‐1‐ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

METLIFE INVESTORS USA INSURANCE 

COMPANY, 

 Plaintiff, 

 vs. 

ESTATE OF MELINDA LINDSEY, 

STEVEN L. LINDSEY and JULIE 

KIRBY, in her capacity as 

Personal Representative of the 

Probate Estate of Melinda 

Lindsey, 

 Defendants, 

________________________________

ESTATE OF MELINDA LINDSEY and 

JULIE KIRBY, in her capacity as 

Personal Representative of the 

Probate Estate of Melinda 

Lindsey, 

 Defendants/Counter-Plaintiffs,

 vs. 

METLIFE INVESTORS USA INSURANCE 

COMPANY, 

 Plaintiff/Counter-Defendant. 

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

) 

NO. 2:16–CV-00097 

 

OPINION AND ORDER

 This matter is before the Court on: Defendants/CounterPlaintiffs Estate of Melinda Lindsey and Julie Kirby in Her 

Capacity as Personal Representative of the Probate Estate of 
‐2‐ 

Melinda Lindsey’s Motion to Summary Judgment, filed on June 12, 

2017 (DE #41); Plaintiff’s Rule 56(d) Motion to Deny or Defer 

Defendants’ Motion for Summary Judgment, filed by MetLife 

Investors USA Insurance Company on June 16, 2017 (DE #44); and 

Defendants/Counter-Plaintiffs Estate of Melinda Lindsey and Julie 

Kirby in Her Capacity as Personal Representative of the Probate 

Estate of Melinda Lindsey’s Request for Oral Argument on Motion 

for Summary Judgment, filed on July 24, 2017 (DE #58). For the 

reasons set forth below, Defendants/Counter-Plaintiffs’ motion for 

summary judgment (DE #41) is DENIED. Plaintiff’s motion to deny 

or defer Defendants’ motion for summary judgment (DE #44) is 

DENIED. Defendants/Counter-Plaintiffs’ request for oral argument 

(DE #58) is DENIED. 

BACKGROUND 

 Plaintiff MetLife Investors USA Insurance Company (“MetLife”) 

seeks rescission of a term life insurance policy (“Policy”) issued 

to decedent Melinda Lindsey (“Lindsey”) based on allegedly 

material misrepresentations and/or omissions she made in the 

Policy application. Defendants/Counter-Plaintiffs Estate of 

Lindsay and Julie Kirby in her capacity as personal representative 

of the probate estate of Lindsey (together, “Estate”) move for 

summary judgment on the grounds that MetLife failed to properly 

rescind the Policy by retaining the insurance premiums when it 

initiated the suit, and by not depositing the premiums with the 
‐3‐ 

Court. MetLife filed a motion to deny or defer the Estate’s motion 

for summary judgment based on Federal Rule of Civil Procedure 

56(d). These motions are fully briefed and are ripe for 

adjudication. The Estate also filed a request for oral argument 

on its motion for summary judgment. 

DISCUSSION 

Request for Oral Argument 

At the outset, the Court will address the Estate’s request 

for oral argument on its motion for summary judgment. (DE #58.) 

Pursuant to Local Rule 7-5, the Court may “grant or deny a request 

for oral argument or an evidentiary hearing in its discretion.” 

N.D. Ind. L.R. 7-5(c)(1). Here, the parties' memoranda have 

sufficiently apprised the Court of the issues at hand, and the 

Court does not believe that oral argument is necessary. Therefore, 

the Court DENIES the Estate’s request for oral argument (DE #58), 

and turns to the merits of the motions. 

Undisputed Facts 

On January 2, 2014, Lindsey completed and signed an 

application for a term life insurance policy with an accidental 

death benefit rider by MetLife (“Policy”). As part of her 

application, Lindsey responded to a series of questions regarding 
‐4‐ 

her medical history and her spouse’s life insurance coverage. 

MetLife issued the Policy to Lindsey on March 26, 2014.1

On January 16, 2015, Lindsey was shot and killed. Her death 

occurred during the contestable period of the Policy. Lindsey’s 

spouse, Steven Lindsey, made a claim for the Policy benefits as 

the named beneficiary. Steven Lindsey was eventually convicted of 

Lindsey’s death and is currently incarcerated. The Estate made a 

claim for the Policy benefits on the basis that it obtained a 

wrongful death judgment against Steven Lindsey for the Lindsey’s 

death. As part of its review of the claims for the Policy benefits, 

MetLife found what it believes to be material misrepresentations 

and omissions in Lindsey’s application. 

In a letter dated June 25, 2015, MetLife denied Steven 

Lindsey’s claim for death benefits, and notified him that MetLife 

was exercising its right to void the Policy, and that all premiums 

paid as of that date, with interest, would be forwarded to him 

under separate cover. MetLife sent a similar letter to the Estate, 

indicating that the premium refund was being sent to Steven 

Lindsey. The Estate responded on June 29, 2015, requesting that 

premium refunds be forwarded to the Estate, rather than Steven, 

who at that time was awaiting trial for Lindsey’s murder. On July 

                                                            

1 The Court notes that while the parties identify disputes of fact 

relating to issuance of the Policy, these disputes are not material 

for the purpose of the Estate’s motion for summary judgment. 
‐5‐ 

6, 2015, MetLife sent a check to Steven Lindsey in the amount of 

$907.05, representing a premium refund plus interest. On July 20, 

2015, MetLife sent a check to the Estate for the same amount. On 

January 19, 2016, the Estate returned the premium refund check to 

MetLife, and notified MetLife that it intended to contest the 

denial of the Policy. MetLife acknowledged the Estate’s return of 

the check in correspondence dated January 25, 2016. On February 

24, 2016, MetLife stopped payment on the checks that it had sent 

to Steven Lindsey and the Estate. 

On March 16, 2016, MetLife filed the instant lawsuit seeking 

rescission of the Policy. The First Amended Complaint for 

Rescission (“Complaint”) alleges that Lindsey made material 

misrepresentations and/or omissions in her application for the 

Policy, that MetLife relied to its detriment on her 

representations, and that MetLife would not have issued the Policy 

if Lindsey had accurately and fully disclosed all necessary 

information and made correct and complete representations in the 

application. (DE #14.) The Complaint alleges that the 

misrepresentations were fraudulent and/or material, entitling it 

to rescind the Policy. The Complaint also alleges that “[o]n June 

25, 2015, MetLife provided timely written notice to the Defendants 

that the Policy is considered void and MetLife refunded all 

premiums paid as of that date, with interest.” (Id., ¶24.) 
‐6‐ 

The Estate answered the Complaint and filed counterclaims 

against MetLife. On June 30, 2016, MetLife filed its answer to 

the Estate’s counterclaims, asserting as a defense that “MetLife 

properly and timely determined the Policy initially issued to the 

Decedent was void and/or voidable and should be rescinded based on 

misrepresentations and/or omissions in the Decedent’s insurance 

application.” (DE #21, at 13.) In September 2016, Magistrate 

Judge Martin held the Rule 16 preliminary pretrial conference, and 

set discovery and mediation deadlines. In May 2017, Magistrate 

Judge Martin granted the parties’ motion to extend discovery 

deadlines; the close of fact discovery was set for August 15, 2017, 

and the close of all discovery was set for February 15, 2018. No 

deadline was set for the filing of dispositive motions. 

On June 12, 2017, the Estate filed the instant motion for 

summary judgment. (DE #41.) At that time, the parties were still 

engaged in discovery, and the Estate had yet to take the 

depositions of certain MetLife employees. On June 16, 2017, 

MetLife filed the instant motion to deny or defer the Estate’s 

motion for summary judgment (DE #44), as well as a motion for leave 

to deposit funds with the Clerk (DE #43). On July 27, 2016, 

Magistrate Judge Martin granted MetLife’s motion for leave to 

deposit funds with the Clerk, noting that “[a]ccepting deposit of 

the funds is therefore appropriate but in no way addresses the 

timeliness and effectiveness of MetLife’s attempted rescission.” 
‐7‐ 

(DE #60 at 2.) On September 1, 2017, Magistrate Judge Martin 

ordered that all discovery-related deadlines in this matter be 

stayed pending the Court’s decision on the instant dispositive 

motions. (DE #65.) 

Rule 56(d) Motion 

In general, a party may file a motion for summary judgment at 

any time after the case is initiated until thirty days after the 

close of discovery. Fed. R. Civ. P. 56(b). Thus, a party can 

move for summary judgment before discovery is completed. Am. 

Nurses' Ass'n v. State of Ill., 783 F.2d 716, 729 (7th Cir. 1986). 

Here, the Estate filed a motion for summary judgment before the 

close of discovery on the issue of whether MetLife failed to 

properly rescind the Policy by failing to tender the premiums to 

the Court in a timely manner. 

MetLife argues that the Court should deny or defer the 

Estate’s motion for summary judgment under 56(d) of the Federal 

Rules of Civil Procedure. Rule 56(d) states that “[i]f a nonmovant 

shows by affidavit or declaration that, for specified reasons, it 

cannot present facts essential to justify its opposition [of a 

motion for summary judgment], the court may: (1) defer considering 

the motion or deny it; (2) allow time to obtain affidavits or 

declarations or to take discovery; or (3) issue any other 

appropriate order.” Fed. R. Civ. P. 56(d). To succeed, the party 

seeking the protection of Rule 56(d) must “state the reasons why 
‐8‐ 

the party cannot adequately respond to the summary judgment motion 

without further discovery and must support those reasons by 

affidavit.” Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 

627-28 (7th Cir. 2014) (quoting Deere & Co. v. Ohio Gear, 462 F.3d 

701, 706 (7th Cir. 2006)). The party’s affidavit must demonstrate 

“how postponement of a ruling on the motion will enable [it], by 

discovery or other means, to rebut the movant’s showing of the 

absence of a genuine issue of fact.” First Specialty Ins. Corp. 

v. Supreme Corp., No. 3:12-CV-186-JTM-MGG, 2017 WL 2591384, at *2 

(N.D. Ind. June 14, 2017) (quoting Korf v. Ball State Univ., 726 

F.2d 1222, 1230 (7th Cir. 1984)). “A party . . . may not use [Rule 

56(d)] to gain a continuance where he has made only vague 

assertions that further discovery would develop genuine issues of 

material fact.” Id. (quoting Grundstad v. Ritt, 166 F.3d 867, 873 

(7th Cir. 1999)). 

Here, MetLife submits the affidavit of Tina Bengs (“Bengs 

Affidavit”) in support of its Rule 56(d) motion. (DE #45-1.) The 

Bengs Affidavit details the history of the discovery in this matter 

and communications between the parties related thereto, including 

the parties’ delays in producing discovery responses. MetLife 

does not argue, and the Bengs Affidavit does not identify, any 

need for discovery pertaining to the limited issue addressed in 

the Estate’s motion for summary judgment, that is, whether MetLife 

waived its rescission claim by not tendering the premiums to the 
‐9‐ 

Court in a timely manner. Rather, the facts regarding MetLife’s 

initial tender of the premiums to the Estate, the Estate’s return 

of the premiums, MetLife’s initiation of the lawsuit for rescission 

and subsequent assertion of affirmative defenses, and MetLife’s 

tender of the premiums to the Court, are undisputed. MetLife does 

not explain what “facts essential to justify its opposition” to 

the Estate’s motion for summary judgment that it might be able to 

extract from outstanding or additional discovery. Accordingly, 

MetLife’s Rule 56(d) motion is denied. 

Motion for Summary Judgment 

Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

dispute of material fact exists when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the 

parties makes summary judgment inappropriate; “[o]nly disputes 

over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary 

judgment.” Id. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 
‐10‐ 

in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). 

A party opposing a properly supported summary judgment motion 

may not rely on allegations in her own pleading but rather must 

“marshal and present the court with the evidence she contends will 

prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 

651, 654 (7th Cir. 2010). “[I]nferences relying on mere 

speculation or conjecture will not suffice.” Stephens v. Erickson, 

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the 

nonmoving party fails to establish the existence of an essential 

element on which he bears the burden of proof at trial, summary 

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th 

Cir. 2006). 

The Estate argues that MetLife waived its rescission claim 

because it failed to tender the premiums to the Court in a timely 

manner. Under Indiana law, when an insurer seeks to rescind a 

policy based on a material misrepresentation in an application, 

generally the insurer “must first make a tender of the full amount 

of premiums paid under the policy. This is to restore the parties 

to the position they were in prior to the contract by returning 

the consideration the insurance company has received.” Am. 

Standard Ins. Co. v. Durham, 403 N.E.2d 879, 881 (Ind. Ct. App. 

1980) (citations omitted). “[A]n insurer must tender back any 

consideration paid to the beneficiary named in the policy,” and 
‐11‐ 

if, as here, “the beneficiary refused to accept the consideration, 

the money must be brought into court for use of the beneficiary or 

the fraud will be waived.” Gary Nat. Bank v. Crown Life Ins. Co.,

392 N.E.2d 1180, 1181 (Ind. Ct. App. 1979) (citation omitted). 

The Indiana Supreme Court reaffirmed this rule in 2013, stating 

that “an insurer must first offer to return the premiums it has 

collected from the insured within a reasonable time after the 

discovery of the alleged breach. . . . Failure to offer such 

return of premiums, or if refused, to pay it into court, 

constitutes a waiver of the alleged fraud.” Dodd v. Am. Family 

Mut. Ins. Co., 983 N.E.2d 568, 570 (Ind. 2013). When the facts 

are undisputed, “[w]hat constitutes a reasonable time period in 

which to tender such premiums becomes a question of law.” Gary 

Nat. Bank, 392 N.E.2d at 1182 (citation omitted). Here, the 

parties do not dispute that MetLife’s initial tender of the 

premiums to the Estate was timely. However, the Estate returned 

the un-negotiated check to MetLife before MetLife initiated this 

lawsuit for rescission of the Policy, and did not tender the 

premiums to the Court until after the Estate filed the instant 

motion for summary judgment. Thus, the issue is whether MetLife’s 

second tender of the premiums was timely. 

Both parties rely on Gary National Bank v. Crown Life 

Insurance Company in support of their respective positions. In 

that case, a beneficiary sued Crown Life Insurance Company 
‐12‐ 

(“Crown”) after Crown denied a claim for death benefits based on 

the decedent’s fraud in procuring the policy. 392 N.E.2d at 1181. 

Crown had tendered the premiums to the beneficiary when it denied 

the claim. After Crown answered the complaint and asserted the 

affirmative defense of misrepresentation, the beneficiary returned 

the un-negotiated check for the premiums to Crown. The beneficiary 

eventually filed a motion for summary judgment, arguing that Crown 

could not raise the affirmative defense of misrepresentation 

because Crown had failed to tender the premiums to the court. 

Crown then tendered the premiums to the court, raising the issue 

as to whether Crown’s second tender was timely. The lower court 

denied the beneficiary’s motion. On appeal, the Indiana Court of 

Appeals found that Crown’s initial tender of the premiums and 

accompanying letter to the beneficiary were adequate to inform the 

beneficiary that it elected to void the policy, and that “Crown 

was in total compliance with the law for so long as the beneficiary 

retained the tender of the premiums.” Id. Crown’s “duty to tender 

the premiums into court” did not arise until after the unnegotiated check was returned, which occurred after the 

beneficiary had initiated the suit and Crown had pled its 

affirmative defense. Id. Holding that Crown’s second tender of 

the premiums to the court was timely, the court explained: 

One purpose of tendering premiums into court is to 

facilitate at the trial on the merits, a judicial 

determination of which party is entitled to the sums. 
‐13‐ 

Because rescission is an equitable remedy, equity 

demands that the party obtaining such relief restore the 

status quo by returning any consideration paid. See:

Prudential Insurance Co. v. Smith, [108 N.E.2d 61 (Ind. 

1952)]. At the time Crown paid the premiums into court, 

both parties had disclaimed any rights thereto. While 

Crown could have been more diligent in making the second 

tender, the funds were placed into court custody prior 

to any pretrial or trial on the merits. The evidence 

shows that tender was made prerequisite to asserting the 

defense of fraud and that Crown was unequivocal in its 

election to rescind the insurance policy. Further, it 

must be noted that appellant was less than diligent in 

refusing acceptance of the initial check and returning 

it to Crown. 

Id. at 1182. 

According to MetLife, Gary National establishes that its 

tender of the premiums to the Court was timely. As in Gary 

National, the evidence shows that MetLife elected to rescind the 

Policy and tendered the premiums to the Estate. The Estate kept 

the check for the premiums for several months before returning it 

to MetLife. As in Gary National, MetLife tendered the premiums to 

the court after the Estate filed a motion for summary judgment on 

this issue, but prior to any pretrial or trial on the merits. At 

the time MetLife paid the premiums into court, both parties had 

disclaimed any rights thereto. 

The Estate maintains that Gary National does not support the 

position that MetLife’s tender was timely. The Estate acknowledges 

that “there was no delay in selecting [MetLife’s] remedy” of 

rescission; rather, the Estate claims that MetLife delayed “in 

being unequivocal in properly presenting that request.” (DE #57 
‐14‐ 

at 11.) It argues that “[t]he law governing rescission required 

MetLife to deposit with this Court the returned premiums prior to 

and no later than the time it initiated the suit on March 16, 

2016.” (Id. at 8 (citing Smith, 108 N.E.2d at 65).) But the case 

law cited by the Estate does not address the issue of whether a 

“second tender,” i.e., tendering the premiums to the court 

following refusal thereof by a beneficiary, is timely. In Smith, 

the insurer “never paid the premiums into court prior to trial. 

There it was decided that payment into court after entry of 

judgment was too late.” Gary Nat. Bank, 392 N.E.2d at 1182 

(distinguishing Smith). Aside from Gary National, the Estate does 

not identify any other Indiana case that addresses whether a second 

tender was timely. See id. (distinguishing Indiana cases because 

they did not address the timeliness of a “second tender” to the 

court). 

Indiana law requires that an insurer first offer to return the 

premiums it has collected from the insured within a reasonable 

time after the discovery of the alleged breach, and that if 

refused, they must pay it into court, or waive the alleged fraud. 

See Dodd, 983 N.E.2d at 570. The parties do not dispute that 

MetLife tendered the premiums to the Estate within a reasonable 

time after learning of the alleged misrepresentations. The Estate 

returned those premiums after holding them for several months. 

MetLife initiated this lawsuit seeking rescission. While MetLife 
‐15‐ 

delayed in making its second tender by submitting the premiums to 

the Court, it did so before a pretrial or trial on the merits. 

Applying Gary National, the Court finds that MetLife’s second 

tender of the premiums to the Court was timely. 

CONCLUSION 

 For the reasons set forth above, Defendants/CounterPlaintiffs’ motion for summary judgment (DE #41) is DENIED. 

Plaintiff’s motion to deny or defer Defendants’ motion for summary 

judgment (DE #44) is DENIED. Defendants/Counter-Plaintiffs’ 

request for oral argument (DE #58) is DENIED. 

DATED: December 4, 2017 /s/ RUDY LOZANO, Judge 

 United States District Court