Laschkewitsch v. Lincoln Life & Annuity Distribs., Inc.

47 F.Supp.3d 327

John B. LASCHKEWITSCH as administrator for the Estate of Ben Laschkewitsch, Plaintiff

v.LINCOLN LIFE AND ANNUITY DISTRIBUTORS, INC., d/b/a/ Lincoln Financial Group, Inc., Defendant.

No. 5:13–CV–315–BO.

United States District Court, E.D. North Carolina, Western Division.

Signed Sept. 15, 2014.

Filed Sept. 16, 2014.

John Laschkewitsch, Fayetteville, NC, pro se.

Robert R. Marcus, Smith Moore Leatherwood LLP, Charlotte, NC, Matthew Nis Leerberg, Smith Moore Leatherwood LLP, Raleigh, NC, for Defendant.

ORDER

TERRENCE W. BOYLE, District Judge.

This matter is before the Court on parties' cross motions for summary judgment [DE 83 and 87], various motions to seal [DE 86, 100, 109], defendant's motion to exclude evidence [DE 96], and plaintiff's motion to exclude [DE 108]. All of the motions are now ripe for adjudication. For the following reasons, defendant's motions to seal are GRANTED, plaintiff's motion to seal is GRANTED IN PART and DENIED IN PART, defendant's motion to exclude is GRANTED, plaintiff's motion to exclude is DENIED, defendant's motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED.

BACKGROUND

This case arises from an insurance dispute involving multiple insurance companies, including defendant-counterclaimant, The Lincoln National Life Insurance Company (“Lincoln”). The dispute here is over a life insurance policy issued by Lincoln covering the life of Ben Laschkewitsch, plaintiff-counter-defendant's brother. The undisputed facts before this Court on the motions for summary judgment reveal defendant's scheme to profit off of the illness and death of his brother, for his sole personal gain, to the tune of $3.9 million. The facts reveal that defendant contrived to acquire $3.9 million in potential life insurance payouts on the life of his brother who was terminally ill with Amyotrophic Lateral Sclerosis (“ALS”). It is clear that defendant was aware that his brother was suffering from ALS at the time he helped his brother to apply for life insurance and that he went to great lengths to falsify the information provided to various life insurance companies, including Lincoln. In the Lincoln application, Mr. Laschkewitsch lied about his brother's family medical history as well as his brother's medical condition and healthcare providers; he grossly misstated the amount of “in force” insurance on his brother's life; he misstated the status of pending life insurance applications; he lied to Lincoln in emails about withdrawing his pending applications; and he provided false information about his brother's employment and contact information. Further, Mr. Laschkewitsch submitted fraudulently altered medical records in which his brother's family history of ALS was carefully erased and replaced with an innocuous medical condition.

Based on Mr. Laschkewitsch's fraud, Lincoln issued an $800,000 life insurance policy on the life of his brother (the “Insured”). Within the two-year contestability period, the Insured died. John Laschkewitsch, as policy owner, agent, and beneficiary, made a claim for benefits. During the course of the investigation into the claim for benefits, Lincoln learned for the first time about the Insured's illness and John Laschkewitsch's moneymaking scheme. Lincoln then denied the claim for benefits and rescinded the policy.

Mr. Laschkewitsch then filed this action, suing Lincoln for denying his fraudulent claim. In response, Lincoln brought counterclaims seeking a remedy for the fraud perpetrated by Mr. Laschkewitsch. Mr. Laschkewitsch was also sued by another one of the insurance companies caught up in his scheme, the ReliaStar Life Insurance Company. See Reliastar Life Ins. Co. v. Laschkewitsch, No. 5:13–CV–210 (hereinafter the “ReliaStar Litigation”).

DISCUSSION

I. MOTIONS TO SEAL.

Local Rule 26.1(a)(1) requires that medical records not be open to inspection or copying by any persons except the parties and their attorneys. It further requires the filing of any such records to be accompanied by a motion to seal. Accordingly, defendant's motion to seal [DE 86] is granted. DE 84 and DE 85 are hereby sealed as they contain medical records or discuss medical records. Defendant's motion to seal [DE 100] is also granted. DE 97, DE 98, and DE 99 are hereby sealed as they contain medical records or discuss medical records. Plaintiff's motion to seal [DE 109] is granted in part and denied in part. The documents plaintiff seeks to seal are properly sealed as they contain medical records or discuss medical records. However, a motion to seal is not a vehicle to submit new evidence to the Court. Unlike defendant's motions to seal which refer to exhibits already submitted to the Court, plaintiff attempts to include additional exhibits as an attachment to his motion to seal. This will not be allowed and the Court will not consider the exhibits to DE 109. However, as they contain medical records or discuss medical records, the Court orders that they be permanently sealed. In addition, Exhibits B, C, D, E, and H of DE 89, DE 101, exhibits E and F of DE 101, DE 89–1, DE 89–2, DE 89–3, DE 89–4, and DE 89–5 are hereby sealed.

II. MOTIONS TO EXCLUDE EVIDENCE.

Both defendant and plaintiff have filed motions to exclude evidence and unsupported allegations that they allege were present in supporting memorandums, responses and replies to the parties' motions for summary judgment. Additionally plaintiff seeks to exclude defendants' expert witness, John Carreira.

A. Defendant's Motion.

Lincoln objects to and requests that this Court disregard the following documents: (1) the “Affidavit of Trust” of Imelda Laschkewitsch [DE 89–2]; (2) the “Affidavit of John M. Laschkewitsch” [DE 89–4]; (3) the “Affidavit of ALS Facts & Figures” of Jerry Dawson [DE 89–5]; and several unsubstantiated statements made in plaintiff's memorandum of law in support of plaintiff's motion for summary judgment [DE 88].

Lincoln asks the Court to exclude the affidavit of Imelda Laschkewitsch, Ben Laschkewitsch's widow because she essentially recanted the portions of her affidavit that defendant relies on. Plaintiff attempts to explain away Imelda's recantation, but her deposition testimony is clearly in conflict with her affidavit. As the deposition testimony occurred after the affidavit was signed, the inconsistencies should be read in favor of the deposition testimony. Accordingly, the Court excludes Imelda's affidavit from consideration.

Lincoln also asks the Court to exclude the affidavit of John M. Laschkewitsch because it was not produced in response Lincoln's January 3, 2014 request for “[a]ll statements or affidavits taken or received by you or your representative from any person containing information or knowledge relating to the factual allegations raised in your Complaint.” [DE 96–14]. Plaintiff responded on February 6, 2014 stating that he did not have any undisclosed materials in his possession. [DE 96–15]. However, based on the filings in the ReliaStar case, it is known that plaintiff had in his possession an “Affidavit of John M. Laschkewitsch” signed and dated January 5, 2011. [DE 99–6]. Plaintiff never produced this affidavit to Lincoln and therefore cannot introduce it now. Fed.R.Civ.P. 37(b)(2)(A)(ii). Accordingly the Court excludes John M. Laschkewitsch's affidavit.

Lincoln asks the Court to exclude the “Affidavit of ALS Facts & figures” of Jerry Dawson from consideration because Dawson is not a fact witness in the case and defendant is improperly attempting to use the affidavit as expert evidence when Dawson was not designated as an expert witness.¹ Plaintiff's reasoning for Dawson not being a designated expert—that Dawson did not want to be an expert—is of no consequence here. Further the fact that Dawson's affidavit contains restatements from the National ALS Association's website and not personal opinions is of no consequence. There are rules of evidence that guide parties in submitting evidence to the Court and those rules must be complied with. If defendant wanted the information in Dawson's affidavit to be considered by the Court, defendant should have designated Dawson an expert. This was not done, so the Court excludes the Dawson affidavit from consideration.

Finally, Lincoln asks the Court to exclude all of defendant's unsupported allegations concerning what the insured believed or was told by doctors as well as various other allegations that are likewise unsupported by any proper summary judgment evidence. The Court will not consider any statements or arguments that are not supported by proper summary judgment evidence.

B. Plaintiff's Motion.

Plaintiff's motion to exclude is not his first meritless motion before the Court. [See ReliaStar Litigation DE 100; 130; 136]. However, plaintiff persists in lodging meritless allegations and complaints at every turn in this litigation. Here, plaintiff takes particular objection to defendant's arguments contained in its supporting memoranda surrounding the pending motions for summary judgment. None of defendant's objections have any merit at all.

Therefore, the Court denies plaintiff's motion in its entirety here. The Court is able to separate defendant's arguments and conclusions from the supporting documents and facts. Plaintiff offers no meritorious challenge to the summary judgment evidence relied upon by defendant. Where plaintiff attacks the evidence, his attacks have no merit. Accordingly, plaintiff's motion is denied in its entirety.

III. MOTIONS FOR SUMMARY JUDGMENT.

A motion for summary judgment cannot be granted unless there are no genuine issues of material fact for trial. Fed.R.Civ.P. 56 ; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must demonstrate the lack of genuine issue of fact for trial and if that burden is met, the party opposing the motion must “go beyond the pleadings” and come forward with evidence of a genuine factual dispute. Celotex, 477 U.S. at 324, 106 S.Ct....