Metropolitan Life Insurance Company v. Bradshaw

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

METROPOLITAN LIFE INSURANCE )

COMPANY, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-00131-PRW

)

TIFFANY BRADSHAW, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On May 31, 2019, Plaintiff filed a Motion for Summary Judgment (Dkt. 27)

pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. Pursuant to LCvR 7.1(g),

the deadline for Defendant to respond to Plaintiff’s motion was June 21, 2019. On August

12, 2019, Plaintiff filed a Motion to Deem Motion for Summary Judgment as Confessed

(Dkt. 29) because Defendant had failed to file any response. Even now, Defendant has

failed to respond to Plaintiff’s Motion for Summary Judgment (Dkt. 27) and its Motion to

Deem Motion for Summary Judgment as Confessed (Dkt. 29). On March 2, 2020, the Court

held a hearing on the motions to clarify the applicable law and the timeline of events.

Plaintiff’s local counsel was present for the hearing, but Defendant and her counsel failed

to appear. At the close of the hearing, the Court asked Plaintiff to submit supplemental

briefing, if necessary, to address some of the issues raised at the hearing. Plaintiff submitted

its Supplement in Support of Motion for Summary Judgment with Notice of Correction

(Dkt. 35) on March 23, 2020. Having reviewed Plaintiff’s filings and heard its arguments,

the Court GRANTS Plaintiff’s Motion to Deem Motion for Summary Judgment as

Confessed (Dkt. 29)—thereby rendering all facts asserted and properly supported as

undisputed—and GRANTS Plaintiff’s Motion for Summary Judgment (Dkt. 27), all as set

forth more fully below.

Burden of Proof

Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” In deciding whether summary judgment is proper, the court

does not weigh the evidence and determine the truth of the matter asserted, but determines

only whether there is a genuine dispute for trial before the fact-finder(s).1 The movant bears

the initial burden of demonstrating the absence of a genuine, material dispute and an

entitlement to judgment.2 A fact is “material” if, under the substantive law, it is essential

to the proper disposition of the claim.3 A dispute is “genuine” if there is sufficient evidence

on each side so that a rational trier of fact could resolve the issue either way.4

If the movant carries the initial burden, the nonmovant must then assert that a

material fact is genuinely disputed and must support the assertion by “citing to particular

parts of materials in the record, including depositions, documents, electronically stored

1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Birch v. Polaris

Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015).

2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

3 Anderson, 477 U.S. at 248; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.

1998).

4 Id.

information, affidavits or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other materials”; by “showing that

the materials cited [in the movant’s motion] do not establish the absence . . . of a genuine

dispute”; or by “showing . . . that an adverse party [i.e., the movant] cannot produce

admissible evidence to support the fact.”5 The nonmovant does not meet its burden by

“simply show[ing] there is some metaphysical doubt as to the material facts,”6 or by

theorizing a “plausible scenario” in support of its claims.7 “Rather, ‘the relevant inquiry is

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.’”8 If there is a

genuine dispute as to some material fact, the district court must consider the evidence and

all reasonable inferences from the evidence in the light most favorable to the nonmoving

party.9

But where the nonmovant fails to file a response within the time specified by a local

rule, she “waive[s] the right to file a response and confesses all facts asserted and properly

5 Fed. R. Civ. P. 56(c)(1); see also Celotex Corp., 477 U.S. 317; Beard v. Banks, 548 U.S.

521, 529 (2006).

6 Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (alteration in

original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995)).

7 Scott v. Harris, 550 U.S. 372, 380 (2007).

8 Neustrom, 156 F.3d at 1066 (quoting Anderson, 477 U.S. at 251–52; Bingaman v. Kan.

City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993)).

9 Scott, 550 U.S. at 380; Matsushita Elec. Indus. Co., 475 U.S. at 587; Sylvia v. Wisler, 875

F.3d 1307, 1328 (10th Cir. 2017).

supported in the motion.”10 This is consistent with the terms of Rule 56(e), which provide

that a nonmovant’s “fail[ure] to properly address [the movant]’s assertion of fact[s] as

required by Rule 56(c)” permits the Court to “consider the fact[s] undisputed for purposes

of the motion.”11 Accordingly, the Court hereby GRANTS Plaintiff’s Motion to Deem

Motion for Summary Judgment as Confessed (Dkt. 29).

“Summary judgment is not proper merely because [the nonmovant] failed to file a

response,” however, because “the moving party must meet its ‘initial responsibility’ of

demonstrating that no genuine issue of material fact exists and that it is entitled to summary

judgment as a matter of law.”12 Where the evidentiary matter in support of the motion does

not meet this burden, “summary judgment must be denied even if no opposing evidentiary

matter is presented.”13

Undisputed Material Facts

The Federal Employees’ Group Life Insurance Act (FEGLIA), 5 U.S.C. §§ 8701–

8716 establishes a life insurance program for federal employees.14 Section 8709 of the

FEGLIA authorizes the Office of Personnel Management (OPM) to “purchase from one or

more life insurance companies a policy or policies of group life and accidental death and

dismemberment insurance to provide the benefits specified by this chapter [i.e., Chapter

10 Murray v. City of Tahlequah, 312 F.3d 1196, 1200 (10th Cir. 2000).

11 Fed. R. Civ. P. 56(e)(2).

12 Murray, 312 F.3d at 1200.

13 Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970) (quoting Fed. R. Civ. P. 56(e)

advisory committee’s note to 1963 amendment)

14 See Dean v. Johnson, 881 F.2d 948 (10th Cir.1989).

87].”15 Plaintiff, Metropolitan Life Insurance Company (MetLife), is a life insurance

company from whom the OPM purchased Group Policy No. 17000-G, known as the FEGLI

Policy.16

While employed at the U.S. Postal Service’s Distribution Center in Oklahoma City,

Donald Bradshaw enrolled for coverage under the FEGLI Policy.17 When he retired, he

elected to continue coverage under the FEGLI Policy.18 Although the Motion for Summary

Judgment (Dkt. 27) contained statements indicating that Mr. Bradshaw died on December

2, 2016,19 the Claim History provided with that motion and the Death Certificate attached

to Plaintiff’s Supplement (Dkt. 35) conclusively demonstrate that he died on December 14,

2016.20 Thus, death benefits in the amount of $336,000.00 became due under the provisions

of the FEGLI Policy on December 14, 2016. 21

15 5 U.S.C. § 8709(a) (2012).

16 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 4, at 3.

17 See id. ¶ 5, at 3; Liddy Aff. (Dkt. 27-2) ¶ 4(a), at 2; Designation of Beneficiary Form

(Nov. 29, 2016), Ex. A to Liddy Aff. (Dkt. 27-2) at 5.

18 Designation of Beneficiary Form (Nov. 29, 2016), Ex. A to Liddy Aff. (Dkt. 27-2) at 5

(showing that Mr. Bradshaw is “a retiree”).

19 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 5, at 3; Liddy Aff. (Dkt. 27-2) ¶ 4(b), at 2.

20 Claim History, Ex. B to Liddy Aff. (Dkt. 27-2) at 7 (showing a table where the “Date of

Death” is listed as “12/14/2016”); Death Certificate (Dec. 20, 2016), Ex. 1 to Aceto Aff.

(Dkt. 35-1) at 5 (showing that Mr. Bradshaw died at home at 8:50 a.m. on December 14,

2016).

21 Aceto Aff. (Dkt. 35-1) ¶ 4(c), at 2.

Section 8705(a) of the FEGLIA provides for the payment of FEGLI proceeds,

establishes who may be entitled to payment, provides an order of preference among such

persons, and establishes certain requirements for designating beneficiaries:

(a) Except as provided in subsection (e), the amount of group life insurance

and group accidental death insurance in force on an employee at the date of

his death shall be paid, on the establishment of a valid claim, to the person

or persons surviving at the date of his death, in the following order of

precedence:

First, to the beneficiary or beneficiaries designated by the employee

in a signed and witnessed writing received before death in the

employing office or, if insured because of receipt of annuity or of

benefits under subchapter I of chapter 81 of this title as provided by

section 8706(b) of this title, in the Office of Personnel Management.

For this purpose, a designation, change, or cancellation of beneficiary

in a will or other document not so executed and filed has no force or

effect.

Second, if there is no designated beneficiary, to the widow or widower

of the employee.

Third, if none of the above, to the child or children of the employee

and descendants of deceased children by representation.

Fourth, if none of the above, to the parents of the employee or the

survivor of them.

Fifth, if none of the above, to the duly appointed executor or

administrator of the estate of the employee.

Sixth, if none of the above, to other next of kin of the employee

entitled under the laws of the domicile of the employee at the date of

his death.22

On December 29, 1994, Mr. Bradshaw executed and filed a Designation of Beneficiary

form wherein he named Defendant, Tiffany Bradshaw, a partial beneficiary entitled to 50%

22 5 U.S.C. § 8705(a) (2012).

of the FEGLI proceeds.23 But on November 29, 2016—just two weeks prior to his death—

Mr. Bradshaw executed another Designation of Beneficiary form naming another party,

D.B., as the sole beneficiary entitled to 100% of the FEGLI proceeds.24 The pivotal issue

in this case is whether Mr. Bradshaw dispatched the new Designation of Beneficiary form

such that it was “received before death . . . in the Office of Personnel Management.”

On February 2, 2017, Tiffany Bradshaw filed a claim to receive the death benefits

based on the December 29, 1994 Designation of Beneficiary form.25 On February 6, 2017,

MetLife issued payment to Ms. Bradshaw for $168,124.28, representing 50% of the FEGLI

proceeds.26 Broken down, that amount represented $28,000 in Basic Life Insurance, $5,000

in Option A Insurance, $135,000 in Option B Insurance, and $124.28 in delayed settlement

interest.27 Only after payment was issued to Ms. Bradshaw did MetLife determine that a

newer Designation of Beneficiary form had been submitted to the OPM.28 The OPM had

23 See Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 7, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(c), at 2;

Designation of Beneficiary Form (Nov. 29, 2016), Ex. A to Liddy Aff. (Dkt. 27-2) at 5.

24 See Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 6, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(d), at 2; Aceto

Aff. (Dkt. 35-1) ¶ 4(d), at 2.

25 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 6, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(c), at 2.

26 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 6, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(c), at 2.

27 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 6, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(c), at 2; Claim History,

Ex. B to Liddy Aff. (Dkt. 27-2) at 7.

28 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 6, at 4; Liddy Aff. (Dkt. 27-2) ¶ 4(d), at 2; Letter from

Jodie L. Ousley, d’Arcambal Ousley & Cuyler Burk, LLP, to Rick L. Denker (Dkt. 27-3)

at 1 (July 31, 2017) (“After the payment was sent to your client, OFEGLI received a later

Designation of Beneficiary from dated November 29, 2016 from the Office of Personnel

Management, which did not designate your client to receive any of the funds.”).

received the newer Designation of Beneficiary form on December 5, 2016—nine days

before Mr. Bradshaw’s death—as evidenced by a time stamp at the bottom of the form.29

Realizing its mistake, MetLife eventually issued payment to the correct beneficiary

listed on the November 29, 2016 Designation of Beneficiary form.30 MetLife also

contacted Ms. Bradshaw on April 26, 2017, to advise that she was not entitled to receive

or retain the FEGLI proceeds and to request that she remit to MetLife the money she had

already received.31 On July 31, 2017, an attorney representing MetLife wrote Ms.

Bradshaw to repeat the earlier communication.32 Despite repeated contact, Ms. Bradshaw

has not returned the FEGLI proceeds inadvertently paid to her. Consequently, MetLife filed

this lawsuit on February 8, 2018, asserting claims against Ms. Bradshaw for violating the

FEGLIA, for unjust enrichment, and for conversion.33 Ms. Bradshaw appeared through

attorney Michael Trevino and filed an Answer (Dkt. 10) on May 4, 2018. But since then,

Ms. Bradshaw has failed to respond to discovery—including requests for admission—and

to respond to MetLife’s Motion for Summary Judgment (Dkt. 27).34

29 Aceto Aff. (Dkt. 35-1) ¶ 4(i), at 2; Designation of Beneficiary Form (Nov. 29, 2016),

Ex. 2 to Aceto Aff. (Dkt. 35-1) at 6 (showing a time stamp that reads “REC’D OPM

12052016”).

30 Aceto Aff. (Dkt. 35-1) ¶ 4(l), at 3.

31 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 9, at 4; Liddy Aff. (Dkt. 27-2) ¶ 6, at 2.

32 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 9, at 4; Letter from Ousley to Denker (Dkt. 27-3), supra

note 28, at 1.

33 Pl.’s Compl. (Dkt. 1) ¶¶ 27–50, at 6–10.

34 Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 11, at 5–6; Potts Aff. (Dkt. 27-4) ¶¶ 2–3, at 1–2.

Analysis

As stated above, summary judgment mainly hinges on whether the new Designation

of Beneficiary form was “received before death . . . in the Office of Personnel

Management,” as required by 8705(a). If it wasn’t received before death, the “designation,

change, or cancellation of beneficiary . . . not so executed and filed has no force or effect.”35

Actual receipt is a pre-condition to effectiveness.36 Thus, the Court must verify strict

compliance with the statutory requirement of receipt before death.37 Upon review of the

facts presented in MetLife’s Motion for Summary Judgment (Dkt. 27) alone, Plaintiff fails

to demonstrate conclusively that the November 29, 2016 Designation of Beneficiary form

was received prior to Mr. Bradshaw’s death. Rather, the motion only presents evidence and

argument suggesting that the form was received after death.38 But Plaintiff’s Supplement

35 § 8705(a).

36 Metro. Life Ins. Co. v. Bush, 154 F.3d 1149, 1151–52 (10th Cir. 1998).

37 Id. at 1152 (citing Ward v. Stratton, 988 F.2d 65, 66, 68 (8th Cir. 1993); Brewer v.

Zawrotny, 978 F.2d 1204, 1206 n.2 (10th Cir. 1992); O’Neal v. Gonzalez, 839 F.2d 1437,

1439–40 (11th Cir. 1988)).

38 For example, paragraph 7 in MetLife’s Statement of Undisputed Facts asserts that “a

Designation of Beneficiary form dated November 29, 2016 had been submitted prior to the

Decedent’s death” and cites ¶ 4(d) of an affidavit executed by David Liddy, a Director at

MetLife. Pl.’s Mot. Summ. J. (Dkt. 27) ¶ 7, at 4 (emphasis added) (citing Liddy Aff. (Dkt.

27-2) ¶ 4(d), at 2). Counsel’s use of the term “submitted” suggests an avoidance of the

statute’s operative term “received”; but those terms are not interchangeable. To submit

something means “to send or commit for consideration,” Webster’s Third New

International Dictionary 2277 (Phil Babcock Gove, Ph.D., ed., 1993) (emphasis added), or

“[t]o bring up or present for criticism, consideration, or approval,” XVII Oxford English

Dictionary 46 (J.A. Simpson & E.S.C. Weiner, eds., 2d ed. 1989) (emphasis added). That

is quite the opposite of receiving.

Moreover, the cited affidavit has nothing to say about the form being submitted prior to

death. Instead, the affiant asserts that, “[a]fter payment was made to Defendant of 50% of

(Dkt. 35) corrects the date of death and clarifies the timeline of when the OPM received

the November 29, 2016 Designation of Beneficiary form. The Supplement (Dkt. 35)

conclusively demonstrates that the OPM received the November 29, 2016 Designation of

Beneficiary form on December 5, 2016, nine days prior to Mr. Bradshaw’s death. Under

the new form, Defendant was not a designated beneficiary and was not entitled to receive

or keep the FEGLI proceeds paid to her.

That fact now established, summary judgment hinges on whether Plaintiff is entitled

to judgment as a matter of law under theories of conversion or unjust enrichment. Under

the undisputed facts shown by the summary judgment record in this case, Plaintiff is not

entitled to prevail on its conversion claim as a matter of law. Oklahoma law regarding the

tort of conversion is well settled and the elements of liability are clear: “In terms of essential

elements, one seeking damages for conversion must plead and prove (a) he owns or has a

right to possess the property in question, (b) that defendant wrongfully interfered with such

property right, and (c) the extent of his damages.”39 Further, “[i]t is not necessary to

constitute a conversion that the property come into the defendant’s possession wrongfully.

Nor is it necessary that the alleged converter apply the property to his own use, or be in

the FEGLI Proceeds, Plaintiff received a later Designation of Beneficiary form, dated

November 29, 2016, which did not designate Defendant to receive any of the FEGLI

Proceeds” and cites the Designation of Beneficiary form dated November 29, 2016

attached thereto as Exhibit A. Liddy Aff. (Dkt. 27-2) ¶ 4(d), at 2 (emphasis added). The

affiant’s statement suggests that MetLife received the form after February 6, 2017—i.e.,

over two months after death.

39 White, 1979 OK CIV APP 6, ¶ 4, 591 P.2d at 350, cited in Steenbergen v. First Fed. Sav.

& Loan of Chickasha, 1987 OK 122, 753 P.2d 1330; accord Okla. Unif. Jury Instr.–Civ.

3d # 27-1 (rev. 2009).

bad faith.”40 However, “if the owner expressly or impliedly assents to or ratifies the taking,

use, or disposition of his property, he cannot recover as for a conversion thereof.”41 Where

the undisputed facts establish all elements of conversion, summary judgment may properly

be entered in Plaintiff’s favor.42 Plaintiff’s claim fails because it voluntarily gave the

FEGLIA proceeds to Defendant; Defendant did not take the proceeds without Plaintiff’s

consent. Thus, Plaintiffs’ motion for summary judgment on the conversion claim is denied.

Under the undisputed facts shown by the summary judgment record in this case,

however, Plaintiff is entitled to prevail on its unjust enrichment claim. Under Oklahoma

law, “[u]njust enrichment is a condition which results from the failure of a party to make

restitution in circumstances where not to do so is inequitable, i.e., the party has money in

its hands that, in equity and good conscience, it should not be allowed to retain.”43 Thus,

the claim hearkens back to the common-law claim of assumpsit for money had and

received44 or to a quasi-contract claim in which “sufficient privity” arises by “an

40 Steenbergen, 1987 OK 122, ¶ 9, 753 P.2d at 1332 (citing Fed. Nat’l Bank of Shawnee v.

Lindsey, 1935 OK 455, 43 P.2d 1036; U.S. Zinc Co. v. Colburn, 1927 OK 76, 255 P. 688;

Stack v. Gudgel, 158 P. 1144 (Okla. 1916); White v. Webber-Workman Co., 1979 OK CIV

APP 6, 591 P.2d 348).

41 Rose Bros., Inc. v. City of Alva, 1960 OK 231, ¶14, 356 P.2d 1083, 1085 (citing Okla.

Farmer’s Nat’l Grain Corp. v. Kirkendall, 1938 OK 337, 79 P.2d 570); accord Am.

Biomedical Grp., Inc. v. Techtrol, Inc., 2016 OK 55, ¶ 12, 374 P.3d 820, 825 (“Conversion

of personal property does not require the property be obtained by wrongful means, but it

must be either obtained or appropriated without the owner’s consent.”).

42 See, e.g., Steenbergen, 1987 OK 122, ¶ 12, 753 P.2d at 1333.

43 Okla. Dep’t of Sec. ex rel. Faught v. Blair, 2010 OK 16, ¶ 22, 231 P.3d 645, 658 (citing

Harvell v. Goodyear Tire & Rubber Co., 2006 OK 24, ¶ 18, 164 P.3d 1028, 1035).

44 See Gaines v. Miller, 111 U.S. 395, 387–98 (1884) (“Whenever one person has in his

hands money equitably belonging to another, that other person may recover it by assumpsit

implication of law that he [i.e., the person who has another’s money which he in equity and

good conscience has no right to keep] will pay it over.”45 The Oklahoma Supreme Court

has generally defined the elements of an unjust enrichment claim as: “(1) the unjust (2)

retention of (3) a benefit received (4) at the expense of another.”46 Although she did not

wrongfully take the $168,124.68 that MetLife sent her, Defendant’s wrongful retention of

the money after MetLife’s discovery of a mistake of fact is unjust and inequitable.

Defendant is not entitled to a windfall, and MetLife should not be held liable twice over

for the same FEGLI proceeds.47 Consequently, MetLife is entitled to summary judgment

on its unjust enrichment claim and to restitution as a matter of law.

for money had and received.” (citations omitted)), quoted in Brooks v. Hinton State Bank,

1910 OK 61, ¶ 7, 110 P. 46, 47; Rogers v. Lassiter, 1945 OK 333, ¶ 0, 164 P.2d 632, 633

(In “an action for money had and received[,] . . . [t]he primary question . . . is, has defendant

the possession of money belonging to plaintiff which he refuses to pay over? . . . While the

action for money had and received is a law action triable to a jury, its determination is

controlled by principles of equity and fair dealing”). See generally Clay v. Indep. Sch. Dist.

No. 1 of Tulsa Cty., 1997 OK 13, ¶ 20 n.34, 935 P.2d 294, 315 n.34 (Opala, J., dissenting),

for a discussion of the history behind assumpsit actions, including the 1602 English case

that first allowed the use of assumpsit to enforce a debt without proof that the defendant

had made a subsequent promise to pay.

45 Brooks, 1910 OK 61, ¶ 6, 110 P. at 47; cf. Great-West Life & Annuity Ins. Co. v. Knudson,

534 U.S. 204, 213 (2002) (discussing cases where “the plaintiff had a right to restitution at

law through an action derived from the common-law writ of assumpsit[,] . . . [which] w[as]

viewed essentially as [an] action[] at law for breach of contract (whether the contract was

actual or implied)”).

46 Blair, 2010 OK 16, ¶ 22, 231 P.3d at 658.

47 Accord Metro. Life Ins. Co. v. Faircloth, No. 7:12-cv-00350-BR, 2013 WL 12193433,

at *1 (E.D.N.C. July 31, 2013) (finding that MetLife was entitled to default judgment on

its unjust enrichment claim against a defendant widow who received an overpayment of

FEGLI proceeds); Metro. Life Ins. Co. v. Brown, No. 2:97-cv-02002, 1998 WL 1084680,

at *4 (W.D. Pa. Dec. 1, 1998) (granting summary judgment under the same circumstances).

Having so held, the Court turns lastly to Plaintiff’s prayer for prejudgment interest.

Prejudgment interest is only allowed when it is authorized by statute.48 Defendants do not

cite any particular statute, but title 23, section 6 of the Oklahoma Statutes is applicable in

this case because the amount of damages is a sum certain, $168,124.68. Section 6 provides

that “[a]ny person who is entitled to recover damages certain, or capable of being made

certain by calculation, and the right to recover which is vested in him upon a particular day,

is entitled also to recover interest thereon from that day, except during such time as the

debtor is prevented by law, or by the act of the creditor from paying the debt.”49 Interest is

allowed at the rate of 6% pursuant to title 15, section 266 of the Oklahoma Statutes.50

Because Defendant had no way of knowing she needed to repay MetLife until MetLife

informed her of the new Designation of Beneficiary form, interest should not begin to

accrue until April 26, 2017.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Deem Motion for

Summary Judgment as Confessed (Dkt. 29) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment

(Dkt. 27) is GRANTED as to Plaintiff’s unjust enrichment claim against Defendant

Tiffany Bradshaw. Accordingly, Defendant is ORDERED to pay Plaintiff $168,124.68

48 H.B. Krug v. Helmerich & Payne, Inc., 2015 OK 74, ¶ 23, 362 P.3d 205, 214; Sisney v.

Smalley, 1984 OK 70, ¶ 8, 690 P.2d 1048, 1050.

49 Okla. Stat. tit. 23, § 6 (2011).

50 Okla. Stat. tit. 15, § 266 (2011) (“The legal rate of interest shall be six percent (6%) in

the absence of any contract as to the rate of interest . . . .”).

plus prejudgment interest, calculated as simple interest at the statutory legal rate of six

percent (6%) per annum, from April 27, 2016.

IT IS SO ORDERED this 30th day of March, 2020.

PATRICK R. WYRICK

UNITED STATES DISTRICT JUDGE

14