Ivan Goldstein v. the Lincoln National Life Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1088
IVAN GOLDSTEIN,
Plaintiff - Appellant,
v.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cv-00706-WMN)
Submitted: June 17, 2011 Decided: July 26, 2011
Before DAVIS and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
David Rodman Cohan, Russell D. Karpook, COHAN, WEST & KARPOOK,
P.C., Baltimore, Maryland, for Appellant. Bryan D. Bolton,
Michael P. Cunningham, FUNK & BOLTON, P.A., Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This is a dispute regarding the cancellation of Ivan
Goldstein’s life insurance policy (the Policy), issued by The
Lincoln National Life Insurance Company. On appeal, Goldstein
challenges the district court’s granting of Lincoln National’s
motion for summary judgment with respect to his two alternative
breach of contract claims under Maryland common law. In the
first claim, Goldstein alleges that Lincoln National wrongfully
cancelled the Policy, because he never received the grace period
notice required under the Policy prior to the Policy’s
cancellation. In his alternative claim, Goldstein alleges that,
assuming arguendo
With respect to Goldstein’s first claim, Goldstein
contends the district court erred in holding that he had failed
to proffer sufficient evidence to create a genuine issue of
material fact, regarding whether he actually received the grace
period notice to which he was entitled under the terms of the
Policy, before Lincoln National could effectively cancel the
Policy. We agree. The summary judgment record establishes that
Lincoln National produced sufficient evidence under Maryland law
Lincoln National legitimately cancelled the
Policy, Lincoln National wrongfully failed to reinstate the
Policy, despite his compliance with the Policy’s terms of
reinstatement. We affirm in part, vacate in part, and remand
for further proceedings.

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to raise a rebuttable presumption that it mailed and Goldstein
timely received the grace period notice at issue. See Benner,
M.D. v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir.
1996) (under Maryland law, rebuttable presumption of delivery
and receipt of mail arises when material is properly mailed);
id. (“Evidence of ordinary business practices concerning the
mailing of notices is sufficient to create the presumption of
both sending and receiving.”). However, the summary judgment
record also establishes that Goldstein proffered sufficient
evidence to create a genuine issue of material fact as to
whether he received the grace period notice at issue.
Specifically, Goldstein proffered his own sworn affidavit
stating that he never received the grace period notice at issue
despite the fact that he was in town on or around the time when
such notice should have arrived in his home mailbox and he
retrieved the mail from such mailbox every day. See Border v.
Grooms, 297 A.2d 81, 83 (Md. 1972) (unequivocal testimony of
zoning board’s attorney that he did not receive mailed copy of
petition of appeal did not conclusively rebut the rebuttable
presumption of its receipt created by evidence that petition of
appeal was properly mailed to him; rather, such testimony
created issue for trier of fact); 2 Clifford S. Fishman and Anne
T. McKenna, Jones on Evidence § 10:3 (7th ed. 1994 & Supp. 2011)
(addressee’s sworn denial of receipt suffices to meet

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addressee’s burden to produce evidence to avoid directed verdict
on the issue of receipt in the face of rebuttable presumption of
correct delivery and receipt, provided denial is sufficiently
unequivocal). Because Goldstein proffered sufficient evidence
to create a genuine issue of material fact regarding whether he
actually received the grace period notice to which he was
entitled under the terms of the Policy before Lincoln National
could effectively cancel the Policy, we vacate the district
court’s entry of judgment in favor of Lincoln National with
respect to his wrongful cancellation claim and remand for
further proceedings.
With respect to Goldstein’s alternative claim
pertaining to reinstatement, we have reviewed the record and
find no reversible error. Accordingly, we affirm on the
reasoning of the district court with respect to that claim.
Goldstein v. The Lincoln Nat’l Life Ins. Co.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
, 1:09-cv-00706-WMN,
2011 WL 13864 (D.Md. Jan. 4, 2011).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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