dissenting.
I dissent. Throughout this lawsuit, TIAA-CREF admitted that Dr. Hong’s deferred annuity contracts provided him with four different periodic payment options. The only issue was whether, under these contracts, he was also entitled to receive his annuity benefits in a single, lump-sum payment. Dr. Hong contended that these contracts provided for lump-sum distributions; TIAA-CREF disagreed. In March of 1982, Dr. Hong exercised his undisputed right to receive his annuity benefits under one of the four periodic payment plans. I do not agree with the majority’s conclusion that, by exercising this right, Dr. Hong entered into substitute contracts, thereby extinguishing the original contracts and eliminating his alleged right to a lump-sum distribution.
Less than one year after Dr. Hong filed suit against TIAA-CREF seeking a lump-sum distribution of his annuity benefits, he wrote to the company asking for the initiation of benefit payments under one of the periodic payment options. In that letter, Dr. Hong gave no indication of any intention to relinquish his claim to a lump-sum distribution. He simply requested payment under one of the undisputed options in the contracts. In its response to this letter, TIAA-CREF did not mention the ongoing litigation either. The letter merely provided an application form to Dr. Hong, which TIAA-CREF requested that he complete and return in order that it might initiate benefit payments. In addition, an attached “checklist” instructed him to return his TIAA contract and his CREF certificate.
Dr. Hong did as he was told; he completed, signed, and returned the application form, along with copies of the contracts that were the subject of this litigation. In a letter acknowledging receipt of this material, TIAA-CREF informed Dr. Hong that he must return the original contract and certificate. Again, there was no mention of the lawsuit. Dr. Hong returned the original contract and certificate to TIAA-CREF. It, in return, sent him the two documents that the majority finds constitute substitute contracts.
In reaching its conclusion, the majority relies on language in the application form, one of TIAA-CREF’s letters to Dr. Hong, and the replacement documents that TIAA-CREF sent to Dr. Hong upon receipt of his originals. The majority’s reliance on the replacement documents is clearly misplaced. Although the language in the documents unequivocally manifests TIAA-CREF’s intent to discharge all obligations under the original contracts, it hardly indicates Dr. Hong’s intent. He did not sign these purported contracts. He never even read these documents prior to completing the application form and surrendering the original contracts. He simply received these documents in the mail after the fact.
The majority relies upon two pieces of evidence in its conclusion that Dr. Hong intended to substitute the new annuity con*875tracts for the old. First, Dr. Hong signed the application form below a provision which read in part, “I understand that I cannot change my choice of option * * * once payments begin.” Second, in the letter informing Dr. Hong of the requirement that he surrender the original contracts, TIAA-CREF noted that the provisions of the initial contracts would have “no effect” after payments began under the option selected by Hong. This evidence does not support a determination that no genuine issue of fact exists as to the question of intent.
None of the correspondence mentions the lawsuit, much less discusses the effect of Dr. Hong’s actions on his disputed claim for a lump-sum distribution. These actions were taken only three months after the district court denied TIAA-CREF’s motion for summary judgment, confirming that the terms of the contracts were indeed ambiguous as to the availability of a single, lump-sum payment option. No dispute exists that Dr. Hong always possessed the right to receive benefits under one of the periodic payment options. TIAA-CREF simply followed its normal procedure, as if an election of option had been made in the absence of any ongoing controversy as to the terms of the original contracts. Dr. Hong merely did what he was told in order to receive his benefits. Had he refused, TIAA-CREF would have presumably withheld any payment, even that to which Dr. Hong was clearly entitled, until completion of the lawsuit. In light of all this, I do not think the language relied on by the majority can be said to demonstrate conclusively that Dr. Hong substituted the new contracts for the old, thus effectively extinguishing any claim to a lump-sum distribution under the old.
Accordingly, I would hold that the district court erred in summarily dismissing the suit and remand the ease for further proceedings.