
    MINNESOTA MUTUAL LIFE INSURANCE COMPANY v. Dewey Joe McDONALD, Jr.
    Civ. A. No. B-87-00906-CA.
    United States District Court, E.D. Texas, Beaumont Division.
    Oct. 28, 1989.
    
      Hollis Horton, Orgain, Bell & Tucker, Beaumont, Tex., for plaintiff.
    George Michael Jamail and Wendell C. Radford, Benckenstein, Oxford, Radford & Johnson, Beaumont, Tex., for defendant.
   MEMORANDUM OPINION

COBB, District Judge.

The plaintiff, Minnesota Mutual Life Insurance Company, filed suit against the defendant, Dewey Joe McDonald, Jr., alleging that the defendant had fraudulently claimed payment on a life insurance policy. McDonald’s common-law wife, Lolita McDonald, was the insured on that life insurance policy. The plaintiff now moves for summary judgment claiming that the defendant provided a fraudulent death certificate for Lolita McDonald, and seeks recovery through summary judgment of the money the plaintiff paid to the defendant in reliance on that death certificate.

A movant is entitled to summary judgment only if, viewing the facts in the light most favorable to the non-movant, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In this case, the central material issue of fact, whether Lolita McDonald is alive or dead, is hotly disputed. Even if the affidavits provided by the plaintiff conclusively proved no issue of material fact existed as to the veracity of the death certificate, the central fact the plaintiff must prove to obtain the recovery it seeks in its motion for summary judgment is that Lolita McDonald is not dead, and that the defendant fraudulently claimed that she was. The materials provided in support of the motion for summary judgment do not prove that, and certainly do not carry the heavy burden imposed on a movant for summary judgment.

Accordingly, the plaintiff’s motion for summary judgment is DENIED. 
      
      . This court does not now rule that the death certificate has in fact been conclusively shown lo be fraudulent.
     