. Clark to believe

that an SSA finding of statutory disability was needed to pursue his contractual disability claim.

Thus, the district court did not err in awarding Companion summary judgment on the Clarks’

breach of contract claim.

       We have considered all of the Clarks’ remaining arguments and find them to be abandoned

or without merit.1 Accordingly, we AFFIRM the judgment of the district court.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




1
 In their Complaint, the Clarks also sought, pursuant to Georgia state law, a declaratory judgment
and attorneys’ fees, costs, and expenses. The Clarks did not address these claims in their briefing
below and have not pressed them on appeal. We therefore conclude that the Clarks have
abandoned these claims. See Fed. R. App. P. 28(a)(8)(A) (specifying that an appellant’s brief
must include “appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies”); Bozeman v. United States, 780 F.2d 198,
199 n.4 (2d Cir. 1985) (noting that where a party “did not raise or brief that issue in this
appeal . . . we therefore treat that claim as abandoned”).

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