‐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’ Motion to Certify Issue for Interlocutory Appeal, 

filed on December 22, 2017 (DE #71). For the reasons set forth 
‐2‐ 

below, Defendants/Counter-Plaintiffs’ motion to certify issue for 

interlocutory appeal is DENIED. 

BACKGROUND 

 Plaintiff MetLife Investors USA Insurance Company (“MetLife”) 

issued a term life insurance policy (“Policy”) to Melinda Lindsey 

(“Lindsey”) in 2014. After Lindsey’s death in 2015, MetLife found 

what it believes to be material misrepresentations and omissions 

in Lindsey’s application for the Policy. MetLife denied the claims 

made for death benefits, and refunded the Policy premiums to 

Defendants/Counter-Plaintiffs Estate of Lindsay and Julie Kirby, 

in her capacity as personal representative of the probate estate 

of Lindsey (together, “Estate”), in July 2015. In January 2016, 

the Estate returned the premium refund check to MetLife, and 

notified MetLife that it intended to contest the denial of the 

Policy. In March 2016, MetLife filed the instant lawsuit seeking 

rescission of the Policy. 

On June 12, 2017, the Estate moved 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 Court. (DE #41.) MetLife 

opposed the motion and deposited the premiums with the Court. The 

Court denied the Estate’s motion for summary judgment on December 

4, 2017. (DE #69.) 
‐3‐ 

The Estate filed the instant motion for leave to certify issue 

for interlocutory appeal on December 22, 2017. (DE #71.) It 

claims that the denial of its motion for summary judgment is 

appropriate for interlocutory review because the Court incorrectly 

relied on Gary National Bank v. Crown Life Insurance Company, 392 

N.E.2d 1180 (Ind. Ct. App. 1979), to find that MetLife’s second 

tender of premiums was timely. The motion has been fully briefed 

and is ripe for review. 

DISCUSSION 

 The instant motion seek permission to appeal prior to entry 

of a final judgment, otherwise known as an interlocutory appeal. 

Interlocutory appeals are governed by Title 28 U.S.C. section 

1292(b), which provides: 

When a district judge, in making in a civil action an 

order not otherwise appealable under this section, shall 

be of the opinion that such order involves a controlling 

question of law as to which there is substantial ground 

for difference of opinion and that an immediate appeal 

from the order may materially advance the ultimate 

termination of the litigation, he shall so state in 

writing in such order. 

28 U.S.C. § 1292(b). The Seventh Circuit’s criteria for 

interlocutory appeals is: (1) there must be a question of law, (2) 

it must be controlling, (3) it must be contestable, (4) its 

resolution must promise to speed up the litigation, and (5) the 

petition to appeal must be filed in the district court within a 

reasonable time after the order sought to be appealed. Ahrenholz 
‐4‐ 

v. Bd. of Tr. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). 

“Unless all these criteria are satisfied, the district court may 

not and should not certify its order to us for an immediate appeal 

under section 1292(b).” Id. at 676. 

Due to its dispositive nature, the Court first considers 

whether there is a “contestable” question of law. In determining 

contestability, the court must examine “the strength of the 

arguments in opposition to the challenged ruling,” which includes 

“examining whether other courts have adopted conflicting positions 

regarding the issue of law proposed for certification.” In re 

Bridgestone/Firestone, Inc. Tires Prods. Liab. Lit., 212 F. Supp. 

2d 903, 909-10 (S.D. Ind. 2002) (citations omitted); see Carlson 

v. Brandt, No. 97 C 2165, 1997 WL 534500, at *6 (N.D. Ill. 1997) 

(“[I]t is beyond dispute that interlocutory appeal is unjustified, 

inefficient, and unnecessary when the movant has not set forth 

substantial conflicting decisions regarding the claimed 

controlling issue of law”). The Estate argues that the Court 

incorrectly applied Gary National to find that MetLife’s second 

tender of the premiums was timely. In Gary National, the Indiana 

Court of Appeals found that the insurer’s second tender of premiums 

was timely where it was made prior to any pretrial or trial on the 

merits. 392 N.E.2d at 1182. The Estate attempted to distinguish 

Gary National based the difference in the timing of the Estate’s 

return of the first tender of premiums, and relied upon case law 
‐5‐ 

addressing the timeliness of an insurer’s tender of premiums in 

the first instance. In its order denying summary judgment, the 

Court noted that Gary National was the only case cited by the 

Estate that addressed the timeliness of an insurer’s second tender 

of premiums, and that Gary National distinguished case law cited 

by the Estate. (DE #69 at 14.) See Gary Nat. Bank, 392 N.E.2d at 

1182 (distinguishing Prudential Insurance Co. v. Smith, 108 N.E.2d 

61 (Ind. 1952), and other Indiana cases because they did not 

address the timeliness of a “second tender” to the court). The 

Estate has not directed the Court to any other court which has 

expressed a difference of opinion on the timeliness of an insurer’s 

second tender of premiums. Thus, the Estate has failed to prove 

that there is a substantial conflict on this issue. See Webster 

v. Ctr. for Diagnostic Imaging, Inc., No. 116CV02677JMSDML, 2017 

WL 5598286, at *3 (S.D. Ind. Nov. 21, 2017) (finding no contestable 

issue for the purposes of interlocutory appeal where defendants 

failed to present any conflicting precedent). 

The Estate has also failed to meet its burden of showing that 

exceptional circumstances justify departure from the Seventh 

Circuit’s general policy of postponing appellate review until 

after the entry of final judgment. See Ahrenholz, 219 F.3d at 

676. Accordingly, this Court exercises its discretion to deny the 

request for interlocutory appeal. See Swint v. Chambers County 

Comm'n, 514 U.S. 35, 47 (1995) ("Congress thus chose to confer on 
‐6‐ 

district courts first line discretion to allow interlocutory 

appeals."); Kuzinski v. Schering Corp., 614 F. Supp. 2d 247, 249 

(D. Conn. 2009) ("Even where [the criteria for an interlocutory 

appeal] are met, the Court retains discretion to deny permission 

for interlocutory appeal."). 

CONCLUSION 

 For the reasons set forth above, Defendants/CounterPlaintiffs’ motion to certify issue for interlocutory appeal (DE 

#71) is DENIED.

DATED: February 15, 2018 /s/ RUDY LOZANO, Judge 

 United States District Court