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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 00968 SEPTEMBER TERM, 2000 ___________________________________

CURTISS B. MITCHELL v.

AARP LIFE INSURANCE PROGRAM NEW YORK LIFE INSURANCE CO.

___________________________________

Hollander, Sonner, Adkins, JJ. ___________________________________

Opinion by Hollander, J. ___________________________________

Filed: September 4, 2001

In this case, we must determine whether Curtiss B. Mitchell, appellant, is the beneficiary of a valid contract of life

insurance issued by the "AARP Life Insurance Program, New York Life Insurance Company" ("New York Life"),1 appellee. On

September 17, 1999, after New York Life refused to pay appellant the death benefit of $15,000 allegedly due under the life

insurance policy that he procured for his late father, George Mitchell, 2 appellant filed suit in the Circuit Court for

Montgomery County.

Appellee subsequently moved for summary

judgment on January 31, 2000, claiming that no life insurance coverage existed when George died, and therefore appellant was not entitled to the insurance proceeds. The trial court granted On April

summary judgment to New York Life on March 28, 2000.

10, 2000, appellant filed a motion to alter or amend, which was denied on May 22, 2000. Appellant, who is pro se here, as he was below, presents two

Appellant sued "AARP Life Insurance Program, New York Life Insurance Company" but, according to appellee, "New York Life is the underwriter of various life insurance policies offered through a trust established by the American Association of Retired Persons (AARP) to provide life insurance to AARP members." Appellee states that "New York Life was the only defendant in the lower court proceeding, and is the only appellee for purposes of this appeal." In view of the common surnames of Curtiss and George Mitchell, we shall refer to George Mitchell by his first name, and to Curtiss Mitchell by his last name.
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questions for our consideration. them as follows:

We have combined and rephrased

Did the trial court err in granting appellee's motion for summary judgment? For the reasons that follow, we shall affirm. FACTUAL BACKGROUND3 George, appellant's father, was born on June 5, 1926. On

February 12, 1999, appellant obtained a Durable Power of Attorney over the affairs of his seventy-three year old ailing father, who was then hospitalized due to his failing health. several days, appellant contacted several Over the next insurance

life

companies in an unsuccessful attempt to obtain life insurance for We note that the record extract does not include the docket entries, the motion for summary judgment, or the opposition to summary judgment. Although appellee prepared an appendix, it did not include these documents. Maryland Rule 8-501(c) states: The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal. It shall include the judgment appealed from; the opinion or jury instructions of the trial court, if any; . . . and such other parts of the record as are designated by the parties . . .
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To be sure, it is not our duty to search the record for pertinent information omitted from the record extract. HEK Plaforms and Hoists, Inc. v. Nationsbank, 134 Md. App. 90, 98 (2000); Miller v. Bosley, 113 Md. App. 381, 391 (1997). In the exercise of our discretion, however, we shall not dismiss the appeal. -2-

his father. According to appellant, the "AARP New York Life Insurance Program had come to [his] attention during one of his visits with his father through a piece of their promotional literature which advertised prompt insurance coverage after the applicant had met a simple three step process . . . ." program was targeted for seniors, Mitchell noted that the and was very alluring."

Mitchell asserts in his brief that "[e]nrollment and coverage was advertised as almost instantaneous after completion of [the] three step process." Because appellee's life insurance plan

seemed "very practical and commonsensical" and was "designed for the benefit of seniors, [with] a very low rejection rate . . .

," appellant and his father "desired immediate coverage . . . ." On behalf of his father, appellant contacted New York Life by telephone on February 28, 1999, to obtain assistance with the application form, titled "Request for Group Insurance." Appellant alleged that he spoke with an agent of appellee about "expeditiously processing a policy of life insurance on his ailing father." He informed appellee's customer service

representative that he was ready to complete the application "right then," but needed assistance with the form. According to

Mitchell, the insurer's agent helped him with the application, but appellant was unable to identify the particular person with

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whom he spoke. The insurance application form contains a section labeled "Coverage Amount Requested." Appellant initially sought $25,000 The "insurer's agent"

in coverage, the maximum amount offered.

advised him, however, that the age of his father precluded George from obtaining life insurance in that amount. As a result,

appellant selected coverage of $15,000, the highest coverage available to George, based on George's age. Appellant named

himself as the sole beneficiary of the requested policy. Section B of the Application is titled "Payment Options," and contains two options for payment. "Option 1," titled

"Automatic Premium Payment," authorizes monthly or quarterly withdrawals from a bank account. Premium Billing," contains two "Option 2," titled "Periodic more choices. In one, the

applicant seeks to be billed, while the other indicates that payment is enclosed. Appellant selected Option 2 and checked the

box that reads: "So coverage can take effect as soon as possible, I enclose a check for my first payment in the amount of _____." In the blank, the application contains the handwritten amount of $151.80. Section D is titled "Statement of Health." It asks the

applicant if he or she has had "treatment for or consulted a physician about . . . emphysema . . . ." On the form, the word

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"emphysema" is circled.

Appellant also checked "yes" to a

question asking if the applicant had been admitted to a hospital in the past two years, adding that George suffered from "Chronic Obstructive Lung Disease & Tracheobronchitis," for which he had "nebulizer treatments, intravenous fluids & antibiotics." Section E of the Application contains the following preprinted statement: I understand that insurance will be effective on the date of the certificate, provided my premium is received during my lifetime and within 31 days of such Insurance Date. I understand that premium payment for insurance does not mean there is any coverage in force before the effective date as specified by New York Life, and that benefits may be denied during the first two years if material facts have been misstated here. I represent that I am an AARP member, and that, to the best of my knowledge and belief, the information on this request is true and complete. (Emphasis added). "George C. Appellant signed the application as follows: Mitchell P.O.A.," and dated it

Mitchell/Curtiss

"2/20/99." At his deposition on January 17, 2000, appellant said he believed the application constituted the "Certificate" referred to in Section E of the application. He explained that he "filled

it out, sent [his] money . . . and no one told [him] that this was not a certificate." He "point[ed]" to a number on the Appellant also

application, "5189624," to support his assertion.

indicated at his deposition that the text of the application -5-

provided that the insurance would be effective "[o]n the date of the certificate." At the summary judgment hearing, however,

Mitchell acknowledged that he never received a certificate from appellee. Appellant claimed that, after completing the application, he asked appellee's customer service representative what he should do to assure immediate life insurance coverage for George.

Mitchell contends that appellee's agent advised him to mail the completed application, along with a power of attorney and the premium payment, to appellee's corporate office. Accordingly,

Mitchell mailed the application, a copy of the power of attorney, and a check dated March 4, 1999, in the amount of $151.80, in payment of the first premium. It is undisputed that New York

Life received the documents on March 9, 1999; the application is stamped "Mar 09 1999." check on that date. George died the next day, March 10, 1999, at approximately 6:30 a.m. At about 8:00 a.m., appellant contacted New York Life At his deposition, appellant Moreover, appellee deposited appellant's

to advise of his father's death.

said that he "never asked for the $150,000 death benefit." On March 11, 1999, appellant again contacted New York Life. He was informed that the application had not been processed or reviewed prior to George's death, and therefore the policy was

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not in effect at the time of George's demise. later, appellee returned the premium payment

Several days of $151.80 to

appellant, with a letter advising that appellee had not approved the insurance application prior to George's death, and thus appellant was not entitled to the death benefit under the policy.

In support of its motion for summary judgment, appellee submitted several documents, including: an affidavit from Daniel J. Rice, the Director of Underwriting for New York Life's AARP Operations, located in Tampa, Florida; a copy of the power of attorney submitted by Mitchell; excerpts from appellant's

deposition; a copy of the insurance application completed by Mitchell; and an excerpt from New York Life's Underwriting

Guidelines.

Rice averred in his affidavit that the Underwriting

Department had not reviewed George's application by the time he died, nor had New York Life issued a conditional receipt or a premium receipt to George. Rice stated that, as a result,

appellee did not approve coverage for George, and no insurance certificate had been issued. Appellant asserted in his opposition to the summary judgment motion that New York Life's brochure advertised an easy

application process that would permit coverage at the "earliest possible date." Moreover, he argued that, in his conversation

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with New York Life's agent, "the terms and conditions for a policy of Life Insurance on the beneficiary's ailing father's life were set out and mutually agreed upon, and those

representations merged with the brochure's representations to form a binding temporary contract." Appellant also claimed that

appellee's agent advised him that if he completed "the Enrollment Form, executed a Durable Power of Attorney, and made out a check for the first premium payment in the sum of $151.80, and mailed the documents to New York Life, he would have a contract for preliminary and temporary insurance coverage for his father." Accordingly, appellant followed the instructions, and the first premium payment of $151.80 was deposited by New York Life on March 9, 1999, one day prior to George's death. Although appellant did not include an affidavit with his opposition, he signed it under oath. In further support of

appellant's opposition, he submitted the New York Life brochure, his check for the first premium payment, and the first page of his letter of June 8, 1999, to A. J. Goergen, a corporate vice president of New York Life, in which appellant described the events that took place. See Md. Rule 2-501(b). In

On March 28, 2000, the court held a motion hearing. granting summary judgment to appellee, the court stated: It is [appellee's] position in this case that -8-

summary judgment is appropriate to be granted by the Court for really three reasons, the first being that no insurance coverage existed at the time of George Mitchell's death. It is the position of [appellee] that the application was merely an offer and that coverage would not take effect until the [appellee] accepted the offer and that the [appellee] did not have the opportunity to accept the offer because of the unfortunate timing of [appellant's father's] death being within a day of the materials being received by New York Life. [Appellee] also argues that there is no situation of temporary insurance coverage because [appellant's father] did not meet any objective standard for insurability, and third, that even if he had met any objective standard for insurability, his application would have been rejected because he failed to meet three subjective requirements of [appellee]. This is all spelled out really in the paperwork that has been very well prepared by both sides in the case and is very complete. It is [appellant's] position that the coverage really took effect when the [appellee] received the application based on the language of the brochure, which he felt was an offer to provide immediate life insurance, and that acceptance of the offer was completed by the mere receipt of the application and the check, and he bases his position on statements that he alleges were made by an agent of [appellee] during a series of phone conversations. I have had an opportunity to review all of the citations which have been submitted by both sides in the case, and I cannot really distinguish this case from the case of Heideman [v.] Northwestern National Life Insurance Company, [546 N.W. 2d 760 (Minn. Ct. App. 1996)], which clearly indicates that the brochure is viewed as a solicitation for offers. This particular brochure said, "Your coverage will take effect on the date shown on your certificate of insurance." Therefore, I think it is clear that a certificate had to be issued by New York Life for them to have formally accepted the risk of this insurance. The case of Heideman's language in the brochure is nearly identical to what is in this case, which has -9-

been interpreted by many Maryland court decisions of the Court of Appeals and the Court of Special Appeals to support the position of [appellee]. So I am satisfied that it is appropriate to grant summary judgment in this case in favor of [appellee]. We shall include additional facts in our discussion. STANDARD OF REVIEW Maryland Rule 2-501 establishes a two-part test for summary judgment. "In deciding a motion for summary judgment . . . the

trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law." Bagwell v. Peninsula Reg'l Med.

Ctr., 106 Md. App. 470, 488 (1995), cert. denied, 341 Md. 172 (1996); see Okwa v. Harper, 360 Md. 161, 178 (2000); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 (1993). Similarly,

in reviewing a grant of summary judgment, we must determine "whether a genuine dispute of material fact exists and then whether the movant is entitled to summary judgment as a matter of law." Williams v. Mayor of Baltimore, 359 Md. 101, 113 (2000);

see Hartford Ins. Co. v. Manor Inn of Bethesda, Inc. , 335 Md. 135, 144 (1994). When the movant has provided a sufficient basis for summary judgment, the party opposing the motion must "produce sufficient evidence" to show that there is a genuine dispute of fact, "which is sufficiently material to be tried." -10Williams, 359 Md. at 115;

see Scroggins v. Dahne, 335 Md. 688, 691 (1994); Berringer v. Steele , 133 Md. App. 442, 470 (2000). A material fact is one

that will "affect the outcome of the case," depending upon how the factfinder resolves the dispute. King v. Bankerd, 303 Md.

98, 111 (1985); see Faith v. Keefer, 127 Md. App. 706, 734, cert. denied, 357 Md. 191 (1999). All genuine factual disputes, and

inferences reasonably drawn from the facts, are resolved in favor of the non-moving party. Frederick Rd. Ltd. P'ship v. Brown &

Sturm, 360 Md. 76, 94 (2000); Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341, 345 (1995); Green v. Brooks, 125 Md. App. 349, 365 (1999). Moreover, in resolving the motion, the

trial court may not determine the credibility of witnesses. Thacker v. City of Hyattsville, 135 Md. App. 268, 286 (2000). But, mere general allegations or conclusory assertions of

disputed fact will not suffice.

Beatty, 330 Md. at 738.

Appellee included an affidavit with its motion for summary judgment. Appellant filed his opposition with an oath, but he Maryland Rule 2-

did not include a countervailing affidavit.

501(b) provides that the response to a summary judgment motion must "identify with particularity the material facts that are disputed." Further, the rule requires that when a motion is

supported by an affidavit, the opposing party "shall support the

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response by an affidavit or other written statement under oath." Id.; see Imbraguglio v. Great Atlantic & Pacific Tea Co., Inc., 358 Md. 194, 203-04 (2000) (recognizing that attachment of

documents in a summary judgment proceeding, without affidavit, is not proper); Hartford Accident & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 263-64 (1996) (recognizing that a party opposing summary judgment must present admissible evidence of a factual dispute), aff'd, 343 Md. 334 (1997). Appellee did not challenge the sufficiency of appellant's oath or appellant's failure to submit an affidavit. As we observed, if there are no genuine disputes of material fact, then the reviewing court must determine if the trial court "reached the correct legal result." Crews v. Hollenbach, 126 Md.

App. 609, 625 (1999), aff'd, 358 Md. 627 (2000); see Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 (1996);

Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 42-43 (1995); Beatty , 330 Md. at 737. In our review, we evaluate "the same

material from the record and decide[] the same legal issues as the circuit court." Lopata v. Miller, 122 Md. App. 76, 83, cert. Appellate courts will generally

denied, 351 Md. 286 (1998).

uphold a grant of summary judgment "only on the grounds relied upon by the trial court." Blades v. Woods , 338 Md. 475, 478

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(1995); see also Gross v. Sussex , Inc., 332 Md. 247, 254 n.3 (1993); Hoffman v. United Iron and Metal Co., Inc., 108 Md. App. 117, 132-33 (1996). DISCUSSION Appellant contends that the trier of fact should have

decided whether a binding contract of life insurance was formed based on appellee's promotional literature, "coupled" with the "telephone colloquy of February 20, 1999," between appellant and an agent of New York Life. According to appellant, his telephone

conversation with an unidentified representative of New York Life, the who assisted him with completion of the application, "had [e]ffect of modifying and reforming the promotional

literature and making a binding bilateral contract between the parties." Moreover, he observes that the promotional literature

"said nothing about [appellee's] policy . . . of not accepting applications precedent of by phone, and was silent about the condition by their Thus, for

the

enrollment

application

approved

underwriter for the insurance coverage to take effect." appellant maintains that, "as the bargained

exchange"

returning the completed enrollment form, executing the power of attorney, and mailing the first premium payment to New York Life, appellee was obligated to provide immediate insurance coverage for his father, as the "promised consideration." -13Appellant

states: "The alleged contract between the parties was a . . . contract, its [sic] the fulcrum of this case, and should have been the primary focus of the trial court, steering its inquiry." Mitchell also claims the trier of fact should have determined whether appellee provided interim life insurance while George's application for insurance was pending. Appellee counters that no insurance coverage existed,

because New York Life "had neither processed nor reviewed George Mitchell's enrollment application . . . ." observes that its to be policies and procedures accepted Indeed, appellee do by not permit

applications

processed

and

telephone.

Therefore, appellee asserts that New York Life never accepted the risk of coverage. In addition, appellee contends that appellant

"failed to meet his burden of proof to show that his father met New York Life's objective standard of insurability." Because the interpretation of an insurance policy is

governed by the same principles generally applicable to the construction of other contracts, we begin our analysis with a review of basic principles of contract law. See Philadelphia

Indem. Ins. Co. v. Maryland Yacht Club, Inc., 129 Md. App. 455, 467 (1999). A contract has been defined as "`a promise or set of

promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.'" -14-

Kiley v. First Nat'l Bank of Md., 102 Md. App. 317, 333 (1994) (quoting Richard A. Lord, 1 Williston on Contracts,

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