ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is the motion for summary judgment of defendants Great-West Life & Annuity Insurance Company and Regions Investment Services, Inc. For the following reasons, the Court GRANTS the motion.

I. BACKGROUND

On April 29, 2010, plaintiff Latoya Rideau and her husband, Christopher Rideau, visited the Regions Bank located at 947 State Street, Jackson, Mississippi,1 and met with agent Tammy Lunsford in order to purchase a $150,000 Great-West life insurance policy for Mr. Rideau.2 Lunsford verbally asked the Rideaus a series of identification, background, and coverage questions contained in the policy application.3 Lunsford then entered the Rideau's "yes" or "no" responses into a computer system that creates a completed application, which is then printed for the applicant's review and signature.4 Plaintiff claims that the computer screen was facing Lunsford at all times and that the Rideaus were unable to see the questions.5

The policy application contained the following question to be answered "yes" or "no":

In the past five years, have you

Plaintiff claims to have told Lunsford at some point during their meeting that Mr. Rideau had been released from prison the previous day, even showing Mr. Rideau's prison release papers as a form of identification.7 She further alleges that when asked whether Mr. Rideau had been incarcerated, the Rideaus told Lunsford that he had been convicted of a felony eight and a half years earlier.8 According to plaintiff, Lunsford responded "Oh, that was not in the last five years so we are good."9 Lunsford does not recall her interaction with the Rideaus, but she also does not recall any applicant disclosing a past incarceration to her.10

Lunsford printed the completed application and gave it to Christopher for his signature.11 The application contained the following certification above the signature block:

Plaintiff alleges that Mr. Rideau signed the application without reading it.13 Great-West issued the policy on May 6, 2010, based on the responses contained in the application and a medical background check. It is undisputed that Mr. Rideau's application would have been denied if he had answered "yes" to the incarceration question or to any other criminal or medical history question in the application.14

Christopher Rideau died from gunshot wounds in July of 2011, and plaintiff, as the sole beneficiary of the policy, submitted a claim shortly thereafter.15 Because Rideau died within the two-year contestable period, Great-West investigated.16 It learned that Rideau had been convicted of second-degree kidnapping and assault on a police officer and had been released from prison the day before he applied for the insurance policy.17 Great-West's Senior Claims Manager concluded the Mr. Rideau had falsely answered the incarceration question and that the omission constituted a material misrepresentation warranting rescission of the policy.18 The Claims Manager informed plaintiff of her decision in a letter dated August 31, 2011, in which she enclosed a refund check for the premiums paid on the policy.19 The letter read in part:

Approximately one month later, plaintiff returned the refund check along with an appeal letter, which stated in part:

Great-West denied plaintiff's appeal in a letter dated October 6, 2011, which stated in part:

Plaintiff negotiated the check on October 13, 2011, approximately four and a half months before the check's expiration date.22

Five months later, plaintiff's counsel sent another letter to Great-West disputing the denial of the insurance benefits.23 The letter indicated that plaintiff would file suit if she did not receive the policy proceeds within 14 days.24 Great-West responded on March 27, 2012, again denying the claim.25

On May 17, 2012, plaintiff sued Great West, Regions, and Tammy Lunsford.26 Great-West removed the case to federal court on July 3, 2012.27 Lunsford was dismissed as a party in an order dated March 13, 2013.28 Great-West and Regions filed this motion for summary judgment on September 23, 2013.

II. LEGAL STANDARD

Summary judgment is warranted when "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." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). The Court must draw all reasonable inferences in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985) (internal quotation marks omitted).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence that would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir.1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548.

The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. Id. at 325, 106 S.Ct. 2548. See also Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'") (citing Celotex, 477 U.S. at 332, 106 S.Ct. 2548).

III. DISCUSSION

Defendants argue that summary judgment is appropriate because plaintiff accepted Great-West's rescission of the policy and waived her contractual rights by negotiating the premium refund check after her appeal was denied. They rely on Avemco Ins. Co. v. Northern Colorado Air Charter, Inc., 38 P.3d 555 (2002), in which the Colorado Supreme Court examined the principles of mutual rescission as articulated by numerous jurisdictions before concluding that the negotiation of a refund check generally constitutes acceptance of rescission. It held:

Id. at 559 (citations omitted). Several jurisdictions agree that mutual rescission depends on the intent of the parties as evidenced by their acts and the attending circumstances, and that the act of negotiating a refund check after notice of cancellation at least raises an inference of mutual rescission. See, e.g., Pruco Life Ins. Co. v. Wilmington Trust Co., 721 F.3d 1, 7-8 (1st Cir.2013) (applying Rhode Island law); Lundy v. Lititz Mut. Ins. Co., 232 S.C. 1, 100 S.E.2d 544, 547 (1957); Peterson v. New York Life Ins. Co., 185 Minn. 208, 240 N.W. 659, 660 (1932); Mut. of Omaha Ins. Co. v. Korengold, 308 Minn. 457, 241 N.W.2d 651, 652 (1976); Miller v. Montgomery, 77 N.M. 766, 427 P.2d 275, 276 (1967) (citing Warren v. New York Life Ins. Co., 40 N.M. 253, 58 P.2d 1175, 1180 (1936) (rescission found based solely on retention of check for six months, even though it was never cashed)); First Penn-Pac. Life Ins. Co. v. Evans, 313 Fed.Appx. 633, 637 (4th Cir.2009) (applying Maryland law).

The only Louisiana case on point29 is Massachusetts Indemnity & Life Insurance Company v. Humphreys, 644 So.2d 818 (La.Ct.App.1994), a decision of the Louisiana First Circuit Court of Appeal involving another plaintiff who negotiated a premium refund check after being informed that a life insurance policy was void. In Humphreys, the Jacksons sought to obtain a spouse rider for the husband on the wife's life insurance policy. Humphreys, Mr. Jackson's former wife, already had a spouse rider on his life. Id. at 819. Under the insurer MILICO's policies, the rider could not be transferred until Humphreys consented in writing. Id. MILICO mistakenly informed Mrs. Jackson that the rider could be transferred without Humphreys's signature upon submission of a judgment of divorce and two policy change application forms. Id. After Mrs. Jackson followed these instructions, MILICO issued the spouse rider. Id. at 820. The next day, however, MILICO's vice president informed Mrs. Jackson by letter that without Humphreys's signature, the spouse rider could not be transferred. Id. A check refunding the premium was included with the letter, and Mrs. Jackson negotiated the check. Id.

When Mr. Jackson died five months later, Mrs. Jackson submitted a claim for the insurance proceeds, which the insurer denied. Id. She sued the insurer, and the district court determined that she was entitled to the proceeds. Id. On appeal, MILICO argued that by cashing the refund check after being informed that the coverage was improvidently issued, Mrs. Jackson had assented to rescission of the coverage. Id. The Court dismissed MILICO's attempts to characterize the spouse rider as "invalid," noting that the insurer's error in issuing the coverage did not vitiate its consent to the contract, which was valid from its inception. Id. After observing that there were no allegations of misrepresentation in the case, the Court then turned to question of whether Mrs. Jackson nonetheless consented to rescission of the rider:

Id.

Plaintiff reads Humphreys to preclude a finding of knowing and voluntary consent to rescission whenever the insurer would not be able to prevail on the merits of its misrepresentation defense. To interpret the Court's holding in this way would eviscerate the concept of mutual rescission altogether. Courts would be required to consider an insurer's misrepresentation defense on the merits first. Only if the defendant had the right to rescind would consent to rescission be valid, and under such circumstances, consent to rescission would be immaterial because the insurer would have the right to rescind the policy unilaterally.

The Court reads Humphreys as standing for the more sensible proposition that an insurer may not declare void a policy without any good-faith basis for disputing its validity and then rely on the insured's decision to negotiate a refund check as absolving it of liability. It was, as the Humphreys court noted, misleading for MILICO to inform the insured that the policy was void when MILICO knew the insured had made no misrepresentations in her application. It does not follow that an insurer misleads an insured each time it attempts to rescind a policy it considers void. This is especially true when the insurer clearly explains the basis for its good-faith belief that a policy is void due to misrepresentation.

This reading of Humphreys is consistent with the rule of other jurisdictions that an insurer must have a good-faith basis for seeking rescission. See Avemco, 38 P.3d at 559 (holding that mutual rescission can be effective notwithstanding contested grounds for rescission, so long as there is a good-faith basis for the dispute). Absent bad faith, an insurer need not demonstrate its ability to succeed on the merits at trial. See Pruco, 721 F.3d at 9-10 (noting that under Rhode Island law, "whether a party to a contract has a valid right to rescind is relevant only in the case of a unilateral rescission claimed as of right by the rescinding party, not in a case of mutual rescission.") (internal quotation marks omitted)).

Here, there is simply no evidence that Great-West acted in bad faith when it informed plaintiff that it considered the policy void. Great-West presented plaintiff with indisputable evidence that the incarceration question had been answered falsely, and it explained (correctly) that the policy would not have issued if the question had been answered truthfully. It pointed to language in the contract that it believed supported its position that Christopher was responsible for the misrepresentations even if he verbally informed Lunsford that he has been incarcerated. Whether Great-West's position was correct as a matter of law is irrelevant, as it was not without some support and was far from frivolous. See English v. Jackson Nat. Life Ins. Co., CIV.A. 97-30092, 1997 WL 464613 (5th Cir. Aug. 1, 1997).

Moreover, the facts and circumstances of this case compel the conclusion that the plaintiff acted knowingly and voluntarily when she negotiated the check. That she held on to the check for a month while contemplating her course of action and ultimately returned it along with her appeal letter demonstrates her understanding of the consequences of accepting the refund. Moreover, the wording of the letter suggests that plaintiff was sufficiently educated and informed to understand Great-West's position. Finally, plaintiff waited five months after cashing the check before she renewed her objections. See Klanian v. New York Life Ins. Co., 68 R.I. 126, 26 A.2d 608, 612-13 (1942) (suggesting that an insured's decision to wait a significant amount of time before negotiating a refund check, or after negotiating the check and before objecting to the rescission, reinforces the inference of mutual rescission); see also Pruco, 721 F.3d at 8 (citing Klanian for the same proposition). Plaintiff's argument that she negotiated the check because of its expiration date is unavailing. The check would have remained valid for nearly five months after her appeal was denied, leaving plenty of time to respond to the denial or to file suit.

"[A] party's unexpressed intentions, evidenced by nothing more than that party's bare, post hoc assertions," are insufficient to overcome an inference of mutual rescission. Pruco, 721 F.3d at 8; see also Avemco, 38 P.3d at 563 ("[I]n order to overcome the inference of rescission, the insured must offer evidence, beyond a subjective intent not to rescind, to rebut the acts of the insurer and the insured.") Plaintiff has produced no evidence that would overcome the inference of mutual rescission raised by the facts and circumstances of this case. Because the Court holds that plaintiff consented to rescission when she negotiated the premium refund check, it need not determine whether Christopher Rideau's failure to correct the answer to the incarceration question arose to the level of misrepresentation.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment.