Dwyer, E. v. Ameriprise Financial

Superior Court of Pennsylvania·Decided July 8, 2022·No. 519 WDA 2021·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EARL JOHN DWYER AND CHRISTINE : IN THE SUPERIOR COURT OF DWYER, HUSBAND AND WIFE : PENNSYLVANIA :

Appellants :

:

:

v. :

:

: No. 519 WDA 2021

AMERIPRISE FINANCIAL, INC., :

AMERIPRISE FINANCIAL SERVICES, :

INC., RIVERSOURCE LIFE :

INSURANCE COMPANY, JAMES E. :

ANDERSON, JR., AND DUANE :

DANIELS1 :

Appeal from the Judgment Entered April 26, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD01-006612

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J. MEMORANDUM BY LAZARUS, J.: FILED: July 8, 2022 Earl John Dwyer and Christine Dwyer (h/w) (collectively, Plaintiffs)

appeal from the judgment, entered in their favor, on jury and non-jury verdicts, in the amount of $244,172.57.2 After review, we affirm.

1 On March 19, 2019, the parties stipulated and the court entered an order decreeing that all claims against Defendant Duane Daniels were withdrawn from the instant lawsuit.

2 Broken down, Plaintiffs were awarded a total of $244,172.57— $75,000.00 in punitive damages, $45,569.81, plus interest, on their Unfair Trade Practices and Consumer Protection Law (UTPCPL) claim, and $123,602.76 in attorneys’ fees and costs.

In August 1985, Plaintiffs purchased a $50,000.00 flexible, premium adjustable whole life insurance policy3 (Policy) from Defendant, James Anderson. Anderson, an American Express Financial Advisor (AEFA)4 and IDS Life Insurance sales agent, completed the policy application and sold the policy to Plaintiffs after being trained by Ameriprise. The parties used Ameriprise forms in completing the insurance application. Plaintiffs’ premium was set at $432/year, or $108/quarterly, with minimum monthly payments of $35.13. The maturity date of the Policy was August 14, 2051, Earl Dwyer’s 95 th birthday. The Policy had a $50,000 death benefit, with a guaranteed minimum interest rate of 4.5% that was applied to the cash value of Policy; at the time the Policy was issued, an interest rate of 9.5% was applied. Anderson allegedly led Plaintiffs to believe that their quarterly payments would remain the same for the life of the Policy, no matter how interest rates varied.

Universal Life policies permit the insured to adjust his or her premiums and death benefits if the cash value is insufficient to cover the cost of the policy, as these polices earn interest rates that vary depending on what the insurance company is able to earn on the market. During the life of the current Policy, the interest rate varied from 4.5% to 9.5%. Assuming that Plaintiffs

3 These policies are known as “universal life” policies.

4AEFA was renamed Riversource Life Insurance Company. IDS Financial and IDS Life were purchased by AEFA. IDS’s and AEFA’s names were ultimately changed to Ameriprise, Inc.

continued to pay their original premiums quarterly, the Policy would have lapsed for insufficient funds in 2020, when Earl Dwyer was 64 years old.

On April 4, 2001, Plaintiffs instituted the underlying action against Appellees (Defendants) by filing a praecipe for a writ of summons. On August 23, 2007, Plaintiffs filed a complaint for negligent misrepresentation (Count I), fraudulent misrepresentation (Count II), violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) (Count III), breach of fiduciary duty (Count IV), and negligent supervision (Count V). Plaintiffs’ claims were based on their allegation that Anderson led them to believe that their quarterly payment would remain the same for the life of the policy. See Plaintiffs’ Complaint, 8/23/07, at ¶ 69 (alleging Defendants employed “deceptive sales practices” with regard to persons who purchased universal life insurance policies “sold by American Express and IDS agents using illustrations and policy information representing a planned premium to be paid by the policy holder, without disclosing that the planned premium was less than the premium amount necessary to keep the policy in force for the duration of the contract”). Plaintiffs sought damages in the amount of $44,570.50, representing the return of their total premium payments of $14,580.00,5 plus 6% interest.

5At the time of trial, Plaintiffs had paid a total of $14,580.00 in premiums over the approximately 35 years that the Policy had been in effect.

Prior to trial, the parties agreed that the issue of liability for the negligent and fraudulent misrepresentation claims and the question of whether Defendants’ conduct was outrageous, for purposes of awarding punitive damages, would be submitted to the jury (Phase I/Liability Trial). Then, assuming liability was found by the jury, the trial court would determine compensatory (return of premium) damages, including whether there should be a set-off for the benefit of the coverage Plaintiffs received over the years that the Policy was in effect. If the jury determined that Defendants’ conduct was outrageous, the jury would be given evidence of Defendants’ net worth to aid them in determining what, if any, amount of punitive damages should be awarded (Phase II/Punitive Damages Trial). Finally, based on the evidence presented at the Liability Trial, the trial court would render a verdict on Plaintiffs’ UTPCPL claim.

A jury trial commenced on March 19, 2019. On March 25, 2019, the jury returned a verdict6 in the Liability Phase in Plaintiffs’ favor on claims of

6 The jury’s verdict slip contained the following questions, the first two of which it answered in the affirmative:

Question 1:

Do you find that the Plaintiffs have proven by clear and convincing evidence that Defendants made a fraudulent misrepresentation of material fact to Plaintiffs upon which Plaintiffs justifiably relied to their financial harm?

Question 2:

fraudulent misrepresentation and negligent misrepresentation. Specifically, the jury found that Defendants made intentional, fraudulent misrepresentations in the process of the sale of the Policy and that Plaintiffs justifiably relied upon Defendants’ misrepresentations to their financial harm.

The jury also found that Defendants acted outrageously, thus warranting consideration of punitive damages. Prior to instructing the jury on punitive damages, the court, without objection, precluded Plaintiffs’ counsel from arguing anything in closing statements related to the design of the Policy. See N.T. Jury Trial (Phase II), 3/25/21, at 1130-33.7 In addition, the court

instructed the jury to consider only the conduct of Anderson8 when it

Do you find that Plaintiffs have proven by a preponderance of the evidence that Defendants made a negligent misrepresentation of material fact to Plaintiffs upon which Plaintiffs justifiably relied to their financial harm?

If you answered “Yes” to either Question 1 or Question 2, or both, proceed to Question 3.

Question [3]:

State the amount of punitive damages, if any, you award to Plaintiffs.

July Verdict, 8/17/22.

7 N.T. Jury Trial (Phase II), 3/26/21, at 1100 (“I’m not disputing that. . . . But I don’t want to hear argument again about the [‘]corporation wrote this policy. The corporation sold this policy.[’] That is not relevant. What’s relevant, again, i[s] fraudulent and negligent misrepresentation by Mr. Anderson in the sale of this insurance policy for which the corporation is responsible through vicarious liability.”). 8 The court also issued a jury instruction to that effect.

determined the amount of punitive damages. The court also permitted Plaintiffs to introduce evidence, in the form of Ameriprise’s and Riversource’s annual reports/statements, to determine corporate net worth9 for the calculation of punitive damages. Ultimately, the jury awarded Plaintiffs $75,000.00 in punitive damages.

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