United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court on Union National's Motion for
Summary Judgment , Plaintiff's Motion to Strike
Union National's Motion in Support of Summary Judgment
, and Plaintiff's Motion for Partial Summary
Judgment . After reviewing the applicable law and
submissions of the parties, the court finds as follows:
• Plaintiff's Motion to Strike  is
granted in part and denied in
â¢ Hecker's references to there being a paper/hard copy
waiver of premium file in Paragraphs 10, 11, and 15 of her
Declaration are struck, as they are blatantly contradicted by
Union National's previous discovery responses. o
Randall's attempts to offer evidence of correspondence
between Mr. Brabec and Mr. Vancleave and the reason for the
delay in issuing the second check are struck for lack of
personal knowledge. Randall's statements as to what the
proper interest rate under the Policy and Mississippi law is
are also struck.
â¢ Plaintiff's motion as to Exhibit E of Union
National's Motion for Summary Judgment is
moot in light of the Court's previous
Order . o The remainder of Plaintiff's motion is
• Union National's Motion for Summary Judgement
 is granted in part and denied
• Smith's Motion for Partial Summary Judgment 
is granted in part and denied in
a life insurance dispute over a $10, 000 policy (“the
Policy”). In 1994, Daisy Carter took out a life
insurance policy with Union National. She initially named her
daughter, Sandra Carter as the beneficiary. In 1996, she
submitted a Change of Beneficiary Form naming Plaintiff, her
neighbor, as the beneficiary. In 2004, Union National
switched its policy administration system, where all
documents were stored on microfilm and indexed in the C.A.R.
Carter died on May 31, 2014. The next day, C&J Financial
submitted a request for Union National to verify benefits
under Carter's life insurance policy to pay for her
funeral at Marshall Funeral Home. Union National checked its
C.A.R. Indexing System, which only showed the original
application, and advised that Sandra Carter was the
beneficiary. Shortly after, Gina Marshall, an employee of
Marshall Funeral Home, sent Dawn Key, a Union National
employee in the benefits verification department, a scanned
copy of the Change of Beneficiary form showing that Plaintiff
was the beneficiary. Key informed Marshall that the documents
needed to be sent to the Claims Department, as she did not
have the authority to resolve beneficiary disputes. Marshall
then called Union National's call center and explained
that she had copies of the Change of Beneficiary form. None
of those employees told her to send the form to them. The
Claims Department never received the documents. The Policy
benefits were paid to Sandra Carter, who then assigned them
to the funeral home. Daisy Carter's funeral was held
19, 2014, Plaintiff wrote Ed Konar, president of Union
National, a letter asserting that she was the beneficiary of
the Policy. She asked what she needed to do to receive the
proceeds. She included Carter's death certificate, but
not the Change of Beneficiary Form. Michelle Randall, an
employee in the Claims Department, did a second investigation
into the documents listed on the C.A.R. Indexing System, and
advised Mr. Konar's assistant that Sandra Carter was the
beneficiary. Konar responded as such and stated that if
Plaintiff had any questions to please contact him.
January 13, 2015, Plaintiff filed suit alleging that Union
National breached its contract with its insured, Daisy
Carter. She has further alleged that Union National
wrongfully denied her the proceeds of this Policy in bad
faith. Two weeks later, the attorneys for Union National and
Plaintiff exchanged emails where Plaintiff's counsel
acknowledged that he had proof that Plaintiff was the correct
beneficiary, but that he would not send the document to
defense counsel unless either (1) Union National sent him
certified copies of all of its paper files or (2) defense
counsel personally affirmed that he had reviewed all of Union
National's hard copy policy files and found no proof that
Plaintiff was the beneficiary. Plaintiff's counsel cited
Union National's duty to investigate its own files and
asserted that Union National could not delegate that duty to
the insured in support of his offer to exchange documents.
Union National's attorney declined, stating they would
wait for Plaintiff's initial disclosures.
February 4, 2015, a paralegal found the Change of Beneficiary
form in Daisy Carter's waiver of premium file. On April
30, 2015, Plaintiff attached the Change of Beneficiary form
in response to Kemper Corporation's Motion for Summary
Judgment. Plaintiff produced the document in her initial
disclosures on December 4, 2015. On January 13, 2016, Union
National found the Change of Beneficiary form in its
microfilm. On February 4, 2016, it sent Plaintiff a check for
$10, 398.96, representing the policy limits, plus 8%
interest, minus a loan Daisy Carter had taken out against the
Policy. Plaintiff's counsel rejected the tender as it was
not unconditional, did not include attorney's fees, and
did not show how interest was calculated. On June 29, 2016,
Union National delivered another check that was then
parties have filed motions for summary judgment. Plaintiff
has also filed a Motion to Strike (1) the three affidavits of
Union National employees that it attached to its Motion for
Summary Judgment because they are “sham affidavits,
” (2) evidence she argues should be excluded for
untimely disclosure under Federal Rule of Civil Procedure 26,
and (3) parole evidence.
Motion to Strike 
Sham Affidavit Rule holds that “a
plaintiff may not manufacture a genuine issue of
material fact [in defending a motion for summary judgment] by
submitting an affidavit that impeaches prior testimony
without explanation.” Doe ex rel. Doe v. Dallas
Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000);
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
495 (5th Cir. 1996); Albertson v. T.J. Stevenson &
Co., 749 F.2d 223, 228 (5th Cir. 1984). Nevertheless,
“[w]hen an affidavit merely supplements rather than
contradicts prior deposition testimony, the court may
consider the affidavit when evaluating genuine issues in a
motion for summary judgment.” S.W.S. Erectors,
Inc., 72 F.3d at 496. Furthermore, the Court
“cannot disregard a party's affidavit merely
because it conflicts to some degree with an earlier
deposition.” Kennett-Murray Corp. v. Bone, 622
F.2d 887, 893 (5th Cir. 1980). In such cases, there is merely
an issue of credibility, which must be resolved by the jury.
Id. at 893, 894. In contrast, when an affidavit
attempts to create a sham issue, to the point that the court
may brand it as “bogus, ” the Court may disregard
such sham affidavit. Id. at 894.
Declaration of Judy Hecker
first takes issue with Paragraph 7 of Hecker's
Declaration. The Declaration states:
As to the Policy here, Union National stored on its microfilm
rolls the original Application for Insurance and the Request
for Policy Change, evidencing the change of beneficiary from
Sandra Carter to Plaintiff. (See Application for
Insurance and Request for Policy Change, attached hereto as
Exhibits ‘1' and ‘2, ' respectively.).
of Judy Hecker ¶ 7, ECF No. 375-1. Exhibit 2 to
Hecker's Declaration, the Request for Policy Change, is a
document Bates stamped UNLIC 1364. Plaintiff points out that
that in one of its interrogatory responses, Union National
identified UNLIC 45 as the Change of Beneficiary form found
on the microfilm. Union National Life Ins. Co.'s Third
Supp. Resp. Pl.'s First Set of Interrog. 23-13, 5, 30-31,
ECF No. 378-4.
worth noting that these documents are copies of the same
form, meaning the substance of each of these documents is the
same. Plaintiff argues that the distinction between these two
documents matters because UNLIC 45 was produced with
Defendant's December 9, 2015 Disclosures [378-5] with a
paper flag on it. Plaintiff further points out that the
disclosure happened before Union National says that it found
the document on microfilm, on January 13, 2016. Hecker Decl.
¶ 19, ECF No. 375-1. In response, Union National submits
that UNLIC 45 is a copy of the form found in a waiver of
premium file,  while UNLIC 1364 is the copy of the
document on microfilm. Union National's interrogatory
response that Plaintiff claims Hecker's Declaration
contradicts even says UNLIC000044 and UNLIC 45 “were
stored in hard copy in Plaintiff's waiver-of-premium
file.” Union National Life Ins. Co.'s Third Supp.
Resp. Pl.'s First Set of Interrog. 3, ECF No. 378-4.
Court finds there is not sufficient contradiction between
Union National's interrogatory response and Hecker's
Declaration to warrant calling it a “sham.” It
appears that in the interrogatory response, Union National is
using UNLIC 45 to refer to the Change of Beneficiary Form in
general. While the response could have been clearer as to the
exact document it was referring to, this is not enough to
strike to this portion of the affidavit.
8 reads: “So, without having the Request for Policy
Change properly indexed, Union National was unable to locate
this document in the archives.” Hecker Decl. ¶ 8,
ECF No. 375-1. Plaintiff argues that this is “totally
contrary” to Defendant's deposition testimony by
Hecker as a Rule 30(b)(6) designee. Pl.'s Mem. Supp. Mot.
Strike 4, ECF No. 379.
deposition, Hecker first testified that in order to find an
unindexed document on Union National's microfilm,
“you would have to go through every single roll of
Union National's microfilm, one by one-there's
hundreds of thousands of those.” Hecker Dep. 43:7-12,
ECF No. 378-2. Hecker then testified that rolls are stored
“by week and year” and that they are not stored
by policy number range. Id. at 44:1. Plaintiff's
counsel then showed Hecker the outer cover of a box that
contained a roll of microfilm that had a range of policy
numbers listed on it.
Q: So your testimony a moment ago that life policy changes
were not stored by policy number and year is incorrect;
isn't that true?
A: Based on this, that is true.
Id. at 45:25-46:3. After this, Hecker again stated
that without the index, one would need “the date, the
year, and the week” that the change was made to find
the document on the microfilm. Id. at 46:10-13.
After Plaintiff's counsel pointed out that one would only
need to search the rolls for the years 1994 (the year the
policy was issued) through 2014 (the year Daisy Carter died),
Plaintiff's counsel asked:
Q: However many [rolls of film] it is, whether it's
hundreds of thousands, like you testified, or tens of
thousands, Union National wouldn't have to go through
every single roll to find the beneficiary change on a
specific policy, would it?
Q: All it would have to do was go through the rolls that are
indexed for policy changes that have the range of policies
that include Ms. Smith's policy; isn't that true?
A: That could be done, yes.
Id. at 51:7-17.
Plaintiff's counsel informed Ms. Hecker that another
employee, Stacy Huch was able to find the document on a
microfilm viewer in less than ten (10) minutes. Id.
51:18-25. Plaintiff's counsel then stated that the roll
was organized in sequential order by policy number.
Q: Well, the policies-the information on the roll, as she
reviewed it, was in policy number order. So the only thing
she had to do to find Ms. Smith's policy number was
advance the roll, look at the policy number, until she got to
the policy number, right? It would be just like finding a
number between 1 and 1, 000. If you knew the number was 662,
all you would have to do is find 500 and 700, and then close
it in until you got to the right number, right?
Q: That's an easy thing to do, right?
Id. at 52:6-18.
testimony contains some inconsistencies. Nevertheless, it
appears that she was confused by Plaintiff's
counsel's questions and the cover of the microfilm roll.
Further, she does state several times that one would need to
know the week and year of a policy change in order to find a
document that was not indexed on microfilm. Thus, any
inconsistencies in Hecker's testimony existed from the
date of the deposition, which suggests that the affidavit is
not a sham.
Plaintiff's assertions, Hecker does not clearly state
that the document could be found “easily.” She
merely states that it would be “easy” to find a
document with a number, if those documents were organized
sequentially. Her statement in the affidavit that Union
National would not be able to find a document that was not
indexed is not flatly contradicted by her deposition
testimony. It is not a sham.
then cites to several long excepts from Hecker's
deposition, which may be summarized as follows: (1) Hecker
conceded that Gina Marshall, an employee of Marshall Funeral
Homes, sent Dawn Key, an employee of Union National,
documents proving that Plaintiff was the beneficiary and that
included the date of the beneficiary change on June 3, 2015;
those documents and the email were never scanned into the
Union National's system; and (2) a screenshot on the old
policy administration system also listed Plaintiff as the
correct beneficiary, but it did not include the date of the
change; and logging into the old system and pulling up this
document took Hecker about a minute. None of this directly
contradicts Hecker's affidavit, which simply states:
“So, without having the Request for Policy Change
properly indexed, Union National was unable to locate this
document in the archives.” Hecker Decl.¶ 8, ECF
No. 375-1. The Court agrees with Defendant that
Plaintiff's arguments are overlapping with her
substantive arguments in the motions for summary judgment.
None of this is so contradictory as to require calling
Hecker's affidavit a sham. These arguments are without
Statements Regarding the Waiver of Premium File
(Paragraphs 10, 11, 15)
affidavit, Hecker states, “A hard copy of the Request
for Policy Change . . . was found in the course of this
litigation in a Waiver of Premium claim file . . ., which is
a separate paper file.” Hecker Decl. ¶ 7, ECF No.
375-1. Paragraphs 11 and 15 also make references to there
being a paper copy of the Request for Policy Change.
Plaintiff points out that in several interrogatory responses,
Defendant has testified that the paper copy of Daisy
Carter's Waiver of Premium file was imaged to microfilm
and then destroyed in the regular course of business in March
2014. Union Nat'l Life Ins. Co.'s Second Supp. Resps.
Pl.'s First Set Interrog. 4, ECF No. 378-13. In another
response to an interrogatory, Union National stated,
“On or about February 4, 2015, [S. Joyce] Scales, a
paralegal within Union National's legal department, was
able to locate UNLIC 44 and 45 within Plaintiff's
imaged waiver of premium file.” Union
Nat'l Life Ins. Co.'s Third Supp. Resp. Pl.'s
First Set of Interrog. 14, ECF No. 378-4. In response to a
request for production asking for all original/hard copies of
documents comprising or relating to each claim file(s), Union
National stated that it had produced such documents. It
further stated: “Union National does not have the
original documents. Union National imaged all such paper
documents in the normal course of business.” Union
Nat's Life Ins. Co.'s Third Supp. Resps. Pl.'s
First Set Req. Produc. Docs. 5-6, ECF No. 378-15.
response Union National argues: “[T]here is no real
inconsistency between the discovery responses and
Hecker's declaration, and any perceived inconsistency is
immaterial.” Brief Opp. Pl.'s Mot. Strike 8, ECF
No. 404. While Union National apparently does contest
Plaintiff's argument that Hecker's statements are
inconsistent with Union National's discovery responses,
it failed to give any explanation so as to resolve these
inconsistencies. Rather both of the parties' briefs focus
on whether such facts are material to this case. As that is
not an issue in this motion, the Court will not determine
whether the document was in a paper copy or imaged. For now,
the Court will strike any references to the document being
found in paper form. Plaintiff's motion is granted to the
extent that the affidavit states that UNLIC 44 and 45 were
found in a hard copy or paper copy.
also takes issue with Paragraph 11, which reads as follows:
Accordingly, at the time of Daisy Carter's death, there
were two documents in Union National's possession
reflecting that Daisy Carter had changed the beneficiary
under her Policy to Plaintiff: (1) the Request for Policy
Change stored on the microfilm roll that was not located
because it was not indexed in the C.A.R. Indexing System, and
(2) a paper copy of the Request for Policy Change that was
located in an old claim file in the Claims Department (i.e.,
the Waiver of Premium paper file in the Claims Department)
where it would not be expected to be found.
Hecker Decl. ¶ 11, ECF No. 375-1. Plaintiff argues that
this statement is “patently false” as the
following were in Union National's possession:
• UNLIC 1362 [378-12]: This is a screen shot from the
“old policy administration system” that listed
Jeanetta Smith as a beneficiary. Union National argues that
this is not a “document.”
• UNLIC 44 [378-10]: This is also a screen shot from the
“old system.” This shows the date of change and
that Jeanetta Smith is a beneficiary. Union National also
argues that this is not a document.
• UNLIC 62, 545, 542 [378-17]: Each of these documents
say “see endorsement for beneficiary, ” but none
of them contain the actual endorsement, nor do any
specifically state that Plaintiff is the correct beneficiary.
• Documents provided by Gina Marshall [378-9]: These
documents clearly show that Smith was the correct
beneficiary. Plaintiff states that these were provided to
Defendant on June 2-3, 2014. It is uncontested that this was
after Daisy Carter's death.
• The waiver of premium file that was imaged into Union
National's electronic files. Union National argues that
“this file is one of the two files Hecker acknowledges
existed at the time of Carter's death in her
declaration.” Brief Opp. Pl.'s Mot. Strike 11, ECF
Court finds that this is not so contradictory to warrant
striking this portion of Hecker's affidavit.
Plaintiff's motion is denied as to this
Paragraph 14 and Paragraph 9
14 of Hecker's declaration states: “The only source
document that could be located regarding the policy was the
application, reflecting that Sandra Carter was the
beneficiary.” Hecker Decl. ¶ 14, ECF No. 375-1.
Hecker then states that “source documents” are
the documents that are imaged on microfilm and indexed on the
C.A.R. Indexing System. Id. ¶ 15. Plaintiff
argues that Hecker testified that the documents listed above
“could have easily been located with minimal
investigation.” The fact that other documents-that are
not source documents-could have been found does not
contradict the affidavit.
next takes issue with Hecker's statement that the
Application for Insurance is a “source document.”
As just noted, the declaration refers to documents on the
microfilm that were indexed on the C.A.R. Indexing System as
“source documents.” Plaintiff cites the following
deposition testimony, during which Hecker is reviewing a
print out of the C.A.R. Microfilm Index, [357-4], which shows
relevant documents after a person inputs a policy number.
Q: So this tells us that at Roll 5180 of Union National's
microfilm, at Frame 1659, there is some information related
to Policy 7020526342, correct?
A: Yes. And we know it's return mail.
Q: And we also know that at Roll 999, at Frame 99999, the
entire file related to that policy is found, correct
A: That's incorrect
A: Because . . . there's no such roll and frame. [The
date listed] was when records were requested a couple years
ago, when we requested records.
They started adding them to the C.A.R. index to let the
clerical staff know that these records are in imaging. . . .
The same thing for the original app[lication]. They're
telling us that the original app[lication] was imaged in
imaging on [September] 12, 2016. . . . The only thing that we
had, physical, on a roll and frame that was indexed was
Q: It's Union National's testimony that the only
documents pertaining to Daisy Carter's life insurance
policies that were indexed on-that were recorded on Union
National's microfilm system was some returned mail dated
April 30th, 2003?
A: That's the only thing that was indexed.
Q: Well, what do you mean by that?
A: The application, the original application is also on
rolled film. Those were housed by policy number and issue
year. They are not indexed on the C.A.R. retrieval system.
Hecker Dep. 34:5-35:17, ECF No. 378-2. In response, Union
National submits that these statements are not contradictory.
It is uncontested that policy applications were stored by
year and policy number; therefore, those documents would not
need to be indexed. Policy applications do, however, show up
in the C.A.R. Indexing System when a person inputs the policy
number. See CAR Indexing System [357-4].
argues that Hecker's statement that she has never known
of another instance where a document stored on microfilm was
not indexed in the C.A.R. Indexing System. Plaintiff submits
that since policies were not indexed this statement is a
sham. It is clear from the above deposition testimony that
Hecker is referring to documents that change the policies,
not policy applications. This argument is without merit.
argues that Hecker's testimony that Dawn Key
“followed company procedures by referring Marshall to
the claims Department and instructing her to submit the
change for their consideration” contradicts her
previous testimony “that Key's failure to image
Marshall's email and policy documents into the system was
a violation of Defendant's Claims Guiding Principles and
Defendant's Policy Administration Guiding
Principles.” Plaintiff concedes that these principles
are dated October 2015, which is after Key received the
emails. Further, Hecker testified that those policies were
not in place when Marshall emailed Key. Hecker Dep.
157:15-158:3, 162:22-25, 163:1-9, ECF No. 378-2.
Nevertheless, Plaintiff argues that Defendant was unable to
demonstrate that the oral policies in place at that time were
different from the written policies. As the movant, Plaintiff
has the burden to show inconsistencies so blatant to warrant
calling this affidavit a sham. It is not Union National's
burden to prove otherwise. Plaintiff has not met her burden
Plaintiff takes issue with Hecker's statement that she
and Stacy Huch were not able to locate the Change of
Beneficiary Form on microfilm until January 13, 2016. Hecker
Decl. ¶ 19, ECF No. 375-1. In an interrogatory response
and several supplemental responses, Defendant stated that it
first found the document on microfilm on January 13, ...