Last week I noted that there have been a relatively large number of recent opinions in insurance class actions, and provided updates on a number of significant recent P&C decisions.  Now I’ll focus on significant recent life insurance cases.  The first involves the Social Security Death Master File, a hotbed of recent regulatory and class action activity.  The second case involves the sale of annuities to senior citizens, another hot area. 

Range v. Cincinnati Life Ins. Co., Case No. 1:11-CV-1367, 2012 U.S. Dist. LEXIS 41520 (N.D. Ohio Mar. 27, 2012):  The plaintiff alleged that Cincinnati Life fails to take adequate steps to determine which of its policyholders have died, such as by checking the Social Security Death Master File, so that benefits are timely paid to beneficiaries.  This type of issue has been the subject of a number of class action filings against life insurers and regulatory activity by insurance departments – see my June 2, 2011 and July 13, 2011 blog posts for more on this.  The Ohio federal court granted the insurer’s motion to dismiss for lack of Article III standing.  The named plaintiff conceded that her husband and children were familiar with her policy’s existence and its location, and she was confident they would make a claim when she dies.  Thus, “by Range’s own admission, Cincinnati Life’s failure to check the DMF [Death Master File] – even if it is a violation of Ohio law – will not cause her or her beneficiary or his heirs any injury.  For this reason, Range’s dispute with Cincinnati Life is nothing more than an intellectual exercise – a theoretical dispute about the Ohio-law rights and duties of insurers and insureds in circumstances not likely to occur in this case.  Article III precludes the Court from providing a forum for that discussion.”  Id. at *9-10.  The court remanded the case to state court, suggesting, however, that standing might be proper in state court.  States have concepts of standing that often differ somewhat from Article III of the federal constitution.  An interesting point here worth keeping in mind is that a removal to federal court, followed by a motion to dismiss for lack of standing, may not be the best strategy where it will simply result in another battle over standing in state court under different state law standards. 

Rowe v. Bankers Life & Casualty Company, Case No. 09-cv-491, 2012 U.S. Dist. LEXIS 43198 (N.D. Ill. Mar. 29, 2012):  The allegations here are that Bankers Life hires inexperienced sales agents, fails to properly train them, and allows them to sell annuities to senior citizens that are unsuitable for them.  The named plaintiff and her late husband purchased an equity-indexed deferred annuity in 2007, when they were both over 65.  The maturity date was in 2025, when her husband would have been 99-years-old.  The plaintiff sought certification of a nationwide class.  Prior to ruling on certification, the court excluded expert testimony proffered by the plaintiff attempting to establish that equity-indexed deferred annuities are always unsuitable for persons over 65, on the grounds that the testimony was inadequately supported.  (I wonder here how you could ever have an absolute age cutoff for something like that, why would it be acceptable for a 64-year-old but not a 65-year old?)  The court found certification improper under Rule 23(b)(2) because no “single order granting declaratory or injunctive relief would end this case,” and the case would require individualized monetary relief that would not be incidental.  The court also found certification improper under Rule 23(b)(3).  This part of the decision focused on the evidence to support the plaintiff’s RICO claim, which was premised on an allegedly misleading disclosure form and sales literature provided to purchasers of annuities.  The court found that the evidence failed to show that all class members received the disclosure form or the sales literature.  Individualized issues predominated in light of the discretion given to agents in making their sales presentations.  The court also noted that there are logical reasons for some senior citizens to buy this type of annuity, including keeping money safe to be passed on to heirs.  The court, however, allowed the plaintiff an opportunity to file a renewed motion to certify only a California subclass.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.

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