Wells Fargo Bank, N.A. v. Pruco Life Insurance Company

200 So. 3d 1202, 41 Fla. L. Weekly Supp. 403, 2016 Fla. LEXIS 2073, 2016 WL 5242593
CourtSupreme Court of Florida
DecidedSeptember 22, 2016
DocketSC15-382
StatusPublished
Cited by9 cases

This text of 200 So. 3d 1202 (Wells Fargo Bank, N.A. v. Pruco Life Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells Fargo Bank, N.A. v. Pruco Life Insurance Company, 200 So. 3d 1202, 41 Fla. L. Weekly Supp. 403, 2016 Fla. LEXIS 2073, 2016 WL 5242593 (Fla. 2016).

Opinions

POLSTON, J.

This case is before the Court for review of two questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which that court has indicated there appears to be no controlling precedent.1

[1203]*1203In this dispute over the validity of three stranger-originated life insurance (STOLI) policies, the certified questions involve two Florida statutes, namely section 627.404(1), requiring that an insurable interest exist at the inception of each life insurance policy, and section 627.455, providing that an insurance policy is incontestable two years after its issuance. Specifically, the Eleventh Circuit , certified the following, questions:

1. Can a party challenge an insurance policy as being void ab initio for lack of the insurable interest required by Fla. Stat. § 627.404 if that challenge is made after expiration of the two-year contest-ability period mandated by Fla. Stat. § 627.455?,
2, Assuming that a party can do so, does Fla. Stat. § 627.404 require that an individual with the required insurable interest also procure the insurance policy in good faith?

Pruco Life Ins. Co. v. Wells Fargo Bank, N.A., 780 F.3d 1327, 1336 (11th Cir.2015).

As explained below, we decline to read the statutes at issue contrary to their plain language in order to create a STOLI-poli-cy exception to section 627.455’s two-year contestability period. A STOLI transaction “is when an investor actively seeks out elderly people to purchase life insurance with the promise of ‘no risk’ money in exchange for transferring the policy to the investor after the general two year incontestability period has expired.” 5 Couch on Insurance § 67.3 (2015 ed.). While such an exception might be wise public policy, that decision is for the Florida Legislature, not this Court.

BACKGROUND

In Florida, insureds have long been permitted to sell their life insurance policies on the secondary market in accordance with Florida law permitting the assignment of such policies unless the policy itself prohibits the assignment (which the policies at issue in this case did not). See § 627.422, Fla. Stat. The secondary market provides an alternative for policyholders desiring to cash out their policies because it allows them to sell to an investor at a higher amount than they would receive by surrendering the policies back to the insurance company. STOLI transactions, which are not prohibited by Florida law, are designed to take advantage of this secondary market by offering an insured (often an elderly one) “free” or “risk-free” insurance with the intent that — after the contestability period passes — the insured will receive some remuneration to transfer the policy to an investor that could not have taken out the policy in the first instance for lack of an insurable interest.

As the Eleventh Circuit explained, the insurance policies at issue in this case originated from STOLI schemes:

The two cases before us involve three STOLI policies. Wells Fargo, N.A., the present owner of a STOLI policy on the life of Arlene Berger, appeals a district court’s final judgment, entered in favor of Pruco Life Insurance Company, invalidating this policy. As to the second appeal before us, Pruco has appealed a different district court’s order dismissing its claim seeking the invalidation of two STOLI policies issued on the life of Rosalind Guild.
A. The Berger Policy
Throughout 2005 and 2006, Arlene and Richard Berger attended financial planning seminars at which they were told that they could obtain “free life insurance.” The Bergers talked with insurance salesman Stephen Brasner, who arranged for them to participate in his STOLI scheme by obtaining (1) financing for the payment of premiums from a third-party lender and (2) a fraudulent financial report listing Arlene [1204]*1204Berger’s net worth as $15.9 million and her annual income as $245,000. Brasner then applied to Pruco for a $10 million insurance policy on the life of Arlene Berger, naming her husband Richard as beneficiary. Pruco issued the policy on April 27, 2006.
Brasner subsequently established an irrevocable trust to hold the Berger policy. The trust named Wilmington Trust Company as trustee and Richard Berger as co-trustee and beneficial owner. In conjunction with the financing agreement and the creation of the trust, Arlene Berger granted the third-party lender a power of attorney and the authority to obtain her medical records.
Despite their signed authorizations, the Bergers claim not to have realized the implications of these actions. Richard Berger was shocked when he discovered that Arlene Berger had granted an irrevocable power of attorney pursuant to the financing agreement. Moreover, according to the Bergers, they neither needed nor wanted life insurance when they joined Brasner’s STOLI scheme, did not intend to pay any of the premiums, never had any intention of controlling or keeping any insurance procured through Brasner, and only accepted the policy because it was free.
At some point, ownership of the Berger policy was transferred to the trust. For their participation in this insurance policy transaction, the Bergers received a payment of nearly $173,000 from Bras-ner in May of 2008. Then, in September of 2008, Arlene Berger instructed Wilmington Trust to relinquish all her interests and rights under the policy to the1 third-party lender in satisfaction of the financing agreement. The policy was ultimately sold to a client of Wells Fargo.
On July 9, 2010, approximately four years after it had issued the Berger policy, Pruco filed suit against Wells Fargo asserting that the policy was void ab initio for lack of an insurable interest, as required by § 627.404. The district court granted summary judgment to Pruco on its claim. Adopting its previous analysis of this issue in an order denying Wells Fargo’s motion to dismiss, the court held that there was no valid insurable interest in the life of the insured by the party procuring the insurance, meaning that the policy ran afoul of Florida Statute § 627.404’s requirement of such an interest at the time an insui’ance policy is issued. See Pruco Life Ins. Co. v. Brasner, No. 10-80804-CIV, 2011 WL 134056, at *3-6 (S.D.Fla. Jan. 7, 2011) (Cohn, J.). From this conclusion, the court reasoned that the policy was void ab initio and therefore the incontestability provision of § 627.455 did not bar Pruco’s claim, asserted more than two years after issuance of the policy.
B. The Guild Policy
In September of 2005, insurance broker Gary Richardson persuaded octogenarian Rosalind Guild to participate in a $10 million STOLI scheme by offering her free life insurance and monetary compensation.

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200 So. 3d 1202, 41 Fla. L. Weekly Supp. 403, 2016 Fla. LEXIS 2073, 2016 WL 5242593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-pruco-life-insurance-company-fla-2016.