UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

FIDELITY & GUARANTY LIFE INSURANCE COMPANY, Plaintiff - Appellee,

v. PATRICIA LITCHFIELD; LONNIE WILLIAM LITCHFIELD, Defendants - Appellants. No. 14-6147 (D.C. No. 5:13-CV-01040-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and MORITZ , Circuit Judges.

Fidelity & Guaranty Life Insurance Co. filed a compla int seeking a declaratory judgment that it was not obligated to pay death benefits under a term life insurance policy because that policy had been converted to a universal life insurance policy and death benefits were paid under that polic y. The district court granted summary judgment to Fidelity & Guaranty . Patricia Litchfield, the widow of the insured, Lee

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 18, 2015

Elisabeth A. Shumaker Clerk of Court- 2 - Litchfield, and Lonnie William Litchfield, the owner and beneficiary of the policies and the brother of Lee, appeal from th e grant of summary j udgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. In 1998, Fidelity & Guaranty issued a $1,000,000 term life insurance policy to Lonnie insuring Lee’s life. The policy provide d, in part, that it would terminate if it was exchanged for a new polic y on the insured’s life. In 2011, Lonnie and Lee completed a po licy change application to convert the term life insurance policy to a universal li fe insurance policy. Fidelity & Guaranty approved the change application and issued a universal life insurance policy to Lonnie, insuring Lee’s life for $1,000,000. Fidelity & Guaranty sent Lonnie a letter telling him that the term life insurance policy had been terminated and that all benefits previously provide d were null and void. Despite the conversion and termination of the term life insurance policy, Fidelity & Guaranty’s offshore processor di d not make an entry in its computer system to reflect the termin ation. So premium notices for the term life insurance policy were automatically generated and con tinued to be sent. Premium notices were

also sent for the universal life insurance policy. Lonnie paid the premiums for both policies, and Fidelity & Guaranty kept th e payments. During th e time Lonnie was making both sets of payments, a Fidelity & Gu aranty customer serv ice representative, who consulted Fidelity & Guaranty’s com puter system, informed Lonnie that the term life insurance po licy was in effect.- 3 - Lee died in July 2013, eighteen months after the conversi on of the term life insurance policy to the univers al life insurance policy. Lonnie contacted Fidelity & Guaranty and made a claim fo r death benefits under both policies. In reviewing the claim, Fidelity & Guaranty re alized that although the te rm life insurance policy had terminated, its system indicated that it was still in effect, and it had mistakenly sent payment notices and accepted payments on the term life insurance po licy. Fidelity & Guaranty refunded, with interest, the premiu ms paid on the term life insurance policy for the prior eighteen months. It also paid Lonnie the $1,000,000 death benefit, with interest, under the universal life insurance policy.

Lonnie and Patricia demanded in writi ng that Fidelity & Guaranty pay the

death benefit under the term life insurance policy. Fidelity & Guaranty filed this suit seeking a declaration that it has no oblig ation to pay a death benefit under the term life insurance policy. Fideli ty & Guaranty moved for summary judgment. Patricia and Lonnie argued that Fidelity & Gu aranty should be estopped from denying coverage under the term life in surance policy and that Fide lity & Guaranty waived an argument that it terminated the term life insurance polic y. Also, they asserted

counterclaims for breach of contract and bad faith by Fidelity & Guaranty. The district court granted summary j udgment, determining that Fidelity & Guaranty converted the term life insurance policy to a uni versal life insurance policy at Lonnie’s request, only the universal life in surance policy was in effect at the time of Lee’s death, equitable estoppel does not apply because Fidelity & Guaranty’s- 4 - off-shore processors made an administrative mistake, and that unintentional mistake

could not result in a waiver. 1 Consequently, the court declared that Fidelity & Guaranty did not owe Lonnie and Patricia an additional $1,000,000 under the term life insurance policy. In addition, the cour t rejected their counterclaims for breach of contract for failing to pay th e death benefit under the term life insurance policy and for bad faith deprivation of benefits under that policy. Patricia and Lonnie argue that the dist rict court erred in granting summary judgment in favor of Fidelity & Guaranty because (1) Fidelity & Guaranty’s mistake did not relieve it from its duty to pay the te rm life insurance policy death benefit or from the applicability of waiv er and estoppel; and (2) th e reasonable-expectations doctrine along with the partie s’ intent support modificati on and reinstatement of the term life insurance policy. “We revi ew [the] grant of summary judgment de novo , applying the same standard as the district court.” Oldenkamp v. United Am. Ins. Co ., 619 F.3d 1243, 1246 (10th Ci r. 2010) (internal quotati on marks omitted). Under

Federal Rule of Civil Pro cedure 56(a), the court properly “grant[ed] summary judgment if [Fidelity & Guaran ty] show[ed] that there is no genuine disput e as to any material fact and [it] is en titled to judgment as a matter of law.” We consider the

record and its inferences in the light most favorable to Patricia and Lonnie. See Oldenkamp , 619 F.3d at 1246.

1 The district court also denied Patr icia’s and Lonnie’s motion for partial summary judgment.- 5 - After considering the par ties’ briefs, appellants’ a ppendix, and the relevant law, in accordance with the above summar y-judgment standard of review, we agree with the district court’s disposition of th e case and conclude that there are no genuine issues of material fact and that Fidelity & Guaranty is enti tled to judgment as a matter of law. Accordingly, we affirm the court for substantia lly the same reasons

set forth in the court’s or der of June 19, 2014. See Aplt. App., Vol. II, at 771-81. The judgment of the dist rict court is affirmed.

Entered for the Court

Bobby R. Baldock Circuit Judge