UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACQUELINE RAINES DUNLAP,

Administratrix of the estate of

MACEO RAINES MCEACHERN and

VELA RAINES MCEACHERN,

Plaintiff-Appellant,

No. 95-1942

v.

THE GREAT-WEST LIFE ASSURANCE

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Rockingham.

N. Carlton Tilley, Jr., District Judge.

(CA-93-225)

Argued: February 1, 1996

Decided: April 2, 1996

Before HALL and ERVIN, Circuit Judges, and BLAKE,

United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Gary Buckner, SHARPE & BUCKNER, Rockingham, North Carolina, for Appellant. George Kimmons Evans, Jr.,
CANSLER, LOCKHART, CAMPBELL, EVANS & GARLITZ,

P.A., Charlotte, North Carolina, for Appellee. ON BRIEF:

R. Michael Allen, CANSLER, LOCKHART, CAMPBELL, EVANS

& GARLITZ, P.A., Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jacqueline Raines Dunlap, administratrix of the estates of Maceo

Raines McEachern and his mother Vela Raines McEachern, appeals

from the order of the district court granting summary judgment in

favor of the Great-West Life Assurance Company on Dunlap's claim

that the Company negligently issued an insurance policy in an excessive amount on the life of Maceo McEachern and thereby caused the

murder of both McEacherns. For the reasons that follow, we affirm

the decision of the district court.

I.

We review the grant of summary judgment de novo . Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). "Summary judgment is justified if, from the totality of the evidence

presented, including pleadings, depositions, answers to interrogatories, and affidavits, the court is satisfied that there is no genuine factual issue for trial and the moving party is entitled to judgment as a

matter of law." Sylvia Development Corp. v. Calvert County, 48 F.3d

810, 817 (4th Cir. 1995); see Fed. R. Civ. P. 56(c). While the court

must "draw any permissible inference from the underlying facts in the

light most favorable to the party opposing the motion," Sylvia

Development, 48 F.3d at 817 (internal quotations and citations omitted), "the non-moving party must do more than present a `scintilla' of

evidence in its favor. . . . [It] must present sufficient evidence . . . that

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`reasonable jurors could find by a preponderance of the evidence' for

the non movant. . . . [I]f the evidence is`merely colorable' or `not significantly probative,' a motion for summary judgment may be

granted." Id. at 818 (citations omitted).

II.

This is a diversity case governed by the law of North Carolina. The

insurance involved was a "key-man" policy issued on the life of Mr.

McEachern pursuant to his purchase of the rights to a sports drink called Pro-Formance from Gymbags, a company owned by Joey Caldwell and his wife Barbara. The purchase was to take place over three

years and included royalty payments to Gymbags. The letter purchase

agreement between Mr. McEachern and Gymbags contained a clause

in which McEachern acknowledged that Gymbags intended to obtain

an insurance policy on McEachern's life for the benefit of Gymbags

in an amount of "not less than $1,000,000." J.A. at 81.1

Randy Riggins, an insurance agent formerly married to Barbara

Caldwell, in fact obtained two policies on McEachern's life, one in

the amount of $1,500,000 from Sun Life Assurance Company2 and

one in the amount of $500,000 from Great-Western. A short time later

the McEacherns were murdered.3 Great-West paid the proceeds of the

policy to Gymbags. Eventually, however, Joey and Barbara Caldwell

were prosecuted and convicted for the two murders. This lawsuit followed.

In granting Great-West's motion for summary judgment, the district court examined the law of North Carolina and persuasive authority from other States and concluded:

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1 Perhaps due to typographical error, the district court opinion cites this

at one point as an amount "not to exceed $1,000,000." J.A. at 63.

2 Sun Life was sued separately and apparently settled its case. Brief of

Appellee at 2.

3 It appears that Mrs. McEachern was killed only because she happened

to be with her son when he was shot.

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From these cases, it appears that a claim of negligent policy

issuance will arise where 1) the beneficiary has no insurable

interest in the life of the insured, . . . 2) the insurance company had actual knowledge of a plan to murder the insured

for the proceeds, or 3) the insured did not consent to the policy and the insurance company had actual knowledge that

the signature of the insured had been forged. Plaintiff has

not asserted that Great-West had actual knowledge of the

Caldwell's [sic] plans to murder Mr. McEachern. Similarly,

Plaintiff acknowledges that none of Mr. McEachern's signatures to the applications, medical authorization forms, or the

February 1 letter agreement authorizing Gymbags' obtaining

life insurance on his life, were forged. The only theory

remaining to Plaintiff is that Gymbags did not have an insurable interest in the life of Mr. McEachern.

J.A. at 60. Like the district court, we do not reach the question

whether, in some circumstances, the amount of a requested life insurance policy could so greatly exceed any reasonable insurable interest

as to put the company on notice that "a murderous plot was afoot."

J.A. at 63. In light of the contract for the purchase of the rights to ProFormance, however, it cannot seriously be disputed that Gymbags had

a substantial insurable interest in the life of Mr. McEachern. Having

carefully reviewed the record and considered counsels' briefs and oral

arguments, we affirm on the reasoning set forth in the opinion of the

district court.

AFFIRMED

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