Burstein v. First Penn-Pacific Life Insurance

209 F.R.D. 674, 2002 U.S. Dist. LEXIS 18381
CourtDistrict Court, S.D. Florida
DecidedSeptember 18, 2002
DocketNo. 01-985-CIV
StatusPublished

This text of 209 F.R.D. 674 (Burstein v. First Penn-Pacific Life Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burstein v. First Penn-Pacific Life Insurance, 209 F.R.D. 674, 2002 U.S. Dist. LEXIS 18381 (S.D. Fla. 2002).

Opinion

ORDER

GRAHAM, District Judge.

THIS CAUSE came before the Court upon Defendant First Penn-Pacific Life Insurance Company’s Motion for Judgment on the Pleadings and Plaintiffs Motion for Class Certification.

THE COURT has reviewed the Motion, the pertinent portions of the record, and is otherwise fully advised in the premises.

BACKGROUND

In March 1998, Plaintiff Rhonda Burstein (“Plaintiff’), acting through an independent insurance broker, completed an application for a life insurance policy with Defendant First Penn-Pacific Life Insurance Company (“Defendant”). The application provided, in pertinent part:

1. Unless the policy becomes effective as specified in the Conditional Receipt attached to this application, the [sic] First Penn-Pacific will incur no liability until: a. any policy applied for has been delivered to and accepted by [the insured]; and b. the first premium is paid.

(Compl.Ex. B.) Because Plaintiff did not submit payment with her application, a Conditional Receipt was not issued and the submission of the application did not provide Plaintiff with any current insurance coverage.

Defendant delivered the policy to Plaintiff by way of her insurance broker.1 The policy had a “Policy Date” of May 6, 1998. As defined in the application, the Policy Date is “[t]he effective date of coverage under this Policy if all the terms of the application are satisfied including the payment of the premium due. This is the date from which policy anniversaries, policy years, policy months and premium due dates are determined.” (Compl.Ex. C.) On or around July 30, 1998, Plaintiff tendered her initial annual premium check of $2,485.00 to Defendant. Accordingly, based on the language in the policy, coverage began on July 30,1998.

In April 1999, Defendant sent Plaintiff a notice that her annual premium payment of $2,485.00 was due, and Plaintiff timely remitted the full premium. This process was repeated in 2000, with Plaintiff paying her annual premium of $2,485.00 for her third policy year in April 2000.

On March 12, 2001, Plaintiff, on behalf of herself and all class members, filed her class-action Complaint alleging four counts: I) violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c); II) breach of contract; III) unjust enrichment; and IV) injunctive relief. Plaintiffs primary claim is that Defendant knowingly misrepresented that for her first year of coverage, Plaintiff would receive twelve months of coverage in return for her annual premium payment, when in fact Plaintiff received only nine months of coverage.

On May 3, 2001, Defendant filed its Motion to Dismiss, arguing that all four Counts fail to state a claim, and that Count I is completely barred by the McCarran-Ferguson Act, 15 U.S.C. §§ 1101, et seq.

On July 13, 2001, the Court granted Defendant’s Motion to Dismiss on the basis of the McCarran-Ferguson Act. Specifically, the Court determined that allowing Plaintiffs class action RICO claim to progress would result in the impairment of Florida’s administrative regime by skirting both the 60 day notice requirement and the prohibition [676]*676against class action lawsuits set forth in Florida Statute § 624.155.

On July 27, 2001, Plaintiff moved for rehearing, arguing that the Court’s dismissal of Plaintiffs claims was both prejudicial and manifestly erroneous as a matter of law. In particular, Plaintiff argued that Florida Statute § 624.155 does not regulate the business of insurance and therefore cannot be a basis for McCarran-Ferguson Act reverse preemption and that RICO does not invalidate, impair or supercede Florida Statute § 624.155. On February 11, 2002, the Court reconsidered its Order granting Defendant’s motion to dismiss and held that the McCar-ran-Ferguson Act does not bar Plaintiffs RICO claims.

On April 16, 2002, Defendant filed its Motion for Judgment on the Pleadings, arguing that 1) upon review of the pleadings and the contract, Plaintiff cannot state a claim for breach of contract; 2) Plaintiffs failure to allege reliance in her RICO mandates the dismissal of that claim and 3) Plaintiffs RICO claim is barred by the McCarran-Ferguson Act. With respect to its argument that Plaintiff failed to allege reliance, Defendant relies on the Eleventh Circuit’s opinion in Sikes v. Teleline, Inc., 281 F.3d 1350 (11th Cir.2002), decided on February 13, 2002, just two days after this Court issued its ruling on Plaintiffs motion for reconsideration.

In addition to the Defendant’s Motion for Judgment on the Pleadings, Plaintiffs Motion for Class Certification is pending before the Court. Defendant opposes this motion, arguing Plaintiff has failed to meet the requirements set forth in Rule 23(a) and Rule 23(b)(3).

DISCUSSION

I. MOTION FOR JUDGMENT ON THE PLEADINGS

Standard

A judgment on the pleadings is appropriate only when it is demonstrated “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (applying standard for a motion to dismiss). For the purpose of the motion for judgment on the pleadings, the complaint is construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff are accepted as true. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

A. Plaintiffs RICO Claim

In Count II of her Complaint, Plaintiff alleges a RICO claim predicated on mail fraud. Defendant moves for judgment on the pleadings on this Count, arguing 1) it is barred by the McCarran-Ferguson Act;2 and 2) Plaintiff failed to allege reliance.

Two days after this Court reconsidered its order dismissing Plaintiffs claims, the Eleventh Circuit issued its opinion in Sikes v. Teleline, Inc., 281 F.3d 1350 (11th Cir.2002). In Sikes, the Eleventh Circuit held that “when a plaintiff brings a civil RICO case predicated upon mail or wire fraud, he must prove that he was ‘a target of the scheme to defraud’ and that he ‘relied to his detriment on misrepresentations made in furtherance of the scheme.’ ” Id. at 1360 (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir.1991). The Eleventh Circuit, in making this finding, clearly stated that reliance must be alleged and proven and cannot be presumed. Id. at 1361. Accordingly, pursuant to Sikes,

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Related

Jackson v. Motel 6 Multipurpose, Inc.
130 F.3d 999 (Eleventh Circuit, 1997)
Sikes v. Teleline, Inc.
281 F.3d 1350 (Eleventh Circuit, 2002)
Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Hishon v. King & Spalding
467 U.S. 69 (Supreme Court, 1984)
Andrews v. American Telephone & Telegraph Co.
95 F.3d 1014 (Eleventh Circuit, 1996)
Gibbs Properties Corp. v. Cigna Corp.
196 F.R.D. 430 (M.D. Florida, 2000)

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Bluebook (online)
209 F.R.D. 674, 2002 U.S. Dist. LEXIS 18381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burstein-v-first-penn-pacific-life-insurance-flsd-2002.