Moelis v. Berkshire Life Insurance

451 Mass. 483
CourtMassachusetts Supreme Judicial Court
DecidedMay 22, 2008
StatusPublished
Cited by10 cases

This text of 451 Mass. 483 (Moelis v. Berkshire Life Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moelis v. Berkshire Life Insurance, 451 Mass. 483 (Mass. 2008).

Opinion

Cowin, J.

The plaintiffs in these consolidated actions, who are purchasers of life insurance from the defendant, Berkshire Life Insurance Company (Berkshire), moved to certify a nationwide class of Berkshire policyholders under G. L. c. 93A, § 9 (2), or, in the alternative, a Massachusetts-based class.3 The plaintiffs allege that Berkshire engaged in deceptive practices in violation of G. L. c. 93A, §§ 2 and 9.4 A judge in the Superior Court denied certification of the nationwide class on the ground that the court could not properly exercise personal jurisdiction over non-Massachusetts residents in the putative class. She also denied Statewide certification, concluding that the individual plaintiffs’ potential differences with respect to Berkshire’s statute of limitations defense precluded certification. The judge denied the motion for Statewide certification without prejudice. She [485]*485then reported her decision to the Appeals Court pursuant to Mass. R. Civ. R 64 (a), as amended, 423 Mass. 1403 (1996). We transferred the case here on our own motion, and now affirm.5

Facts. Berkshire is a Massachusetts mutual insurance company that sells life insurance policies through its own agents as well as independent insurance brokers in offices across the country.6 In approximately 1980, Berkshire began marketing the “disappearing premium” concept, a method of paying premiums on a traditional life insurance policy by which a policyholder paid future premiums with dividends instead of receiving such dividends directly. A sufficient accumulation of dividends would allow the policyholder’s obligation to pay premiums out of his or her own pocket to “disappear” after a set number of years. Customers were provided with computer-generated illustrations demonstrating when their premiums would likely “disappear.”

The plaintiffs in these consolidated actions, who would be the named plaintiffs in the proposed class action, Herbert I. Moelis, Richard F. Tucker, Edward F. Coyman, and Helen F. Coyman, purchased the disappearing premium policies from Berkshire agents or from independent brokers in their respective home States in different years. After various periods of time, each of the plaintiffs learned that his or her premium would not disappear as originally illustrated. Each separately sued Berkshire, claiming that the company engaged in deceptive practices in violation of Massachusetts consumer protection law, G. L. c. 93A, §§ 2 and 9, by failing to inform policyholders adequately that dividend reductions could increase the number of years they had to pay premiums.

The plaintiffs sought to certify a nationwide class under G. L. c. 93A, § 9 (2), of 4,028 policyholders residing in forty-three different States, the District of Columbia, and Puerto Rico, as [486]*486well as fourteen policyholders residing outside the United States. The plaintiffs’ proposed class included:

“All persons who own or owned a whole life policy identified as a Disappearing Premium or Premium Offset policy issued by Berkshire Life Insurance Company after January 1, 1980, excluding those policyholders whose policies went out-of-force due to death of the insured prior to the date when the obligations to make out-of-pocket payments was to cease or disappear, and further excluding those policyholders from whom Berkshire obtained a signed Statement entitled “Disappearing Premium Disclosure,” a practice Berkshire adopted on or about March 15, 1993.”

In the alternative, they petitioned to certify a class of Massachusetts policyholders composed of 718 Massachusetts residents.

Discussion. We review the denial of a motion for class certification for an abuse of discretion. Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 606-607 (1985).

1. Nationwide class certification. The Superior Court judge properly denied the plaintiffs’ motion to certify a national class. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811 (1985) (Shutts), the United States Supreme Court held that the due process clause of the Fourteenth Amendment to the United States Constitution gave “some protection” to nonresident plaintiffs, as well as nonresident defendants, from the jurisdiction of a forum State seeking to adjudicate their claims.7 Nonresident defendants must have established sufficient minimum contacts in a forum State for a court of that State to assert personal jurisdiction over them. See, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 319-320 (1945). However, “[bjecause States place fewer burdens upon absent class plaintiffs than they do upon absent defendants in nonclass suits, the Due Process Clause need not and does not afford the former as much protection from [Sjtate-court jurisdiction as it does the latter.” Shutts, supra at 811. Thus, a State court may bind an absent [487]*487plaintiff in an action for money damages even if he or she lacks minimum contacts with the forum, so long as basic due process protections are provided. Id. at 811-812. Those protections include notice, an opportunity to be heard and to participate in the litigation, and the opportunity for the plaintiff to remove himself or herself from the class. Id. at 812.

In the instant case, the Superior Court judge correctly refused to certify a national class on the ground that the court could not properly assert personal jurisdiction over out-of-State class plaintiffs. The judge first determined that neither G. L. c. 93A, § 9 (2), nor Mass. R. Civ. R 23, 365 Mass. 767 (1974), permits a judge to allow individual parties to remove themselves or “opt out” of a class action. See Weld v. Glaxo Wellcome Inc., 434 Mass 81, 84 (2001); Fletcher v. Cape Cod Gas Co., supra at 602. Thus, the due process protections prescribed by Shutts as an alternative to the traditional minimum contacts test could not be satisfied.

The judge then turned to the traditional “minimum contacts” test to evaluate whether asserting jurisdiction over nonresident plaintiffs comported with due process. The plaintiffs here, relying on the statement in Shutts that the due process clause affords less protection to nonresident plaintiffs than it does to nonresident defendants, Shutts, supra at 811, argued that the judge should require less substantial contact between nonresident plaintiffs and the forum State than that required by the traditional minimum contacts of nonresident defendants. The judge rejected this argument. The plaintiffs cited no cases, and the judge found none, identifying the parameters of a lesser standard for minimum contacts applicable to nonresident plaintiffs in a class action.

There was no error here in applying the traditional defendant minimum contacts test to nonresident plaintiffs in the absence of an opt out provision. The Shutts decision did not explicitly address the personal jurisdiction standard to apply to nonresident plaintiffs when one of the Shutts alternative due process protections is absent. However, at least two United States Courts of Appeals have interpreted Shutts

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Bluebook (online)
451 Mass. 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moelis-v-berkshire-life-insurance-mass-2008.