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WEISBLATT v. MINNESOTA MUT. LIFE INS. CO.

April 1, 1998

JEANNE M. WEISBLATT, Individually and in her capacity as Executrix of the Estate of Jerry Weisblatt
v.
THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY



The opinion of the court was delivered by: DALZELL

MEMORANDUM

 Dalzell, J.

 April 1, 1998

 Plaintiff here sues for recovery of insurance benefits which she admits she neither bought nor specifically requested. Defendant has moved for summary judgment as to all counts in plaintiff's second amended complaint, and for the reasons detailed below, we will grant the motion and enter judgment in favor of defendant.

 I. Background1

 Donald Scarazzo, an insurance agent of defendant Minnesota Mutual Life Insurance Company (hereinafter "MMLI"), twice met with plaintiff Jeanne M. Weisblatt and her husband, Rabbi Jeffrey Weisblatt, on March 30, 1994 and June 15, 1994. Opp'n Summ. J. at 3; N.T. of Jeanne Weisblatt, February 2, 1998 (hereinafter "Weisblatt Dep.") at 84, 92. The first meeting between them lasted two hours. Id. at 89. At that meeting, Mr. Scarazzo allegedly represented that "he had many years' experience, that he, specifically, had a diverse knowledge of needs for clergy and that his knowledge was great about insurance, insurance needs." Id. at 169. In addition, as Ms. Weisblatt recounts:

 
[Rabbi Weisblatt] said . . . the reason for our meeting was that we needed life insurance; he needed to increase his life insurance. And . . . I remember [Rabbi Weisblatt] . . . saying, Bottom line is: My wife needs to have enough insurance to not have to work in the event of my death.
 
And Mr. Scarazzo said, well, you know, the likelihood of that happening wasn't great because [Rabbi Weisblatt] was young and healthy and that we really need to plan for our future; and, you know, what did that include. And we said, Well, a house, college and everything.
 
And he said that the likelihood of [Rabbi Weisblatt] dying prematurely wasn't really likely and that -- then he went on to show us how as we got older, what [Rabbi Weisblatt] would be . . . making as he got older, just in terms of it would grow greater and that Social Security usually covers this much; and there would be a paucity of income there. And that's why we should really buy a policy that would cover us in that event.
 
And we agreed that there should be some small savings but that our bottom line was . . . absolutely that it was life insurance coverage, in the event of his death, that I wouldn't have to work.
 
And I asked Mr. Scarazzo -- because he started asking about, you know, our plans. And that's when I had asked him about, Well, actually, I'd like -- I need a financial advisor to help us buy a house and to do all that and, you know, Could he do that. And he said, Yes, absolutely, that he was capable of doing that; and, you know, he could cover all our needs for us.
 
And then . . . he asked what we had. He had seen the Woodmen policy and said that it really wasn't a good policy and did we know that it was going to disappear, that it really wasn't going to be worth anything when [Rabbi Weisblatt] hit 65; which we said, No.
 
And he said, Well, it really isn't; and let me show you. I have something where I can double your death benefit and not increase your -- fee, the amount of your monthly expense to pay for it. And, you know, why it was a better policy and why we should cash in the other policy and that -- Look how much more we were getting for the same money. We believed that, basically, that was all our money could buy.

 Weisblatt Dep. at 89-91. Scarazzo thus allegedly recommended that the Weisblatts "surrender" the policy with Modern Woodmen of America (hereinafter "Woodmen Policy"), because it would eventually become "essentially worthless," id. at 133, but he did not specify what the cash-in value would be. Id. at 135-36. The Weisblatts "never talked about specific amounts [they] needed" for life insurance, id. at 105, and Scarazzo never recommended an amount of death benefit he thought the Weisblatts should purchase. Id. at 104. He also never mentioned "term insurance." Id. at 99.

 The second meeting between the Weisblatts and Scarazzo took place a month-and-a-half after the first meeting. Id. at 161. At that meeting, the parties retread much the same ground from the first meeting:

 
[A.] [Rabbi Weisblatt] said to him, again, that our bottom line was life insurance, that we needed the most amount of insurance that we could buy to cover in the case of -- in the event of his death; that I wouldn't have to go to work, because I was pregnant with our third child, and I would have to stay home and take of the children.
 
Q. And during that second meeting, did your late husband raise anything pertaining to life insurance having a small savings element in it?
 
A. Well, that's what Mr. Scarazzo was describing that the policy was. He was very adamant . . that that was a large concern for us, was the pension -- that had to be after retirement, that we have additional savings for that; and that he had doubled the insurance for the same amount and that this was a good thing. And that was it.

 Id. at 162-63. At neither meeting did the Weisblatts request -- nor did Scarazzo offer -- a policy with a death benefit in excess of $ 200,000. Id. at 165.

 Rabbi Weisblatt died on June 1, 1995, widowing plaintiff and leaving three small children. Second Am. Compl. at P39. MMLI paid Mrs. Weisblatt a death benefit of the full policy amount of $ 200,000, plus a proportionate dividend, premium refund, and interest totalling $ 2,691.62. Second Am. Compl. at P40. After the Rabbi's death, Mrs. Weisblatt "determined that the death benefit of the [MMLI] Policy was insufficient to meet the Weisblatts' 'Expressed Needs,'", id. at P 41, i.e., "to provide plaintiff with an income from the interest on the death benefit, without invading the principal of the death benefit, such that plaintiff would not have to work, but instead would be able to raise their three small children full time." Id. at P 21. Believing herself to have been hoodwinked by Scarazzo and MMLI, whom she thought had guaranteed that the policy they sold her would meet her "Expressed Needs," plaintiff brought this action, alleging common law negligent misrepresentation and fraud and deceit, statutory bad faith, and violations of Pennsylvania's consumer protection laws. *fn2"

 II. Legal Analysis

 a. Summary Judgment Standard

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To defeat summary judgment, the non-moving party "may not rest upon the mere allegations or denials of [her] pleading, but [her] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Specifically, the non-moving party must produce evidence such that a reasonable jury could find for that party. Anderson, 477 U.S. at 248. A mere scintilla of evidence, however, will not require us to send the question to the fact-finder. Id. at 251 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)). When considering how a reasonable juror would rule, we apply the substantive evidentiary standard that the fact-finder would be required to use at trial. 477 U.S. at 252.

 Two different substantive evidentiary standards apply to plaintiff's claims in this case. As to her claims of common law fraud, fraudulent violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL"), 73 Pa. Stat. Ann. § 201-2(4)(xv) and (xvii), and statutory bad faith, 42 Pa. Stat. Ann. § 8371, plaintiff must prove each element of those claims by clear and convincing evidence. See Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 731 (3d Cir. 1991)(citing Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971), cert. denied, 407 U.S. 920, 92 S. Ct. 2459, 32 L. Ed. 2d 806 (1972))(applying clear and convincing standard to common law fraudulent misrepresentation claims); Prime Meats, Inc. v. Yochim, 422 Pa. Super. 460, 468, 619 A.2d 769, 773, appeal denied, 538 Pa. 627, 646 A.2d 1180 (1993) (table) (holding that in order to recover under the prohibition on fraudulent conduct under the UTPCPL, elements of common-law fraud must be proven); Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 750-51 (3d Cir. 1994)(applying evidentiary standard to statutory bad faith). As to Mrs. Weisblatt's claims of negligent misrepresentation and non-fraudulent violations of the UTPCPL, 73 Pa. Stat. Ann. § 201-2(4)(v) and (vii), the evidentiary standard is one of a preponderance of the evidence. See Fiorentino v. Travelers Ins. Co., 448 F. Supp. 1364, ...


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