CopyCited 311 times | Published | Court of Appeals for the Eleventh Circuit | 2007 U.S. App. LEXIS 5274, 2007 WL 677729
...These clauses grant the insurers a two-year window of
1
The FVSA provides a cause of action against any person who knowingly enters into a
viatical settlement for a policy that was obtained through material misrepresentations or
omissions. Fla. Stat. § 626.99275(1)(a)....
...10
enterprise; and 5) the policies that the receivership entities acquired in this manner
were void ab initio.5
More specifically, insurers VFL, Reassure, Jefferson Pilot and AUL
asserted that MBC violated the FVSA, Fla. Stat. § 626.99275(1)(a), when it
entered into viatical settlement agreements with policyholders Mullins, Johnson,
Metoyer and Buchner (counts I, VI, X, and XVI).6 Section 626.99275(1)(a) of the
FVSA makes it unlawful for any person to “enter into, broker, or otherwise deal in
a viatical settlement contract” for a life insurance policy, knowing that the policy
was procured through fraud....
...ermine
their life expectancies.
In two instances (the policies pertaining to Mullins and Johnson), the
insurers had already paid out death benefits on the viators. As a result, the insurers
asserted that they were entitled to damages under section 626.9927(3) of the
FVSA, which provides that any person damaged by a violation of the Act may
seek damages, court costs, and attorney’s fees....
...The court’s decision turned
on a plain reading of the statute, which made it unlawful to “knowingly enter into,
broker or otherwise deal in” a viatical settlement contract for a life insurance
policy that was procured through fraud. Fla. Stat. § 626.99275(1)(a).
The insurers argued that the court should construe the term “otherwise deal
in” to include transactions that occurred after the receivership entities purchased a
given policy....
...Hooshmand,
931 F.2d
725,737 (11th Cir. 1991).
ANALYSIS
I. The FVSA Does Not Govern Transactions with Out-of-State Viators
The FVSA regulates insurance and investments in insurance products within
the State of Florida. Section
626.99275(1)(a) of the Act states that it is unlawful
for any person:
To knowingly enter into, broker, or otherwise deal in a viatical
settlement contract the subject of which is a life insurance policy,
knowing that the p...
...aterial to the policy or by
concealing, for the purpose of misleading another, information
concerning any fact material to the policy, where the viator or the
viator’s agent intended to defraud the policy’s insurer.
Fla. Stat. § 626.99275(1)(a) (2004)....
...29
Thus, a plain reading of this provision of the statute indicates that the FVSA
does not govern MBC’s settlement contracts with any of these viators.
Accordingly, we find that the insurers’ reliance upon section 626.99275(1)(a) of
the statute is misplaced, and they are not entitled to relief under this statute....
...The district court did not provide a
specific reason for dismissing this claim as it did with the other FVSA claims.
12
The district court ordered the insurers’ FVSA claims dismissed because it found that
they were time-barred. The court based this conclusion on the language in Fla. Stat. §
626.99275(1)(a), which makes it unlawful for any person to knowingly “enter into, broker or
otherwise deal in” a viatical for a life insurance policy that was procured through fraud....
...Co.,
178 F.3d 1209, 1217 (11th
Cir. 1999) (applying Florida law).
Insurers VFL, Reassure, Jefferson Pilot and AUL allege that the
receivership entities conspired to acquire fraudulently procured policies “in
violation of the FVSA, Fla. Stat. §
626.99275(1)(a).” As we have already noted,
however, the FVSA does not govern the receivership entities’ actions with respect
to the policies named in these claims because they concern out-of-state viators....
