* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 16 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BROOKE KEIRSEY, an individual, Plaintiff,

v. BANNER LIFE INSURANCE COMPANY, a foreign corporation, Defendant-Third-Party- Plaintiff-Appellant,

v. GENE IMKE and SUZY IMKE, jointly and severally d/b/a Imke & Associates, Third-Party-Defendants- Appellees. No. 03-6013 (Western District of Oklahoma) (D.C. No. CIV-01-1574-L)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and MURPHY , Circuit Judges.-2-

I. INTRODUCTION In 2002, Plaintiff-Appellant Banner Life Insurance Co. (“Banner”), filed a third-party complaint against Gene and Suzy Imke (the “Imkes”). The Imkes are independent insurance agents/brokers and the claims Banner asserted against them related to an application for a life insurance poli cy submitted by one of their clients, Bryan Keirsey. Banner alleged that neglig ent and fraudulent acts committed by the Imkes resulted in its liability to Mr. Keirsey’s surviving spouse under the terms of a conditional receipt. The part ies filed cross-motions for summary judgment. In their motion for summary judg ment, the Imkes argued, inter alia , that Mr. Keirsey’s policy was in effect on the date of his death notwithstanding the fact that the policy had not be en physically delivered to him. Relying on Mid-Continent Life Insurance Co. v. Dees , 269 P.2d 322 (Okla. 1954), the district court granted summary judgment in favo r of the Imkes and Banner appealed. Exercising jurisdiction pursuant to 28 U .S.C. § 1291, this court
affirms the district court’s order.
II. FACTUAL BACKGROUND The Imkes are insurance agents doing business in th e state of Oklahoma as Imke and Associates. In 2001, the Imkes were undercontract with Banner to solicit applications for Banner’s insurance policie s. With the assistance of the Imkes, Mr. Keirsey applied for a life insurance pol icy with Banner and signed a-3-

formal application for $250,000 of insurance on Jun e 14, 2001. In the application, he specifically elected to have the mo nthly premium payments automatically deducted from his checking account pu rsuant to Banner’s preauthorized check plan. The Imkes advised Mr. Keirsey to include a check fo r $15.00 with his application. This amount was more than the $14.44 monthly premium but less than two months’ premium. The Imkes accepted both the application and the $15.00 check from Mr. Keirsey and provided him witha Banner conditional receipt. The purpose of the conditional receipt wa s to provide temporary coverage to Mr. Keirsey prior to delivery of the po licy by Banner. Coverage under the conditional receipt terminated “the date the policy is delivered to the
Owner.” On July 26, 2001, Banner approved Mr. Keirsey’s app lication and issued policy No. 17B330677 to him. The policy was mailedto the Imkes and they received it on August 1, 2001. Mr. Keirsey died fo ur days later. The policy was not physically delivered to Mr. Keirsey prior to hi s death. Mr. Keirsey’s surviving spouse made a claim under the policy whic h Banner denied. Banner initially took the position that Mr. Keirsey had no coverage under the conditional receipt because the Imkes collected and remitted on ly one month’s premium. Banner based its decision on the terms of the condi tional receipt which stated,-4-

CONDITIONS WHICH MUST BE MET BEFORE INSURANCE MAY B ECOME EFFECTIVE PRIOR TO DELIVERY OF THE POLICY: 1. An amount equal to the modal premium indicated onthe application must be submitted; . . . pre-authorized check plan (two months’ premium required) . . . . Mrs. Keirsey filed a complaint against Banner in th e United States District Court for the Western District of Oklahoma, allegin g that Banner acted in bad faith by refusing to pay her claim. Several months later, Banner filed a thirdparty complaint against the Imkes alleging six caus es of action: (1) breach of fiduciary duty, (2) breach of contract, (3) neglige nce, (4) constructive fraud, (5) indemnification, and (6) setoff/declaratory judgment. In essence, Banner alleged that the Imkes’ failure to collect the full two mon ths’ premium payment from Mr. Keirsey resulted in the claims asserted against it by Mrs. Keirsey. Banner eventually entered into a settlement agreement with Mrs. Keirsey, but continued to pursue its claims against the Imkes. In September and October 2002, the parties filed cr oss-motions for summary judgment. In their motion, the Imkes argue d, inter alia , that any defects in the conditional receipt were irrelevant because the policy was in effect on the date of Mr. Keirsey’s death. In its response to th e Imkes’ motion for summary judgment, Banner argued that the policy was not in effect because two of the conditions precedent in the application had not bee n met: (1) the policy was not physically delivered to Mr. Keirsey during his life time, and (2) Mr. Keirsey was-5-

not “actually in the state of health and insurabili ty represented in . . . [his] application.” The district court rejected Banner’s argument, concluding that physical delivery of the policy was unnecessary und er Oklahoma law. Dees , 269 P.2d at 323. Accordingly, the district court enter ed summary judgment in favor of the Imkes. Banner then brought this appeal.
III. DISCUSSION This court reviews a grant of summary judgment de n ovo, applying the same standard employed by the district court. Welding v. Bios Corp. , 353 F.3d 1214, 1217 (10th Cir. 2004). A party is entitled t o summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re 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). Banner does not dispute that its claims against the Imkes should be resolved in favor of the Imkes if this court conclu des that the policy was in effect at the time of Mr. Keirsey’s death. Instead, Banne r first reasserts the argument it made before the district court that the policy was not in effect because it was not physically delivered to Mr. Keirsey during his life time. The application completed by Mr. Keirsey and submitted to Banner pr ovides, Except as may be provided in a duly issued Conditio nal Receipt, no insurance shall take effect unless and until the po licy has been1 Banner asserted at oral argument that the first pre mium had not been paid

and, thus, the policy was not in effect regardless of whether it was physically delivered to Mr. Keirsey. There is no doubt that t his argument was not made in the briefs Banner submitted to this court. In its opening brief, Banner framed the issues as follows: The unmistakable clear evidence in the present case establishes that the Banner Application contained two express condit ions precedent -6- physically delivered and the first full premium pai d during the lifetime of the insured(s) and then only if the per son(s) to be insured is (are) actually in the state of health and insura bility represented in Parts I and II of this application and any suppleme nts thereto . . . . Banner argues that this language created a conditio n precedent to the effectiveness of the policy; namely, the policy had to be physically delivered to Mr. Keirseywhile he was still alive.
InMid-Continent Life Insurance Co. v. Dees , the Oklahoma Supreme Court rejected the argument that “depositing the policy i n a postage prepaid envelope addressed and mailed to [the] agent is not a delive ry to the insured person.” 269 P.2d at 323. The court held, instead, that when the first premium has been paid, the application ha s been approved, the policy executed in accord therewith thereby completing the insurance contract, and nothing remains to be done but to deliver the policy to the insured . . . the mailing of the poli cy to the agent unconditionally while insured was in good health an d alive, to be given by him to the insured person constitutes deli very in law, manual delivery, or further acceptance, being unnec essary. Id. The district court noted that the parties did no t contest that Mr. Keirsey paid the first months’ premium. 1 It then found that the application was approved, andthat did not occur prior to Bryan Keirsey’s death. Namely, the Policy

had not been “ physically delivered . . . during [his] lifetime”; and (ii) Mr. Keirsey was not “actually in the state of health and insurability represented in . . . [his] application .” Accordingly, the argument regarding the payment of the first premium is waived. United States v. Abdenbi , 361 F.3d 1282, 1289 (10th Cir. 2004).

2Although the Imkes deny receiving either the Amendm ent to Application or cover letter, we will assume for purposes of thi s appeal that both were delivered with the policy. -7- the policy issued and received by the Imkes prior t o Mr. Keirsey’s death. Banner does not challenge these findings on appeal. Inste ad, it simply asserts that the language in the application signed by Mr. Keirsey r equired physical delivery to Mr. Keirsey before his death. Banner, however, has failed to identify any material difference between the language in the app lication signed by Mr. Keirsey and the language in the application before the Okla homa Supreme Court in Dees

. Thus, Banner’s argument regarding physical deliveryof the policy to the insured is clearly foreclosed by the holding in Dees

. In the alternative, Banner argues that the equitabl e doctrine of constructive delivery set out in Dees is inapplicable in this case because the policy wa s not unconditionallydelivered to the Imkes. In support of this argume nt, Banner relies on the fact that the policy was mailed to the Imkes together with a document entitled, “Amendment to Application” and a cover le tter titled, “Delivery Requirements.” 2The Amendment to Application form states,-8-

The Banner Life Insurance Company is hereby authori zed to amend the application identified above in the following m anner: Part I Question #32 shall read: no Part I Question #25 shall read: $250,000/OPTerm 10/ Standard Plus Non Tobacco Part I Question #29 shall read: none Below this text is a line for Mr. Keirsey’s signatu re. Banner asserts that an amendment to the application was necessary because Mr. Keirsey left three questions blank when he completed the application. The testimony of Banner’s own witness refutes Banner’s assertion that it was necessary for Mr. Keirsey to complete the questions which he left blank on his application before the policy became effective. Brian O’Flaherty, the underwrite r who approved Mr. Keirsey’s application, testified that he had already obtained the information requested in the Amendment to Application and that the failure to co mplete the questions properly had no effect on the issuance of the policy. Banner also argues that the Amendment to Applicatio n constitutes a counter-offer for coverage at a higher premium thanwas requested by Mr. Keirsey in his application. Banner, accordingly, goes on t o argue that Mr. Keirsey was required to sign the Amendment to Application and a ccept the counter-offer before the policy became effective. Despite Banner ’s assertion that “the record demonstrates that Banner did not accept Mr. Keirsey ’s offer, but rather, made a counter-offer for a higher premium,” we could find no such evidence in the-9-

record. Our review of the record reveals that Bann er’s assertion is misleading and disingenuous. The uncontroverted evidence demo nstrates that the policy issued to Mr. Keirsey was the same policy for whichhe applied. Suzy Imke testified that Mr. Keirsey first applied for a life insurance policy with Massachusetts Mutual Life Insurance Company. When Mr. Keirsey was not approved at the preferred rate, he asked the Imkes to attempt to secure a better rate from other companies. Suzy Imke further testi fied that Mr. Keirsey’s information was transmitted to Banner and it inform ally approved him for insurance at its “Standard Plus” rates. Gene Imke testified that Banner quoted Mr. Keirsey an annual premium of $165.00 for $250,0 00 of life insurance at the Standard Plus rate. Based on that quote, Gene Imke calculated the monthly premium payment which was paid by Mr. Keirsey and f orwarded to Banner with the application. The policy issued to Mr. Keirsey clearly states that the rating classification is “Standard Plus” and that the annu al premium is $165.00. In a vitriolic and thoroughly unprofessional manner , Banner criticizes the Imkes for relying only on citations to their testim ony regarding whether the policy Mr. Keirsey applied for was the policy which Bannerissued. As the party opposing the Imkes’ motion for summary judgment, ho wever, it is Banner’s burden “to make a showing sufficient to establish the existence of an element essential to [its] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).-10-

Banner has utterly failed to do this. In support o f its argument that the documents it allegedly sent to the Imkes together with the po licy constituted a counter-offer for insurance at a higher premium, Banner relies so lely on Mr. Keirsey’s failure to complete Question #27 of the application which stat es, “If our underwriting indicates that we cannot give you the lowest rate f or the Plan of Insurance, will you consider a higher rate?” In light of the Imkes ’ uncontroverted testimony and the evidence that Mr. Keirsey remitted a monthly pr emium payment commensurate with a Standard Plus policy carrying a$165.00 annual premium, Mr. Keirsey’s application, even with the incomplete question, does not constitute any evidence that he applied for the “lowest premiu m rate,” a rate for which he knew he did not qualify. Having rejected each of Banner’s arguments, we conc lude that the policy was unconditionally delivered to the Imkes on Augus t 1, 2001. Consequently, the policy was in effect at the time of Mr. Keirsey’s d eath and the district court properly dismissed Banner’s claims against the Imke s, all of which were predicated on the conditional receipt.-11-

III. CONCLUSION The order of the district court granting summary ju dgment in favor of the Imkes is affirmed

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge