In a case that grew out of the misconduct of an attorney who forged the signatures of judges on dozens of documents, a Florida appellate court has granted a significant victory to insurers who seek to avoid increased exposure from the practices of secondary market companies.
Underscoring the importance of the protections established by the Florida Structured Settlement Protection Act (the “Florida SSPA”), the Florida Court of Appeals in Talcott Resolution Life Ins. Co. v. Novation LLC, et al., (Fla. 2d DCA Dec. 12, 2018), awarded a win to the insurer parties that sought to prevent structured settlement factoring companies from creating a bypass around the Florida SSPA’s requirements.
Reardon Scanlon LLP’s Pete Vodola argued and won the appeal on behalf of annuity issuer Talcott Resolution Life Insurance Company (formerly Hartford Life Insurance Company) and its affiliated structured settlement obligor.
Talcott had appealed a decision ordering it to redirect structured settlement payment rights to an assignee, notwithstanding that there was a question about whether there had been a forged signature on a document passed off as an order that, if valid, would have granted rights to the payments to the assignee.
The question arose because a Florida attorney who represented Novation Capital, LLC, and other factoring companies had been found, over the course of two years, to have forged the signatures of judges in more than one-hundred documents that had been passed off as “orders” in other cases.
Those forgeries had been investigated by Florida state officials, whose investigation covered the time period from May, 2012, to September, 2014. But, after the forgery investigation came to light in 2016, Talcott received information about an April 2012 document that also appeared to be a forgery.
With the document’s validity in question, Talcott filed for a declaratory judgment to request a determination of the proper payee – a determination that turned on whether the signature was a forgery. However, notwithstanding that there was no evidence before the trial court that the alleged “order” was valid, the transferee (Novation) and its assignee (Eisbock Funding, LLC), contended that they were entitled to enforce the “transfer” simply because the payee had failed to appear in the declaratory judgment proceeding. The trial court agreed, but in its December 12 opinion, Florida’s Fourth District Court of Appeals reversed and remanded the matter, agreeing with Talcott that the Florida SSPA’s provisions could not be waived – meaning that even if the payee did not show up, he could not be stripped of his valuable right to receive structured settlement payments unless the transferee complied with the statutory requirements and obtained a court order. The appeals court held that the trial court erred by failing to determine whether the document was a valid order or a forgery:
"The validity of the [document] was a material issue of fact which could not be determined on the motion for judgment on the pleadings. If it were not a valid order, the transfer would not have been authorized under the SSPA, which provisions could not be waived. The court erred in determining that Eisbock was entitled to payments without first determining the validity of [document]. We thus reverse and remand for further proceedings on the declaratory judgment action."
Talcott had argued that the case posed significant public policy questions. For instance, if Novation was correct that a legal theory of reliance allowed a factoring company to obtain a legally-enforceable right to a structured settlement payment without first complying with the SSPA’s requirement for advance court approval of a transfer, factoring companies would have an incentive to adopt practices leading to self-created reliance, producing a possible bypass around compliance with the statutory requirements, and undermining the effectiveness of the Florida SSPA. Moreover, the protections afforded payees and other parties to structured settlement agreements – parties that include structured settlement obligors, like Talcott – could be adversely affected by such practices. Given that the Florida SSPA is based on the same model legislation that has led to adoption of structured settlement protection acts in another 48 states, such public policy implications could have a far-reaching impact. In awarding a victory to the insurer parties in the Brannen matter, the Florida Court of Appeals rejected the possibility of such an end-run around the statute, and reinforced the statute’s protections.
In more than twenty years of representing structured settlement obligors and annuity issuers, Reardon Scanlon, LLP’s Pete Vodola and Managing Partner Kathy Scanlon have obtained victories in cases involving structured settlement protection acts in more than three-dozen states, including at the appellate level in California, Texas, and other states.
You may access a copy of the decision in the link, below.
A “recycled annuity” can pose risks to those involved in such deals, Reardon Scanlon Partner Pete Vodola told the National Structured Settlement Trade Associations’ 2017 Educational Conference in Texas last week.
In fact, an investment in a “recycled annuity” is not an investment in an annuity, since the rights being bought and sold are rights to receive payments under a structured settlement agreement, not rights of ownership in an annuity, Vodola said October 19 at the NSSTA’s meeting at the Westin Riverwalk in San Antonio.
Thus, if a “recycled annuity” is used to fund settlement proceeds in a personal injury action, the personal injury victim would not be able to claim the payments as exempt from claims of creditors – as would be the case in a number of states under a true structured settlement, the conference attendees learned.
And while the payment rights are funded by an annuity, the investor in such deals has no protections under other types of statutes that would be available, under a “true structured settlement” – a phrase used by a judge in one case described by Vodola.Vodola, who was one of several industry leaders who spoke at the conference, pointed out how, for those investing in individual transactions, there is an important risk if the underlying order approving the transfer of settlement payment rights is undone – the “default risk”, as described by some factoring companies in the business of purchasing settlement payment rights. Vodola described an ongoing litigation matter, now on appeal to the Third Circuit Court of Appeals, illustrating such a risk, where a husband and wife had invested a sum in a transaction involving a transfer of structured settlement payment rights. The transfer papers had been forged, and the court order approving the transfer was vacated when the court learned of the forgery. The investors then sued the factoring company and a financial advising company – and while they prevailed against the financial advising company, the matter remains on appeal.
Vodola, who co-chairs the NSSTA Legal Committee, writes frequently about structured settlements, other insurance topics, and the impact of secondary markets on the insurance industry. For more items authored by Vodola, see the Secondary Insurance Market Blog here. For more about Reardon Scanlon LLP, see the firm’s website here.
Reardon Scanlon LLP Partner Pete Vodola has been tapped as a chairperson of the National Structured Settlement Trade Association’s Legal Committee.
It’s the second time Vodola has been a leader of the trade group’s committee. Vodola co-chaired the NSSTA Legal Committee from 2009 to 2012. He was a 2012 recipient of NSSTA’s Leadership Award, for his contributions to the structured settlement business. NSSTA recently held its 2017 Educational Conference in San Antonio, where Vodola was one of the conference’s speakers.
Jim Reardon, one of Reardon Scanlon’s founding partners, is again a Super Lawyer.Thomson Reuters, publishers of Super Lawyers magazine, designates based on a research-driven, peer-influenced point-scored selection process.
With more than twenty years of experience, Reardon has experience that ranges from highly-complex multijurisdictional litigation – in the U.S., Europe, and the Middle East – to representing local and regional businesses in franchise, environmental, contract, regulatory, and governmental investigation matters. His successful representation has led to him being named a Super Lawyer multiple times, as well as landing him on the CBS news magazine 60 Minutes, for his work on a “faked death” life insurance case that, unsurprisingly, resulted in a favorable outcome for the client when Jim located purported decedent alive and well.
Reardon is currently representing property and casualty insurers in “crumbling foundation” litigation, and his successes have included positive results for his clients in regulatory and litigation matters involving environmental cost recovery, product liability, reinsurance, insurance coverage, shareholder disputes, trade secrets, and FINRA arbitrations.
The Super Lawyers selection process involves nomination by colleagues, research by Super Lawyers staff, and peer evaluation by top attorneys in each of more than 70 practice areas. Only 5 percent of lawyers in a given state are selected as Super Lawyers.
Reardon Scanlon LLP is proud to announce that as of October 28, 2017, it has been certified as a Women’s Business Enterprise (WBE) through the Women’s Business Enterprise National Council (WBENC), the nation’s largest third party certifier of businesses owned and operated by women in the US.
We recognize the commitment to supplier diversity that is embraced by corporations and government agencies today, and we can add diversity to your supply chain.
Reardon Scanlon LLP offers national litigation and appellate experience and flexible fee structures. We invest time up front to solve problems, avoid protracted litigation when possible, and strive to achieve the best results for our clients.
Reardon Scanlon LLP this year marked the five-year anniversary of its founding, coinciding with changes that the firm says will continue it stays ahead of changing legal landscape to meet client needs and challenges.
Among those changes for this 21st century law firm: Reardon Scanlon is now joins the ranks of women-owned enterprises. Managing Partner Kathy Scanlon announced the changes this week, as Reardon Scanlon restructured its ownership arrangements.“We are a 21st Century firm, and that means we continue to change with constantly changing times,” said Scanlon, who has been managing partner for several years. “In fact, that’s a hallmark for firms like ours, that are client-focused first, and continuously looking for ways to leverage technology and new business models to better serve our clients.”The firms three co-founders – Scanlon, Jim Reardon, and Pete Vodola – also announced the changes inwith the firm’s web site, other technologies, and logo.
“The web site is easier to read, and easier to navigate,” said partner Jim Reardon – who, like Kathy Scanlon and their third co-founder, Pete Vodola – spends time in both the firm’s Connecticut and New York offices.
Reardon Scanlon LLP serves clients in insurance, financial services, and other businesses. Reardon Scanlon’s attorneys have wide-ranging experience in representing clients in financial services, insurance, telecommunications, computer hardware and software, and other industries. With experience in many fields of law, the firms partners represent clients – large and small – in litigation, regulatory, business, and other matters. For more, contact Managing Partner Kathy Scanlon at Katherine.firstname.lastname@example.org.
An insurer properly terminated three life insurance policies for non-payment of premiums under policies that called for premiums to be payable “at” the company’s home office - but where the insured did not take reasonable steps to make sure payments arrived there - a federal court in New York ruled in an opinion that granted a summary judgment victory to Reardon Scanlon’s client.
Reardon Scanlon’s lawyers had argued that the “mail box rule” did not apply where the insured was aware that the payments had not been received by the insurer, and federal court agreed in its September 18 ruling in Zamora-Leon v. United of Omaha Life Insurance Company, Case 1:15-cv-09206-JMF (S.D.N.Y. Sept. 18, 2017). District Court Judge Jesse M. Furman concluded that plaintiff Jesus Zamora-Leon had his office assistant send the payments in question to United of Omaha Life Insurance Company (“United”), but that United did not receive them and told the assistant – but neither Zamora nor the assistant took “the necessary steps to cure the problem.”
Zamora, said Judge Furman, argued that the policy terminations were invalid because the premiums were "'paid’ upon mailing.” United, said the judge, relied on the language of the policies to contend that the premiums were not 'paid’ because they were not received” by United and, in the alternative, that Zamora cannot presume that receipt occurred “from the mere fact of mailing” because United “informed Zamora, through his assistant, that the Company had no record of receiving the payments.” The Court, said Judge Furman, “agrees with United on both fronts.”
Looking to the mail-box rule, “under any law that could apply, it is well established that ‘the legal effect of mailing an insurance premium is controlled by the intent of the parties” and that intent typically is “embodied in the written agreement between the parties – the insurance plan.” By making the premiums payable “at” United’s Home Office, such “language makes sufficiently plain that receipt, rather than mailing, controls.” In fact, said Judge Furman, “any other interpretation would render the words ‘at our Home Office’ in the policies superfluous.”
For more information, please contact Reardon Scanlon Managing Partner Kathy Scanlon at Katherine.Scanlon@reardonscanlon.com.