United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
LEAVE TO AMEND AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
F. Cox United States District Court Judge
had a long-term care insurance policy with Defendant. But
when his children sought a coverage determination on the
policy, Defendant informed them that the policy had been
terminated. So, Plaintiff sued Defendant, alleging breach of
contract, fraudulent misrepresentation, and a statutory
claim. Defendant has moved to dismiss and Plaintiff, in turn,
seeks leave to amend his complaint.
reasons below, the Court shall grant Plaintiff's motion
for leave to amend. The Court shall also grant
Defendant's motion to dismiss in part and deny it in
part. The Court shall deny the motion to dismiss as to the
breach of contract claim, but it shall grant the motion to
dismiss as to the fraudulent misrepresentation and statutory
Carl Waskul initially filed this suit in state court against
Defendant Metropolitan Life Insurance Company. Defendant then
removed the case to this Court (Doc. # 1) and, on January 12,
2018, moved to dismiss under Rule 12(b)(6) (Doc. # 3). On
February 5, 2018, Plaintiff responded to Defendant's
motion (Doc. # 6). That same day, he also moved for leave to
file an amended complaint, which he attached to his motion
(Doc. # 7). Defendant opposed the motion for leave to amend,
arguing that it would be futile (Doc. # 11). The Court held a
hearing on these motions on July 12, 2018.
Plaintiff seeks leave to amend his complaint, the Court shall
consider the facts as alleged in his proposed complaint. That
way, the Court can assess whether leave to amend would be
futile, see Benzon v. Morgan Stanley Distributors,
Inc., 420 F.3d 598, 613 (6th Cir. 2005) (noting that
although leave to amend “shall be freely given when
justice so requires, ” denial may be appropriate if the
amendment is futile), in which case Defendant's Motion to
Dismiss should be granted. See Riverview Health Institute
LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.
2010) (“A proposed amendment is futile if the amendment
could not withstand a Rule 12(b)(6) motion to
dismiss.”). If not, leave to amend should be granted.
Thus, the Court relies on the facts set forth in
Plaintiff's proposed first amended complaint (Doc. # 7,
1996, Plaintiff purchased a long-term care insurance contract
from Defendant.Proposed Amended Complaint, ¶ 7. The
coverage included Plaintiff's expenses for nursing home
care, capped at $200 per day, and a maximum lifetime benefit
of $511, 000. Id. at ¶ 11. The policy was
Guaranteed Renewable, meaning Plaintiff merely had to pay the
premiums to keep the policy in force and that Defendant could
not cancel the policy. Id. at ¶ 8. Plaintiff
paid his premiums for more than 19 years. Id. at
March 2003, Plaintiff designated his son William as his
“Lapse Designee” to receive notice of lapse or
termination of the policy for non-payment of premium.
Id. at ¶ 12. The Lapse Designee Form stated:
If you elect this option, TIAA-CREF life will notify the
person you designate that your policy is in danger of lapsing
due to lack of premium payment. When this option is chosen,
TIAA-CREF life will extend your 31-day grace period by an
additional 30 days from the date we notify your designee
about the potential lapse of your policy. We will not extend
your grace period unless you elect this option.
I understand that I have the right to designate at least one
person other than myself to receive notice of lapse or
termination of this long-term care insurance policy for
nonpayment of premium. I understand that notice will not be
given until 30 days after a premium is due and unpaid.
in June 2014, Plaintiff authorized Defendant to disclose
personal information to William and his son Terrance. The
Disclosure Authorization provided:
I hereby authorize Metropolitan Life Insurance Company
(“MetLife”) to disclose my personal heath
information (including demographic, billing, claim, and plan
information) about my MetLife long-term care insurance to the
person(s) listed below to allow that person(s) to assist me
in matters related to my insurance coverage.
alleges that, through this form, he designated William and
his son Terrance as his powers of attorney as to the policy.
Id. at ¶ 13.
August 8, 2015, Plaintiff was diagnosed as cognitively
impaired. Id. at ¶ 14. Three days later, he
completed an application for admission into an assisted
living long-term care ...