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Smith v. National Western Life Insurance Co.

May 11, 2010


The opinion of the court was delivered by: Hon. John E. Jones III

Hon. J. Andrew Smyser



This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 64), filed on March 22, 2010, which recommends that we grant the Defendant's Motion for Summary Judgment. (Doc. 60). Defendant National Western Life Insurance Company ("Defendant") filed objections to the R&R on April 5, 2010. (Docs. 67 and 68). Plaintiff Florence Smith ("Plaintiff" or "Smith") filed objections to the report (Docs. 70 and 71) on April 8, 2010. The Defendant has responded to Plaintiff's objections. (Doc. 75). Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, grant the Defendant's Motion for Summary Judgment and close this case.


On November 21, 2008, Defendant removed the instant case to this Court from the Dauphin County Court of Common Pleas. (Doc. 1). In her Complaint, Plaintiff alleges that in December of 2005, she bought from the Defendant a 20 year Flexible Premium Deferred Annuity. Plaintiff paid $76,366.02 for the product. Plaintiff purchased the product from Defendant as the result of a contact with or visit to her at her residence. Plaintiff was 83 years old at the time she purchased the policy and had been diagnosed with dementia. Plaintiff alleges that she was not given a 3-day "Notice of Cancellation" as required by provisions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-7(b)(2). However, the annuity itself offered Plaintiff a 20-day period in which to cancel and have all money refunded. This cancellation provision appeared on page one of the annuity policy, in bold print. Plaintiff further alleges that she did cancel the transaction in writing on April 18, 2008, but that the Defendant has not honored her cancellation.

Plaintiff's Complaint contains three causes of action. In Count I, the Plaintiff states a claim under PUTPCPL, asserting that the Defendant's failure to provide her with a Notice of Cancellation form and failure to honor her written notice of cancellation dated April 18, 2008 was a deceptive act or practice that caused Plaintiff financial harm. Count II asks for the Court to Order the cancellation of the annuity contract.

Count III of the Complaint also states a claim under PUTPCPL, asserting that Lonnie Goodling, the individual who sold her the annuity product, committed an unfair or deceptive act or practice in violation of P.S. § 201-2(4) and 201-3 by misrepresenting the nature of the annuity and by engaging in conduct that was likely to create confusion or misunderstanding in the Plaintiff.

Following full briefing on the Defendant's Motion for Summary Judgment (Doc. 37), Magistrate Judge Smyser issued the instant R&R (Doc. 64), which is presently before the Court for review.


A. Review of Magistrate Judge's R&R

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

B. Summary Judgment

Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to ...

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