Address v. Millstone

56 A.3d 323, 208 Md. App. 62, 2012 Md. App. LEXIS 128
CourtCourt of Special Appeals of Maryland
DecidedNovember 21, 2012
DocketNo. 2486
StatusPublished
Cited by11 cases

This text of 56 A.3d 323 (Address v. Millstone) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Address v. Millstone, 56 A.3d 323, 208 Md. App. 62, 2012 Md. App. LEXIS 128 (Md. Ct. App. 2012).

Opinion

KRAUSER, C.J.

Robert Millstone, together with one of his employees,1 brought an action in the Circuit Court for Montgomery County against his insurance broker, Marvin A. Address and Marvin A. Address & Associates, Inc. (collectively “Address”), alleging negligence, breach of contract, negligent misrepresentation, intentional misrepresentation, and constructive fraud in the sale, by Address, of numerous life insurance policies to them. Millstone later added, as plaintiffs, his two adult daughters, who were either beneficiaries or owners of one or more of the policies in question.

When a jury entered judgment in favor of Millstone on the breach of contract claim and awarded him $958,807.50 in damages, Address and his company noted this appeal,2 presenting three issues for our review:

I. Whether Millstone had standing to pursue his breach of contract claim against Address.
II. Whether there was sufficient evidence to submit Millstone’s breach of implied contract claim to the jury.
[66]*66III. Whether the jury’s finding of contributory negligence on Millstone’s negligence claims also barred recovery on his breach of contract claim.

Because we conclude that Millstone had neither standing to bring suit as to insurance policies which he, himself, did not own nor adduced sufficient evidence, at trial, that Address had breached any contract he purportedly had with Millstone, we shall reverse the judgment entered below, remand the case with instructions to enter judgment in favor of appellants, and forego addressing appellants’ third issue, as it is rendered moot by the foregoing rulings.

Background

The dispute in the instant case arises from a long-term business relationship between Robert Millstone, the CEO of Atlantic Recycling Group and a principal in Montgomery Scrap Corporation,3 and Marvin Address, an insurance broker and President of Marvin A. Address & Associates, Inc. Early in their relationship, Millstone, with the assistance of Address, purchased a series of term life insurance policies.

A term life insurance policy provides for the payment of a death benefit to one or more designated beneficiaries, in return for the payment of a fixed, periodic premium, if the insured dies during the term of the policy. This type of policy is sometimes described as “pure” insurance, because its price is determined by the amount required to pay for the death benefit, on average (the “cost of insurance”), and it does not accrue any additional “cash value” but, rather, at the expiration of a specified term, the policy terminates without value. Moreover, because the cost of insurance increases with age, renewal of a term policy entails substantially higher premiums than those charged for the expiring term policy. See Am. Elec. Power, Inc. v. United States, 136 F.Supp.2d 762, 766 [67]*67(S.D.Ohio 2001); Fairbanks v. Farmers New World Life Ins. Co., 197 Cal.App.4th 544, 547, 128 Cal.Rptr.3d 888 (2011).

Eventually, Millstone became interested in purchasing whole life insurance policies, because such policies, unlike term insurance policies, accumulate, over time, a “cash value” which may be redeemed or borrowed against by the policy owner.4 See, e.g., Dow Chem. Co. v. United States, 250 F.Supp.2d 748, 754 (2003), rev’d on other grounds, 435 F.3d 594 (6th Cir.2006); Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 342, 704 N.Y.S.2d 177, 725 N.E.2d 598 (1999). Moreover, a whole life policy usually provides more favorable terms for a potential borrower than a typical bank loan, since, by borrowing against the policies, an insured retains the option to defer paying back a policy loan or not paying it at all.

After communicating his objectives to Address, which were to protect his family and to be able to borrow money against his insurance policies, Millstone, from 1986 through 1999, directed Address to purchase eight whole life policies from the Phoenix Life Insurance Company (the “Phoenix whole life policies”). Of those eight policies, which had a combined death benefit of $7,773,728,5 Millstone retained ownership of seven and transferred ownership of the remaining one to his daughters. The seven Phoenix whole life policies owned by Millstone designated either his daughters, his wife, or both, as the beneficiaries, while the policy owned by his daughters named only them as beneficiaries.

As was anticipated, Millstone borrowed money against the seven insurance policies he owned, as the need arose in his business dealings. As he put it, he pursued a strategy of [68]*68using whole life insurance policies as a means of “forced savings” and furthermore developed a formula for estimating the amount of life insurance he should have in effect at any-given time, as a proportion of the value of his business.

During the years that Address served as Millstone’s insurance broker, Address was, in the words of Millstone, “always suggesting that [Millstone] engage in estate planning.” To that end, Address, in 2001, urged Millstone to put his insurance in an irrevocable life insurance trust (an “ILIT”) for estate planning purposes. Such a plan required Millstone to periodically transfer funds to the ILIT. A notice would then be sent to the beneficiaries, informing them of the opportunity to withdraw some or all of those funds but with the tacit understanding that they would not, so that the funds would be deemed to constitute a “completed gift” to the ILIT. Once the gift was completed, the funds belonged to the ILIT, not to Millstone, and would then be used by the ILIT to pay life insurance premiums when they became due. This procedure ensured that the life insurance policies and the death benefits payable under them would be excluded, under Internal Revenue Service rules, from Millstone’s gross estate upon his death, thereby resulting in a lower estate tax.

Millstone claimed that he told Address that he had no objection to the plan, as long as he could continue to borrow money against the policies. Address, on the other hand, denies this, pointing out that the retention of such a right would have been inconsistent with the irrevocable trust. For to permit the “settlor,” that is, the person who establishes the trust—in this instance, Millstone—to borrow against the trust’s life insurance policies, now owned by the ILIT, would have the effect of invalidating the trust, thereby extinguishing the tax benefits it offers.

In any event, Millstone directed Address to work with Millstone’s attorney, Ron Lyons, to create the ILIT. In the spring of 2001, Address called Lyons to discuss the creation of the ILIT. “[A]gree[ing],” as Lyons put it, “that an ILIT was an appropriate vehicle to put the insurance in,” Lyons drafted [69]*69the documents establishing the trust, naming himself and Millstone’s wife as trustees. Sometime later, in May of 2001, Lyons, Millstone, Mrs. Millstone, and Address met in Lyons’s law office, where they executed the documents establishing the insurance trust.

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Bluebook (online)
56 A.3d 323, 208 Md. App. 62, 2012 Md. App. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/address-v-millstone-mdctspecapp-2012.