McGinnis v. Nationwide Life and Annuity Insurance Co et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEW S. MCGINNIS, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-641-G
)
NATIONWIDE LIFE AND ANNUITY )
INSURANCE CO. et al., )
)
Defendants. )
ORDER
Now before the Court is Defendant Nationwide Life Insurance Co.’s Motion for
Summary Judgment (Doc. No. 73). Plaintiff Lew S. McGinnis has responded in opposition
(Doc. No. 78), and Defendant Nationwide Life Insurance Co. has replied (Doc. No. 81).
I. Background
Plaintiff filed this action on July 21, 2023, against Defendants Nationwide Life and
Annuity Insurance Co., Nationwide Life Insurance Co. (“Nationwide Life”) (together, the
“Nationwide Defendants”), James A. Mueller, and The ASA Group. See Compl. (Doc. No.
1) at 1. Still pending, following the Court’s Orders of September 27, 2024, are claims of
breach of contract against each of the Nationwide Defendants as well as various claims
against Defendant Mueller; all claims against Defendant The ASA Group were dismissed.
See Nationwide Order of Sept. 27, 2024 (Doc. No. 43); Dismissal Order of Sept. 27, 2024
(Doc. No. 44). Defendant Nationwide Life now moves for summary judgment on the
remaining claim against it for breach of contract.
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II. Standard of Review
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). To defeat summary judgment, the nonmovant need not
convince the Court that it will prevail at trial, but it must cite sufficient evidence admissible
at trial to allow a reasonable jury to find in the nonmovant’s favor—i.e., to show that there
is a question of material fact that must be resolved by the jury. See Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005). The Court must then determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
Parties may establish the existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). While the Court views the evidence and the inferences
drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola
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Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he
mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for the
[nonmovant].” Liberty Lobby, 477 U.S. at 252.
III. Summary Judgment Record
Based on the materials presented and applying the standards described above, the
following facts are either not subject to any genuine dispute or, when such a dispute has
been shown, have been accepted by the Court upon viewing the evidence and all reasonable
inferences in the light most favorable to Plaintiff. See Fed. R. Civ. P. 56. Other material
facts, determined upon applying these same standards, are specifically addressed in the
Court’s discussion below.
Defendant Mueller is an independent insurance agent who was affiliated with
former defendant The ASA Group for 20 years. Mueller Decl. ¶¶ 2-3 (Doc. No. 71-2).
Through Defendant Mueller, Plaintiff purchased life insurance from various insurers. See
Pl.’s Dep. 21:11-17 (Doc. No. 71-1); id. Ex. 38; Mueller Decl. ¶ 6.
Between 2016 and 2017, Defendant Mueller procured two life insurance policies
for Plaintiff from Defendant Nationwide Life and Annuity Insurance Co.: Policy Nos.
B501931250 and B502053550 (respectively, the “1250 Policy” and the “3550 Policy”;
collectively, the “Policies”). See Fluharty Decl. ¶¶ 9, 12, 14 (Doc. No. 71-3); id. Exs. 3-3,
3-4 (1250 Policy), 3-6 (1250 Receipt), 3-7 (1250 Check), 3-15 (1250 Payments); Fluharty
Decl. ¶¶ 16, 20-22; id. Exs. 3-9, 3-10 (3550 Policy), 3-13 (3350 Receipt), 3-14 (3350
Check), 3-16 (3350 Payments).
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Plaintiff alleges that Defendants misrepresented the nature of the Policies, sold
Plaintiff a product unsuitable for his needs that failed to perform as guaranteed, and failed
to physically deliver the Policies. See Compl. ¶¶ 25-26, 28. Plaintiff further contends that
Defendants blurred any distinction between the Nationwide entities in their
communications and documents, presenting them as a single or interchangeable company
sharing the same address, phone number, and website, thereby rendering Nationwide Life
a proper party to this action. See Pl.’s Decl. ¶ 14 (Doc. No. 77, Ex. 1); Pl.’s Resp. at 6.
IV. Discussion
Defendant Nationwide Life asserts that Plaintiff’s breach of contract claim fails for
lack of privity, entitling Defendant to summary judgment. See Def. Nationwide Life’s Mot.
Summ. J. at 5. Plaintiff contends that a genuine dispute of material fact remains as to
whether Defendant Nationwide Life was a contracting party due to the purported
interchangeable references to both Nationwide Defendants within the insurance materials
furnished to Plaintiff. See Pl.’s Resp. at 6.
“Under well-settled Oklahoma law, insurance policies are contracts interpreted as a
matter of law.” Atain Speciality Ins. Co. v. Tribal Constr. Co., 912 F. Supp. 2d 1260, 1268
(W.D. Okla. 2012) (citing BP Am., Inc. v. State Auto Prop. & Cas. Ins. Co., 148 P.3d 832,
835 (Okla. 2005)). To establish a breach of contract claim, the plaintiff must show: (1)
formation of a contract, including that the defendant was a party to the contract; (2) a breach
of that contract; and (3) damages directly resulting from the breach. See Dig. Design Grp.,
Inc. v. Info. Builders, Inc., 24 P.3d 834, 843 (Okla. 2001); Proe v. Diamond Homes, 574
P.3d 1, 8 (Okla. Civ. App. 2025).
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“[C]ontracts are binding only upon those who are parties thereto, and are
enforceable only by the parties to a contract, or those in privity with it.” Drummond v.
Johnson, 643 P.2d 634, 639 (Okla. 1982) (footnote omitted). It follows that, “[u]nder
Oklahoma law, an insured cannot state a claim for breach of contract against an entity with
whom the insured is not in privity of contract.” Lightfoot v. Safeco Ins. Co. of Am., No.
CIV-24-604-PRW, 2025 WL 685223, at *2 (W.D. Okla. Mar. 3, 2025) (internal quotation
marks omitted); see also Wise v. CSAA Gen. Ins. Co., No. 16-CV-0100, 2016 WL 1732746,
at *2 (N.D. Okla. Apr. 29, 2016).
As explained by a judge of this Court in Lightfoot, privity of contract does not arise
from the type of “involvement” seen here. In that case, the plaintiff asserted a breach of
contract claim against an insurance company, contending that the company was in privity
of contract due to various references to the company in the relevant policy and
accompanying paperwork. See Lightfoot, 2025 WL 685223, at *2-3. The company
countered that privity was lacking, citing the policy document reflecting that it was not a
named issuer. See id. at *2. Further, the policy definitions’ references to “we,” “our,” and
“us” did not include the defendant company. See id. Because the policy contained no
provisions binding the company, Judge Wyrick held that “such ‘involvement’ [was]
insufficient to create a binding contractual relationship” and dismissed the claim. Id.
Here the Policies and their respective illustrations name only Defendant Nationwide
Life and Annuity Insurance Co. as the issuer of the contract. See Nationwide Defs.’ Mot.
to Dismiss (Doc. No. 18) Exs. 1 (1250 Policy) at 2, 26, 29; Ex. 2 (1250 Illustration); Ex. 3
(3550 Policy) at 3, 27, 29; Ex. 4 (3550 Illustration). The Policies’ definition sections
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further clarify that any references to “Nationwide” made therein pertain to Defendant
Nationwide Life and Annuity Insurance Co. See Nationwide Defs.’ Mot. to Dismiss Ex. 1
(1250 Policy) at 5; Ex. 3 (3550 Policy) at 6. The Policies therefore contain no provision
binding Defendant Nationwide Life to the contract.
Plaintiff refers to the fact that the Nationwide Defendants have jointly filed materials
in this case and to several joint interrogatory responses in an attempt to further implicate
Defendant as a party to the contract. See Pl.’s Resp. at 10-13. But “[a]n insurance contract
should be construed according to the terms set out within the four corners of the document.”
Shelter Mut. Ins. Co. v. Martindale, No. CV-17-1243-C, 2019 WL 80442, at *2 (W.D. Okla.
Jan. 2, 2019) (internal quotation marks omitted).
Accordingly, Defendant Nationwide Life Insurance Co. is entitled to judgment as a
matter of law on Plaintiff’s claim for breach of contract.1
CONCLUSION
For the foregoing reasons, Defendant Nationwide Life Insurance Co.’s Motion for
Summary Judgment (Doc. No. 73) is GRANTED. A separate judgment shall be entered.
1 Defendant Nationwide Life additionally asserts that Plaintiff’s claim is barred by the
statute of limitations. See Def. Nationwide Life’s Mot. Summ. J. at 1; Okla Stat. tit. 12, §
95(A)(1). Plaintiff does not address this argument in his Response. For the same reasons
set forth in the Order granting summary judgment to Defendant Nationwide Life and
Annuity Insurance Co., the Court finds that the record reflects no genuine dispute as to
whether Plaintiff’s claim against Defendant Nationwide Life is time barred. Defendant
Nationwide Life is also entitled to summary judgment on this basis.
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IT IS SO ORDERED this 30th day of March, 2026.
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