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Doherty v. Allianz Life Insurance Company of North America

United States District Court, M.D. Florida, Fort Myers Division

August 20, 2019

MARIAN E. DOHERTY, as Guardian of Frances R. Gorman and Executor of the Estate of Patrick J. Gorman, Plaintiff,
v.
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, a foreign corporation authorized to do business in the State of Florida, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UHITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the defendant's Motion for Final Summary Judgment (Doc. #31) filed on April 19, 2019. Plaintiff filed a Response (Doc. #38) on May 17, 2019. For the reasons set forth below, the motion is denied.

         I.

         Summary judgment is appropriate only when the Court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court must decide ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Anderson, 477 U.S. at 251).

         In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, “if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.” St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983) (finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”)). “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

         II.

         On May 17, 2018, Marian E. Doherty, as Guardian of Frances Gorman and Executor of the Estate of Patrick Gorman, filed an Amended Complaint against defendant Allianz Life Insurance Company of North America (Defendant) in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida.[1] (Doc. #2.) On May 30, 2018, Defendant removed the Amended Complaint to this Court on the basis of diversity jurisdiction. (Doc. #1.) The Amended Complaint asserts claims against Defendant for negligence (Count I) and breach of fiduciary duty (Count II).

         The undisputed facts are as follows: In May of 2003, Patrick Gorman purchased a BonusDex annuity (the Patrick Annuity) from Defendant for a premium of approximately $202, 403.00.[2] (Doc. #32-4, p. 3.) Frances Gorman also purchased a BonusDex annuity (the Frances Annuity) from Defendant in May of 2003 for a premium of approximately $101, 775.00.[3] (Doc. #32-3, p. 3.) The Gormans lived part-time in Naples, Florida at this time in 2003. (Doc. #32-1, p. 5.) In or about 2013, the Gormans began living full-time in Illinois with their daughter, Caroline Silha. (Id. p. 31.)

         On May 21, 2015, Defendant received two phone calls from Frances Gorman, or a person purporting to be Frances Gorman.[4] In those phone calls, the caller asked, “if I want to take the cash value out [of the Frances annuity], what do I need to do?” (Doc. #42-5, p. 3.) The caller also stated, “I need to get a total of $210, 000, between [the Frances Annuity and the Patrick Annuity], ” and asked, “do I have to cash out fully, or how does that work?” (Doc. #42-5, p. 8.) The caller asked that any relevant annuity surrender forms be emailed to Caroline Silha's email address. (Id. p. 7.) Also on May 21, 2015, Defendant received a faxed Withdrawal Request Form for Annuity Contract, which requested a full surrender of the Patrick Annuity and the Frances Annuity. (Doc. #32-11.) It requested that the funds be wired into the Gormans' shared Regions bank account and that federal income tax be withheld at the rate of 10%. (Id.) On May 22, 2015, Defendant received another call from Frances Gorman, or someone purporting to be Frances Gorman.[5] (Doc. #42-5, p. 12.) In the phone call, the caller inquired about the status of the surrender requests for the Patrick Annuity and the Frances Annuity. (Id. pp. 12-16.)

         On May 26, 2015, Defendant mailed a letter to Frances Gorman, indicating that it received and was reviewing her annuity surrender request. (Doc. #32-13.) The letter stated: “Your contract's current Accumulation/Annuitization Value is $141, 602.00 and its Surrender Value is $86, 706.01. By surrendering your contract now, you are giving up the difference between these two values.” (Id. p. 2.) Defendant completed the surrender of the Frances Annuity on June 1, 2015 and wired $78, 052.63 - the post-tax surrender value - into the Gormans' Regions bank account in Collier County, Florida. (Doc. #32-14, p. 2; Doc. #32-1, pp. 16-17.)

         On May 28, 2015, Defendant mailed Patrick Gorman a letter, stating that it could not process his annuity surrender request because “[t]he signature on [his] request form [did] not match [his] original owner's signature on the application.” (Doc. #32-15, p. 2.) The letter further requested that Patrick Gorman provide a notarized signature. (Id.) On May 29, 2015, Frances Gorman, or someone purporting to be Frances Gorman, called Defendant to inquire about the status of the Patrick Annuity surrender.[6] (Doc. #40-3.) The caller informed Defendant's representative that Patrick Gorman's signature did not match “because he has health issues and his hand doesn't operate like it did when it was 20 years ago.” (Id. p. 7.) The caller further informed Defendant's representative that she was “in the process of getting [] power of attorney paperwork submitted” because Patrick Gorman was in the hospital and unable to travel to have his signature notarized. (Id. pp. 7-8.)

         On June 2, 2015, Defendant received an email from Caroline Silha, which stated that it attached “the final paperwork [] Frances Gorman thinks is needed to finish processing the funds [Patrick and Frances Gorman] want to access.” (Doc. #32-16, p. 2.) Attached to the email was a Power of Attorney for Property, which stated in relevant part:

I, Patrick J. Gorman of 574 Laguna Royal Blvd., Naples, Fl. 34119, hereby appoint my Wife, Frances Gorman, if for any reason Frances is unable to make the decisions, I hereby appoint my daughters, Barbara Gorman of 2800 N. Talman Ave. Unit Q. Chicago, IL 60618 and Caroline Silha of 6180 Indian Trail Rd., Gurnee, IL 60031 as my attorney-in-fact (my "agent") to act for me and in my name (in any way I could act in person) . . . .

(Id. p. 5.) The Power of Attorney for Property was signed by Frances Gorman and notarized by Sabine Landshof, a Notary Public of the State of Illinois. (Id. p. 8.) Defendant mailed a letter to Patrick Gorman on June 4, 2015, stating that it received “a request to register the Power of Attorney on [his account], ” but was unable to process the request because the Power of Attorney for Property was not signed by Patrick Gorman. (Doc. #32-17, p. 2.)

         On June 5, 2015, Defendant received a call from a Regions Bank branch manager; the branch manager was with Frances Gorman and Frances Gorman's daughter, Barbara Gorman. (Doc. #40-5, p. 2.) The branch manager noted to Defendant's representative that Frances Gorman was anticipating a wire transfer from the Patrick Annuity, but that it had not yet been received by Regions Bank. (Id.) Defendant's representative spoke with Barbara Gorman about the status of the Patrick Annuity surrender and informed her that the Power of Attorney for Property was invalid and, as a result, the surrender had not been initiated. (Id. p. 9.) Defendant's representative also noted to Barbara Gorman that, “[y]our mom doesn't seem like she's really, you know, fully understands everything, what's [sic] going on. You may wanna write a letter saying that you can also speak on your dad's behalf.” (Id. p. 15.)

         On June 10, 2015, one of Defendant's representatives attempted to call Patrick Gorman. (Doc. #32-19.) Caroline Silha answered the phone and stated Patrick Gorman was unavailable because he “[was] in the hospital.” (Id. p. 2.) Defendant's representative explained to Caroline Silha that the Power of Attorney for Property was invalid because Patrick Gorman did not sign it and “he has to actually sign it in order for it to be valid.” (Id. p. 3.) Caroline Silha then told Defendant's representative that he did not sign the Power of Attorney for Property because “he can't even hold [a] fork any longer” and “his fingers are all . . . curled up underneath.” (Id.)

         Defendant's representative informed Caroline Silha that, because of Patrick Gorman's condition, Defendant required “guardianship paper[s] from [a] court” in order to process the Patrick Annuity surrender. (Id. at 5.) Caroline Silha responded by asking Defendant's representative, “if I take a piece of paper [to the hospital] and [Patrick Gorman] scribbles whatever he scribbles in front of a notary . . . and he scribbles, whatever it is, I mean, I'm asking, if it's illegible, if I, I mean I'm gonna print . . . his name underneath it for you . . . can you release the funds?” (Id. p. 6.) Defendant's representative stated, “[i]f it's notarized, official stamp, notary seen as Illinois, then, yes. Then we can, we can process [the surrender].” (Id.) Defendant's representative further stated to Caroline Silha, “just get a signature page or a letter of instruction typed up or best thing would be at least the signature page for the withdrawal form. Just have him do that” and the Patrick Annuity would be surrendered within one day. (Id.)

         Later on June 10, 2015, Caroline Silha faxed Defendant a signed signature page of the Withdrawal Request Form for the Patrick Annuity. (Doc. #32-20.) The Withdrawal Request Form signature page indicated it was page “3 of 3”; pages 1 and 2 were not included. (Id. p. 3.) The Withdrawal Request Form contained an “Official Seal” notary stamp and signature of Nina Marie Ingoglia, Notary Public of the State of Illinois. (Id.)

         On June 11, 2015, Defendant mailed a letter to Patrick Gorman, informing him that Defendant had processed his request and “sent a wire transfer in the amount of $162, 587.42” to his Regions bank account in Collier County, Florida. (Doc. #32-21, p. 2; Doc. #32-1, p. 17.) By fully surrendering the Patrick Annuity, Defendant retained the difference between the Patrick Annuity's Accumulation/Annuitization Value of approximately $289, 723.16 and the Surrender Value of approximately $180, 365.81. (Doc. #42-5, p. 33.)

         On or about December 17, 2018, Caroline Silha and Barbara Gorman were charged with financial exploitation of an elderly person under Illinois state law. (Doc. #32-27; Doc. #32-28.) Caroline Silha and Barbara ...


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