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 and Annuity Insurance Co.’s
Motion for Summary Judgment (Doc. No. 71). Plaintiff Lew S. McGinnis has responded
in opposition (Doc. No. 77), and Defendant Nationwide Life and Annuity Insurance Co.
has replied (Doc. No. 82).
I. Background
Plaintiff filed this action on July 21, 2023, against Defendants Nationwide Life and
Annuity Insurance Co. (“Nationwide Annuity”), Nationwide Life Insurance Co. (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 Annuity 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.
IV. Discussion
Defendant Nationwide Annuity asserts that Plaintiff’s breach of contract claim,
whether based on an oral or a written contract, is barred by the statute of limitations,
entitling Defendant to summary judgment. See Def. Nationwide Annuity’s Mot. Summ. J.
at 21-23. Plaintiff argues that the claim is governed by and accrued within the five-year
limitations period for written contracts and, because this case was initiated within five years
of Plaintiff’s October 31, 2018 discovery of Defendant Nationwide Annuity’s breach, is
not time barred. See Pl.’s Resp. at 4-5.
“A federal court sitting in diversity applies state law for statute of limitations
purposes,” and “state law determines when an action is commenced for statute of
limitations purposes.” Burnham v. Humphrey Hosp. REIT Tr., Inc., 403 F.3d 709, 712 (10th
Cir. 2005). State law also “governs when Plaintiff’s claims accrued.” Hi-Tex, LLC v. Vorel,
No. CIV-21-1125-D, 2025 WL 1679640, at *7 (W.D. Okla. June 13, 2025). Therefore,
Oklahoma law governs the Court’s determination of the timeliness of Plaintiff’s claim.
Pursuant to title 12, section 95(A)(1) and (2) of the Oklahoma Statutes, if an
“instrument constitutes a written contract,” then “the 5-year statute of limitations applies”;
if the contract is “not in writing,” “the 3-year statute of limitations applies.” Harlow Publ’g
Co. v. Patrick, 72 P.2d 511, 512 (Okla. 1937) (citations omitted); Okla. Stat. tit. 12, §
95(A)(1), (2). In Oklahoma, “[a]n action for breach of contract accrues when the contract
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is breached,” “regardless of whether the plaintiff knows, or in the exercise of reasonable
diligence, should have known of the breach.” Morgan v. State Farm Mut. Auto. Ins. Co.,
488 P.3d 743, 745 (Okla. 2021).
The present action was filed on July 21, 2023. The relevant limitations period, as it
pertains to Defendant Nationwide Annuity, is five years, as the claim arises from two
written contracts, more specifically the “1250 Policy” and the “3550 Policy.” See Compl.
¶¶ 25-26, 42; Pl.’s Resp. at 4; Nationwide Defs.’ Mot. to Dismiss (Doc. No. 18) Exs. 1
(1250 Policy), 3 (3550 Policy).1
Plaintiff alleges that the Nationwide Defendants breached their contract by failing
to honor the terms of the Policies as represented by Defendant Muller, failing to physically
deliver the policies to Plaintiff, and failing to provide insurance coverage to Plaintiff. See
Pl.’s Dep. 31:12-24, 108:2-16, 111:22-112:21, 119:22-120:6; Pl.’s Decl. ¶¶ 5-7, 10, 12-13
(Doc. No. 77, at pp. 14-18). The asserted breaches therefore occurred when the Policies
were issued or when Plaintiff began making premium payments but failed to receive the
expected benefit.
The 1250 Policy was issued October 26, 2016, and Plaintiff’s first premium was
received and went into force on or about November 3, 2016. See Fluharty Decl. ¶¶ 9, 12,
14; Exs. 3-3, 3-4 (1250 Policy), 3-6 (1250 Receipt), 3-7 (1250 Check), 3-15 (1250
1 The parties dispute whether alleged oral modifications by Defendant Mueller affect the
limitations period on the breach of contract claim. See Compl. ¶¶ 7, 28, 38; Def.
Nationwide Annuity’s Mot. Summ. J at 15, 17-18; Pl.’s Resp. at 8. The Court agrees with
Plaintiff that the five-year limitations period applies but notes that the outcome would
remain the same under the three-year period.
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Payments). The 3550 Policy was issued April 25, 2017, and Plaintiff’s policy went into
force May 19, 2017. See Fluharty Decl. ¶¶ 16, 20, 21, 22; Exs. 3-9, 3-10 (3550 Policy), 3-
13 (3350 Receipt), 3-14 (3350 Check), 3-16 (3350 Payments). By August 7, 2017, Plaintiff
expressed concern over Defendants’ perceived nonperformance. On that date, he wrote a
letter to Defendant Mueller expressing that Nationwide Annuity was asking for premium
payments he did not believe were owed. See Pl.’s Dep. 162:10-163:1; id. Ex. 39. At his
deposition, Plaintiff confirmed that he knew he “had a problem with [his] policies” by that
time. Pl.’s Dep. 164:2-12. By February of 2018, Plaintiff had received several notices
alerting him of issues with the Policies. See Fluharty Decl. Exs. 3-17, 3-18, 3-19 (notices
issued by Defendant Nationwide Annuity to Plaintiff, all dated prior to February 2018,
advising of potential lapse or termination of coverage).
The record therefore reflects no genuine dispute as to Defendant Nationwide
Annuity’s alleged breach occurring and being known to Plaintiff by February 2018 at the
latest. Because Plaintiff’s breach of contract claim was not commenced until July 21, 2023,
the claim is barred by the five-year limitations period of title 12, section 95(A)(1). See
Morgan, 488 P.3d at 750, 753.
Plaintiff objects, however, that any statute of limitations does not bar the claim
because “even if the cause of action had first arisen as early as 2016 or 2017 . . . the nature
of the breach of contract was continuous and ongoing.” Pl.’s Resp. at 5. In a footnote
citing decisions such as Chickasaw Telephone Co. v. Southwestern Bell Mobile Systems,
Inc., No. 96-6357, 1997 WL 290951 (10th Cir. May 27, 1997), Plaintiff nominally argues
that Defendant Nationwide Annuity engaged in “a series of breaches each giving rise to a
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cause of action.” Pl.’s Resp. at 5 n.9. But Plaintiff does not cite any record evidence
proving a series of breaches, instead merely arguing that “defendants failed and refused to
deliver and issue the insurance policies he applied for and paid for, which was a breach of
contract, and that breach continues to this day.” Id. at 5. Such assertions fail to show a
genuine issue for trial. See Fed. R. Civ. P. 56(c)(1); Mosier v. Maynard, 937 F.2d 1521,
1525 (10th Cir. 1991) (“Factual statements . . . attributable to counsel . . . do not constitute
summary judgment evidence[.]”).
Further, while Oklahoma does recognize a “continuous-accrual doctrine,” which
“treats each breach as an independently actionable wrong with its own time limit for
recovery,” such continuous accrual only applies to “a continuing or recurring obligation.”
Express Servs., Inc. v. King, No. CIV-15-1181-R, 2017 WL 3741555, at *8 (W.D. Okla.
Aug. 30, 2017) (internal quotation marks omitted). For the continuous-accrual doctrine to
apply, Plaintiff would need to demonstrate that the insurance contract created continuing
or recurring obligations on behalf of Defendant Nationwide Annuity. Plaintiff cites to no
contract term or on-point authority supporting the proposition that Defendant Nationwide
Annuity’s Policies “require[d] continuing performance for some period of time” or were
an “installment contract.” Chickasaw Tel. Co., 1997 WL 290951, at *4 (internal quotation
marks omitted). Therefore, any injury suffered by Plaintiff after Defendant Nationwide
Annuity’s alleged failure to perform “constitutes damages flowing from the breach, not
continuing breaches.” Id.
Because Nationwide Annuity’s alleged breach of contact occurred no later than
February 2018, Plaintiff’s breach of contract claim was required to be filed within five
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years of that date. See Morgan, 488 P.3d at 750; Okla. Stat. tit. 12, § 95(A)(1). This action
was not commenced until July 21, 2023. Therefore, Plaintiff’s claim is time barred, and
Defendant Nationwide Annuity is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, Defendant Nationwide Life and Annuity Insurance Co.’s
Motion for Summary Judgment (Doc. No. 71) is GRANTED. A separate judgment shall
be entered.
IT IS SO ORDERED this 30th day of March, 2026.
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