govinfo:USCOURTS-kywd-3_24-cv-00643-0

- 1 - 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
LOUISVILLE DIVISION 
 
JILLIAN M. FLORENTINO, 
  
Plaintiff, 
 
v. 
 
HARTFORD LIFE AND ACCIDENT 
INSURANCE COMPANY, 
 
Defendant. 
)
)
)
)
)
)
)
)
) 
) 
 
 
 
Civil Action No. 3:24-CV-643-CHB 
 
 
MEMORANDUM OPINION AND 
ORDER 
***  ***  ***  *** 
 
This matter is before the Court upon cross-motions for judgment on the administrative 
record filed by Plaintiff Jillian M. Florentino (hereinafter, “Plaintiff”), [R. 16], and by Defendant 
Hartford Life and Accident Insurance Company (hereinafter, “Defendant”), [R. 17-1]. Plaintiff’s 
motion alternatively requests the Court remand the matter for a “full and fair” administrative 
review. [R. 16, p. 21]. Each party filed a response to the other party’s motion, [R. 18 (Plaintiff’s 
Response); R. 19 (Defendant’s Response)], as well as a reply. [R. 21 (Plaintiff’s Reply); R. 23 
(Defendant’s Reply)]. Also before the Court is Plaintiff’s Motion to Strike Declaration of Tricia J. 
Parker, [R. 22], which seeks to exclude Defendant’s substitute exhibit filed at [R. 20-1]. Defendant 
responded to that motion at [R. 26], and Plaintiff replied at [R. 27]. These matters are therefore 
ripe for review. For the reasons that follow, the Court will grant Defendant’s Motion for Judgment 
on the Administrative Record, deny Plaintiff’s Motion for Judgment on the Administrative Record, 
and deny Plaintiff’s Motion to Strike as moot. 
I. BACKGROUND 
As part of a company employee benefit plan, Defendant issued a life insurance policy to 
the employer of Mr. Michael Florentino (hereinafter, “Decedent”). [R. 10-1, p. 15 (Administrative 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 1 of 16 PageID #:
<pageID>
- 2 - 
Record or “A.R.”)]. Defendant’s policy (hereinafter, “the Policy”) gave employees like Decedent 
the option to elect supplemental life insurance coverage. Id. at 18. During the 2023 open enrollment 
period, Decedent elected to enroll in $440,000 in supplemental life insurance coverage under the 
Policy. Id. at 107.  
This supplemental coverage included a “Guaranteed Issue Amount” of $200,000 and an 
additional “Maximum Amount” of up to $500,000, of which Decedent elected for $240,000 in 
coverage. Id. at 17, 107. The Guaranteed Issue Amount did not require evidence of insurability, 
id. at 37, but Defendant’s $240,000 in supplemental coverage did. Id. at 20. To provide evidence 
of insurability, Decedent completed a Personal Health Application (hereinafter, “PHA”). Id. at 
107, 413. One question on the PHA asked: 
Within the past 5 years, have you used any controlled substances, with the 
exception of those taken as prescribed by your physician, been diagnosed or 
treated for drug or alcohol abuse (excluding support groups), or been convicted 
of operating a motor vehicle while under the influence of drugs or alcohol? 
 
Id. at 408 (emphasis added). In response to this question, Decedent checked “No.” Id. 
Plaintiff and Decedent submitted the application on December 19, 2023. Id. at 413. 
Defendant approved the coverage that same day. Id. at 401. The Policy contains the following 
clause: 
Policy Interpretation: Who interprets the terms and conditions of The Policy?  
We have full discretion and authority to determine eligibility for benefits and to 
construe and interpret all terms and provisions of The Policy. This provision applies 
where the interpretation of The Policy is governed by the Employee Retirement 
Income Security Act of 1974, as amended (ERISA). 
 
Id. at 35–36 (emphasis in original). The Policy also contains an “Incontestability” clause, which 
specifies that “[i]n the absence of fraud,” life insurance benefits “cannot be contested after two 
years from its effective date,” id. at 35, and that “[n]o statement . . . will be used in any contest 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 2 of 16 PageID #:
<pageID>
- 3 - 
unless it is in writing and a copy of it is given to the person who made it, or to his or her beneficiary 
or Your representative.” Id. at 36.  
On February 20, 2024, Decedent died from acute fentanyl and acetyl fentanyl intoxication. 
Id. at 67, 318. His medical records revealed his struggle with opioid abuse throughout his 
adulthood, including within the five years preceding his death. Id. at 251, 255, 267, 294–95. In 
April of 2022, while visiting a medical clinic, Decedent’s “[c]ontinuous opioid dependence” was 
discussed after he revealed that he had relapsed in January of 2022 and used opioids the morning 
of the appointment. Id. at 267. Over one year later and less than one month before his death, in 
January of 2024, Decedent received psychiatric care and revealed then that he was “currently 
smoking Percocets,” had been to rehab three times, and had been sober for eight months at the 
most since he began using opioids at age seventeen. Id. at 251, 255.  
On May 6, 2024, Defendant requested Decedent’s medical records in order to verify 
Defendant’s statements made in the PHA due to Decedent’s death occurring within two years of 
his effective date of coverage. Id. at 112–13. After obtaining Decedent’s medical records, 
Defendant referred them to its medical underwriting unit on August 9, 2024. Id. at 108. On August 
12, 2024, the medical underwriting unit determined that, had Defendant had access to Decedent’s 
medical records, it would not have approved supplemental life insurance coverage based on 
Decedent’s “opioid dependence disorder.” Id. at 246. Shortly thereafter, on August 20, 2024, 
Defendant notified Plaintiff that her claim for benefits was denied, the $240,000 in supplemental 
life insurance was rescinded, and she had sixty days to appeal. Id. at 153–55. Defendant indicated 
that its decision to rescind coverage was based on Decedent’s “incorrect and untrue” statement on 
the PHA regarding his ongoing history of opioid dependence. Id. at 153–55.  
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 3 of 16 PageID #:
<pageID>
- 4 - 
Plaintiff, acting through counsel, administratively appealed the decision on October 2, 
2024. Id. at 169–170. On October 8, 2024, Defendant acknowledged receipt of Plaintiff’s appeal, 
and requested further communications to develop a response timeline if Plaintiff’s counsel 
intended to submit a substantive appeal and required more time to do so. Id. at 160–61. Plaintiff’s 
claim file was sent to Plaintiff’s counsel on October 15, 2024, and delivered on October 18, 2024. 
Id. at 103, 71. After Defendant learned Plaintiff’s counsel received a copy of the claim file, 
Defendant notified Plaintiff’s counsel on October 22, 2024, that it would proceed with the appeal 
review using the information already contained in the claim file unless Plaintiff’s counsel notified 
Defendant of his intent to supplement the appeal with additional information by October 29, 2024. 
Id. at 104. Plaintiff’s counsel did not respond. Id. at 69–70.  
Defendant upheld its decision on October 30, 2024, indicating that Plaintiff’s 
administrative remedies had been exhausted. Id. at 105–09. Plaintiff then filed this suit, which 
arises under the Employee Retirement Income Security Act of 1974 (hereinafter, “ERISA”), 29 
U.S.C. § 1132(a)(1)(B). Plaintiff, in a motion for judgment on the administrative record, now 
argues that Defendant’s rescission of coverage was invalid, citing various state law provisions and 
the terms of the Policy in support. See generally [R. 16]. Defendant’s own motion for judgment 
on the administrative record argues its rescission decision was proper under federal common law 
and the terms of the Policy. See generally [R. 17].  
These motions are presently before the Court alongside Plaintiff’s Motion to Strike, 
[R. 20]. Plaintiff’s Motion to Strike seeks to exclude the Parker Declaration at [R. 20-1], a 
corrected version of the Parker Declaration at [R. 19-1]. Because the Court can resolve the parties’ 
cross-motions for judgment on the administrative record without considering the Parker 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 4 of 16 PageID #:
<pageID>
- 5 - 
Declaration, the Court need not address Plaintiff’s Motion to Strike and will instead proceed 
straight to the merits.  
II. ANALYSIS 
ERISA permits benefits-plan participants to proceed to federal court to “recover benefits 
due” under the plan. 29 U.S.C. § 1132(a)(1)(B). Typically, where a plaintiff challenges a plan 
administrator’s denial of benefits, “the validity of a claim to benefits . . . turn[s] on the 
interpretation of terms in the plan at issue.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 
115 (1989). Generally, “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed 
under a de novo standard . . . .” Firestone, 489 U.S. at 115. Under this standard, the court “takes a 
fresh look at the administrative record, . . . according no deference or presumption of correctness 
to the decisions of . . . [the] plan administrator.” Bruton v. Am. United Life Ins. Corp., 798 F. App’x 
894, 902 (6th Cir. 2020) (quoting Javery v. Lucent Techs., Inc. Long Term Disability Plan for 
Mgmt. or LBA Employees, 741 F.3d 686, 700–01 (6th Cir. 2014) (citation modified)). By contrast, 
the arbitrary and capricious standard is “extremely deferential” and “the least demanding form of 
judicial review.” Davis v. Hartford Life & Accident Ins. Co., 980 F.3d 541, 547 (6th Cir. 2020). 
Under the arbitrary and capricious standard, a court should uphold the administrator’s decision “if 
it is the result of a deliberate, principled reasoning process and if it is supported by substantial 
evidence.” Jackson v. Blue Cross Blue Shield of Mich. Long Term Disability Prog., 761 F. App'x 
539, 543 (6th Cir. 2019) (citing Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 
F.2d 1140, 1144 (6th Cir. 1991) (quotations omitted)).  
Before a court interprets terms in the plan, it typically determines which standard of review 
applies to establish whether any deference is owed to the administrator’s decision denying benefits. 
See Firestone, 489 U.S. at 113–15. The standard of review turns on whether the plan gives the 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 5 of 16 PageID #:
<pageID>
- 6 - 
administrator “the discretionary authority to determine eligibility for benefits or to construe the 
terms of the plan.” Id. at 115. If the plan grants the administrator such discretion, the court reviews 
the administrator’s denial of benefits under the arbitrary-and-capricious standard. Davis, 980 F.3d 
at 545 (quoting Firestone, 489 U.S. at 115); Hogan v. Life Ins. Co. of N. Am., 521 F. App’x 410, 
414 (6th Cir. 2013) (citing Firestone, 489 U.S. at 113–15). If the plan does not grant the 
administrator discretion, the court reviews the administrator’s denial of benefits de novo. 
Firestone, 489 U.S. at 115; Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 889–90 (6th Cir. 
2020).  
Here, the parties dispute both the standard of review and the district court’s interpretation 
of the plan. 
A. Standard of Review 
Under the terms of the Policy, two clauses may grant Defendant discretionary authority 
and thereby warrant applying the arbitrary and capricious standard of review. First, the Policy 
Interpretation provision provides that Defendant has “full discretion and authority to determine 
eligibility for benefits and to construe and interpret all terms and provisions of The Policy.” [R. 10-
1, p. 35 (A.R.)]. Second, the Policy states that “Evidence of Insurability must be satisfactory to 
Us.” Id. at 20. The Sixth Circuit has determined that each clause grants discretionary authority and 
supports reviewing the administrator’s decision under the arbitrary and capricious standard. 
Campbell v. Hartford Life & Accident Ins. Co., No. 21-5651, 2022 WL 620151, at *3 (6th Cir. 
2022) (“full discretion and authority” provision); Frazier v. Life Ins. Co. of North America, 725 
F.3d 560 (6th Cir. 2013) (“This Court has found ‘satisfactory proof,’ and similar phrases, 
sufficiently clear to grant discretion to administrators and fiduciaries.”) (citing Perez v. Aetna Life 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 6 of 16 PageID #:
<pageID>
- 7 - 
Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998) (en banc); Miller v. Metro Life Ins. Co., 925 F.2d 979, 
983 (6th Cir. 1991)).  
Plaintiff argues, however, that the Court cannot consider these discretionary clauses despite 
the Sixth Circuit’s decisions. Plaintiff first notes that she and Decedent resided in Texas during the 
policy term. [R. 16, p. 10]. As a result, Plaintiff claims the Policy Interpretation provision—which 
contains the first discretionary clause (“full discretion and authority”)—does not apply by the 
terms of the Policy itself. Id. (citing [R. 10-1, p. 10 (A.R.) (“Texas: The Policy Interpretation 
provision . . . is not applicable.”) (emphasis in original)]). Additionally, Plaintiff argues Texas’s 
ban on discretionary clauses in life insurance prevents consideration of either potential 
discretionary clause, since the Texas law applies to “a policy, certificate, or rider . . . offered, 
issued, renewed, or delivered on or after February 1, 2011.” Id. (citing 28 Tex. Admin. Code 
§§ 3.1201, 3.1203; Tex. Ins. Code §§ 1701.062, 1701.002). Defendant counters that these statutes 
do not apply for two reasons: (1) they are preempted by ERISA and do not fall within the ERISA 
Savings Clause exception; and (2) the ban is inapplicable on these facts.  
Although the Sixth Circuit has found a Michigan statue similar to Texas’s fell within the 
ERISA Savings Clause exception, see Am. Council of Life Insurers v. Ross, 558 F.3d 600, 607 (6th 
Cir. 2009), the Fifth Circuit and the Northern District of Texas have each declined to address the 
specific Texas provisions at issue here. See Ariana M. v. Humana Health Plan of Tex., Inc., 884 
F.3d 246, 250 (5th Cir. 2018); Taylor v. Metro. Life Ins. Co., 366 F. Supp. 3d 810, 815 (N.D. Tex. 
2019).  
Regardless, in this case, the Court declines to decide the appropriate standard of review. 
Rather, as outlined below, Plaintiff’s claim fails regardless of which standard of review the Court 
applies. The Court therefore need not decide the issue. 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 7 of 16 PageID #:
<pageID>
- 8 - 
B. Validity of Rescission  
The parties agree that federal common law generally applies to ERISA cases concerning 
rescission. [R. 16, p. 12; R. 17-1, p. 7]. The Sixth Circuit likewise directs the same. Campbell, 
2022 WL 620151, at *5 (“Federal common law rules control our interpretation of terms in an 
ERISA plan, ‘tak[ing] direction from both state law and general contract law principles.’” (quoting 
Perez, 150 F.3d at 556)). Under federal common law, “an insurer is entitled to avoid an insurance 
policy if the insurer proves that the insured made a fraudulent or material1 misrepresentation in his 
insurance application that justifiably induced the issuance of the policy.” Davies v. Centennial Life 
Ins. Co., 128 F.3d 934, 943 (6th Cir. 1997); see also Campbell, 2022 WL 620151, at *5 (“[A]n 
administrator may rescind coverage if the insured made a material misrepresentation in the 
insurance application.) (citation and quotations omitted)). “A misrepresentation is material if it 
materially affects the insurer’s risk or the hazard assumed by the insurer.” Id. (citation and 
quotations omitted).  
The Sixth Circuit’s decision in Campbell is instructive. 2022 WL 620151. There, the Sixth 
Circuit considered facts remarkably similar to these: a decedent falsely represented that he had no 
history of drug or alcohol abuse in response to the same PHA question quoted above, see [R. 10-
1, p. 408 (A.R.)], but his medical records revealed a history of alcohol abuse that likely contributed 
to the esophageal cancer that took his life. Campbell, 2022 WL 620151, at *1–*2. As a result, the 
insurer rescinded life insurance coverage pursuant to the same “Incontestability” provision as 
Defendant’s here. Id. at *2; see [R. 10-1, p. 35 (A.R.)]. Applying the arbitrary and capricious 
 
1 Defendant alleges that Decedent’s misrepresentation was material, not that it was fraudulent or both fraudulent and 
material. See [R. 17-1, pp. 1 (“Decedent’s misrepresentations were material to [Defendant’s] decision whether to issue 
coverage . . . .”), 7 (“Decedent’s application for life insurance coverage in this case contained . . . a material 
misrepresentation.”)].  
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 8 of 16 PageID #:
<pageID>
- 9 - 
standard of review, the Sixth Circuit determined that “the administrator rationally determined that 
checking ‘No’ to [the question about drug and alcohol abuse] was a material misrepresentation.” 
Campbell, 2022 WL 620151, at *5. According to the Sixth Circuit, the record included “ample 
evidence” supporting the administrator’s decision, including the decedent’s treatment for alcohol 
abuse in the year prior to applying for life insurance, his diagnosis of “alcohol dependence” by 
two physicians, and his statement to one physician that he could not control his alcohol intake. Id. 
In light of these facts, the Sixth Circuit concluded the decedent and his spouse made a 
“misrepresentation” by stating that the decedent had not been “diagnosed or treated” for “alcohol 
abuse,” and this representation was “material” because the information about health history “‘is 
extremely important to the underwriting decision.’” Id. at *5–*6 (quoting Davies, 128 F.3d at 943).  
The Court struggles to distinguish the facts in the present case from Campbell’s, even if it 
accords no deference to the administrator’s decision to deny coverage. Here, Decedent made the 
same misrepresentation as the decedent in Campbell, marking the same “No” response to the same 
PHA question. [R. 10-1, p. 408 (A.R.)]. Decedent also had a similar history of drug abuse and 
treatment at the time he made that misrepresentation, as he admitted to abusing opioids within 
three years of applying for life insurance and within months after applying. Id. at 251, 255, 267. 
Across two visits over those three years, Decedent was diagnosed with “continuous opioid 
dependence (disorder)” and “opioid dependence.” Id. at 258, 267. And, these misrepresentations 
were likewise “material,” as they “materially affect[] the insurer’s risk or the hazard assumed by 
the insurer” by failing to disclose a heightened risk that Decedent might perish as a result of his 
opioid abuse—information “extremely important to the underwriting decision.” Davies, 128 F.3d 
at 943. Taken together, Defendant’s rescission met the requirements of federal common law under 
either the arbitrary and capricious standard applied in Campbell or the de novo standard.  
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 9 of 16 PageID #:
<pageID>
- 10 - 
Plaintiff pushes back in three ways, arguing Defendant’s rescission was invalid because 
Defendant did not (1) establish Decedent’s intent to deceive, (2) comply with the Policy terms 
permitting it to contest and rescind coverage, or (3) remit insurance premiums to Plaintiff, which 
Plaintiff describes as a prerequisite for rescission. The Court considers each argument in turn.    
1. Intent Requirement 
According to Plaintiff, there is a state law requirement that Defendant prove Decedent’s 
intent to deceive in order to rescind, regardless of whether the Court looks to the law of the state 
of delivery (i.e., Ohio) or the law of the state of residency (i.e., Texas). [R. 16, p. 13].  
However, the Sixth Circuit has noted that “[w]hile state law may guide us in determining 
the proper federal common law standards, we are not bound to apply a particular state’s law.” 
Davies, 128 F.3d at 943 (citing Dingledine v. Central Reserve Life Ins. Co., 934 F.Supp. 892, 898 
(S.D. Ohio 1996)). And, the Sixth Circuit has also repeatedly found that an “insured’s good faith 
is irrelevant” to the materiality analysis under federal common law. Id.; Campbell, 2022 WL 
620151, at *7. Accordingly, the Court need not and will not impose an intent requirement on top 
of the requirements of federal common law. Even according no deference to the claims 
administrator’s decision to rescind, Defendant’s rescission is valid regardless of whether Decedent 
intended to deceive in making his misrepresentation.  
2. Policy Terms 
Plaintiff next claims Defendant failed to abide by the terms of the Incontestability provision 
in contesting and rescinding coverage. [R. 16, p. 14]. Specifically, Plaintiff argues Defendant was 
required to show before it could rescind coverage that (1) the PHA was signed by Decedent and 
Plaintiff and (2) a copy of the PHA was given to Decedent or Plaintiff, but Defendant demonstrated 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 10 of 16 PageID #:
<pageID>
- 11 - 
neither. Id. at 14–15. The Court briefly cited a different portion of the Incontestability provision 
above, see [R. 10-1, pp. 35–36 (A.R.)], but the relevant portions read as follows: 
Incontestability: When can the Life Insurance Benefit of The Policy be contested? 
Except for non-payment of premiums, Your or Your Dependent’s Life Insurance 
Benefit cannot be contested after two years from its effective date.  
 
In the absence of fraud, no statement made by You or Your Spouse relating to 
Your or Your Spouse’s insurability will be used to contest Your insurance for 
which the statement was made after Your insurance has been in force for two 
years. In order to be used, the statement must be in writing and signed by You 
and Your Spouse. 
 
* * * 
 
All statements made by the Policyholder, the Employer or You or Your Spouse 
under The Policy will be deemed representations and not warranties. No statement 
made to affect this insurance will be used in any contest unless it is in writing 
and a copy of it is given to the person who made it, or to his or her beneficiary 
or Your representative. 
 
[R. 10-1, pp. 35–36 (A.R.)] (emphasis added).  
According to Plaintiff, the PHA was not signed by both Decedent and Plaintiff because 
Plaintiff’s name was merely typed above the “Spouse Signature” line, while Decedent’s name was 
DocuSigned. [R. 16, p. 15]; see [R. 10-1, p. 413 (A.R.)]. Similarly, Plaintiff claims no copy of the 
PHA was provided immediately after it was completed. [R. 16, p. 16]. Each failure, Plaintiff 
claims, foreclosed Defendant’s ability to consider the PHA in its coverage or rescission 
determination, making Defendant’s decision to decline coverage and rescind the policy invalid. Id. 
at 18. 
Plaintiff’s argument misreads the terms of the contract. The terms of an insurance policy 
must be read in the context of the whole policy. Bondex Intern., Inc. v. Hartford Acc. And Indem. 
Co., 667 F.3d 669, 677 (6th Cir. 2011). Here, a proper interpretation of the contract terms in context 
reveals that the “signature” and “copy” requirements apply only after the two-year incontestability 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 11 of 16 PageID #:
<pageID>
- 12 - 
window passes. The Sixth Circuit found as such in Campbell when it determined that because the 
insurer “rescinded coverage within two years from the effective date of the policy, . . . the 
incontestability clause did not apply.” 2022 WL 620151, at *7. Notably, the incontestability clause 
there was identical to the Incontestability clause in the Policy here, including the copy and 
signature requirements. See id.; [R. 10-1, pp. 35–36]; see also Campbell v. Hartford Life & 
Accident Ins. Co., No. 5:18-CV-194-JMH, at [R. 21] (E.D. Ky. Oct. 29, 2018) (quoting the 
Incontestability provision in the Administrative Record). Here, the insurer rescinded coverage 
within nine months of the policy’s effective date, [R. 10-1, pp. 153, 401 (A.R.)], meaning 
Defendant could use any “statements” (i.e., the PHA) to contest the insurance without having to 
demonstrate the signatures thereupon were valid or provide a copy to Plaintiff.  
Moreover, even if the “signature” and “copy” requirements applied to this action—which 
they do not—Defendant would still meet each requirement. Under Sixth Circuit caselaw, a 
“signature” merely refers to acknowledgement or ratification of a written document, and a typed 
signature indicates that acknowledgement. See Pittman v. Experian Solutions, Inc., 901 F.3d 619, 
637 (6th Cir. 2018) (interpreting Michigan law in the context of the “long history of the statute of 
frauds” whereby a signature included “any notation signifying adoption or assent to be bound” 
(citations omitted)). The state laws of Texas and Ohio likewise recognize typed signatures. See 
Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, 227 (5th Cir. 2013) (“Texas law 
recognizes typed or stamped signatures, and presumably also scanned signatures, so long as they 
are rendered by or at the direction of the signer . . . .” (citing Restatement (Second) of Contracts 
§ 134 (1981))); State v. Sowell, 71 N.E.3d 1034 (Ohio 2016) (“[A] person signs a document when 
he writes or marks something on it in token of his intention to be bound by its contents.”). And, as 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 12 of 16 PageID #:
<pageID>
- 13 - 
Defendant points out, if Plaintiff’s concern lies in the potential forgery of her signature, that result 
would also foreclose coverage. See [R. 22, p. 6].  
As to the “copy” requirement, reading the Incontestability provision as a whole and in 
context is once again crucial. Because a “copy” must be given if a statement is used in a contest, 
see supra, and the policy makes no mention of when a copy must be provided, logic dictates that 
Defendant must provide a copy during a contest—and Defendant did so during the administrative 
review process. [R. 10-1, pp. 45–46, 71, 103–04 (A.R.)]; see also 29 C.F.R. § 2560.503-1(h)(iii) 
(requiring administrators to “provide[], upon request and free of charge,” copies of documents 
“relevant to [a] claim for benefits.”). There is no indication in the administrative record that 
Plaintiff requested copies until October 2, 2024, when Plaintiff’s counsel administratively 
appealed Defendant’s decision to deny and rescind coverage, and Defendant promptly provided 
that information. [R. 10-1, pp. 169 (requesting the “insurance policy and, if applicable, certificate 
of coverage”), 71, 103–04 (A.R.)]. Taken together, Defendant would meet both requirements even 
if they applied to this action, which they do not. Even according no deference to Defendant’s 
rescission decision, the rescission remains valid under the terms of the Policy.   
3. Remission of Premiums 
Finally, Plaintiff argues Defendant was obligated to remit premiums as a “condition 
precedent” to its rescission, yet Defendant never did so. [R. 16, pp. 18–20]. Defendant counters 
that remitting premiums is not a condition precedent to rescinding coverage and that its notice to 
Plaintiff to contact Decedent’s employer for premium reimbursement was sufficient. [R. 19, 
pp. 14–16]. According to Defendant, any failure by Plaintiff to seek or accept reimbursement from 
Decedent’s employer cannot unwind Defendant’s rescission. See id. 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 13 of 16 PageID #:
<pageID>
- 14 - 
The administrative record reveals Defendant instructed Plaintiff to “contact [Decedent’s 
employer] to inquire if you may be eligible for a premium reimbursement for coverage for which 
premiums may have been paid to [Defendant] by [Decedent], through payroll deduction.” [R. 10-
1, p. 155 (A.R.)]. Plaintiff cites to no policy terms requiring reimbursement of premiums as a 
prerequisite for rescission, see [R. 16; R. 18; R. 21], and the Court’s review of the Policy finds 
none. See [R. 10-1, pp. 1–47].  
As a general matter, Plaintiff’s argument contradicts the requirements for rescission as 
articulated by federal common law, none of which mention premium reimbursement as a 
“condition precedent” to rescission. See, e.g., Davies, 128 F.3d; Perez, 150 F.3d; Campbell, 2022 
WL 620151. Additionally, Plaintiff’s supporting cases rely on irrelevant state law, which—as the 
Court has already discussed, see supra Section II(B)(1)—the Court is “not bound to apply” when 
determining the requirements for rescission under federal common law. Davies, 128 F.3d at 943. 
Further, none of the specific state laws Plaintiff cites are even potentially applicable in this case, 
as the state laws of Kentucky, Ohio, or Texas are not referenced; instead, Plaintiff points to the 
state laws of: (1) Michigan, see [R. 16, p. 19 (citing Cont’l Assurance Co. v. Shaffer, 157 
F.Supp.829, 834 (W.D. Mich. 1957); Burton v. Wolverine Mut. Ins. Co., 540 N.W.2d 480, 483 
(Mich. App. 1995))]; (2) Georgia, see id. (citing PHL Variable Ins. Co. v. Faye Keith Jolly 
Irrevocable Life Ins. Tr., 460 F. App’x 899, 902 (11th Cir. 2012)); (3) Pennsylvania, see id. (citing 
Ocwen Loan Servicing, LLC v. Radian Guar., Inc., 2018 WL 684838, at *8 (E.D. Pa. Jan. 31, 
2018)); (4) Florida, see id. (citing Gonzalez v. Eagle Ins. Co., 948 So. 2d 1, 3 (Fla. App. 2006); 
Pino v. Union Bankers Ins. Co., 627 So. 2d 535, 536-37 (Fla. App. 1993)); and (5) Rhode Island, 
see id. (citing Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 379 (1st Cir. 1991)). Moreover, 
some of Plaintiff’s cases misrepresent the current law or stand for precisely the opposite conclusion 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 14 of 16 PageID #:
<pageID>
- 15 - 
by declining to require premium remission as a condition precedent to for rescission. See Avemico 
Inc. Co. v. Coupe, 234 F.3d 1267 (6th Cir. 2000) (“There is no requirement in Michigan law that 
[Defendant] refund or offer to refund any unearned premium concurrent with a cancellation.”); 
Gonzalez, 948 So. 2d, at *2 (“[W]e hold that the failure to return the premiums did not waive [the 
insurer’s] right to deny coverage.”). And, none of Plaintiff’s cited cases refer to premium remission 
as a “condition precedent” to rescission, as a “prerequisite,” or any other synonymous term. See 
generally [R. 16, p. 9]. 
Taken together, the Court is not persuaded that premium rescission is a prerequisite to 
rescission under federal common law. Plaintiff fails to cite any binding or even persuasive 
authority on this point, and the Court has likewise failed to locate any authority providing for a 
federal common law requirement that premiums must be remitted as a prerequisite to rescinding 
coverage under an ERISA plan, or any such requirement under the state laws of Kentucky, Texas, 
or Ohio. If anything, the administrative record suggests that if Plaintiff wanted reimbursement for 
premiums, she had to contact Decedent’s employer to begin that process. See [R. 10-1, p. 155 
(A.R.)]. The Court is not aware of any relevant authority suggesting that Plaintiff’s failure to act 
invalidates Defendant’s rescission.   
III. CONCLUSION 
For the above-stated reasons, the Court finds Defendant’s decision to deny and rescind 
coverage is supported by the terms of the Policy and the applicable law, under either a de novo or 
arbitrary and capricious standard of review. Therefore, the Court will grant Defendant’s Motion 
for Judgment on the Administrative Record and deny Plaintiff’s Motion for Judgment on the 
Administrative Record. Because the Court can resolve the parties’ arguments without considering 
the Parker Declaration at issue in Plaintiff’s Motion to Strike, the Court will deny Plaintiff’s 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 15 of 16 PageID #:
<pageID>
- 16 - 
Motion to Strike as moot. Accordingly, and the Court being otherwise sufficiently advised, IT IS 
HEREBY ORDERED as follows: 
1. Defendant’s Motion for Judgment on the Administrative Record, [R. 17], is 
GRANTED. 
2. Plaintiff’s Motion for Judgment on the Administrative Record, alternatively Plaintiff’s 
Motion to Remand for Full and Fair Review, [R. 16], is DENIED. 
3. Plaintiff’s Motion to Strike Declaration of Tricia J. Parker, [R. 22], is DENIED AS 
MOOT. 
 
This the 16th day of March, 2026.  
 
Case 3:24-cv-00643-CHB-CHL     Document 28     Filed 03/17/26     Page 16 of 16 PageID #:
<pageID>

Passage view · GavelSight