United States District Court, E.D. North Carolina, Southern Division
WILLIAM T. HANCOCK, SR., Individually and in a representative capacity on behalf of a class of persons similarly situated, Plaintiff,
AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY, INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, and AMERICO LIFE, INC., Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss plaintiff's amended complaint for failure to
state a claim (DE 36). Briefing having been completed, the
issues raised are ripe for ruling. For the following reasons,
defendants' motion is granted.
case returns to this court following dismissal of
plaintiff's original complaint, in order entered July 25,
2017, Hancock v. Americo Fin. Life & Annuity Ins.
Co., 272 F.Supp.3d 763, 779 (E.D. N.C. 2017), and
mandate of the Fourth Circuit, dismissing appeal and
remanding to this court, with instructions to allow plaintiff
to amend his complaint. 723 Fed.Appx. 241, 242 (4th Cir.
2018). In accordance with that mandate, plaintiff filed
amended complaint on July 11, 2018. Where plaintiff's
amended complaint is substantially similar to the original
complaint, and where it fails to state a claim for many of
the same reasons relied upon in order entered July 25, 2017,
the court reiterates herein many components of that order,
augmented through discussion of law and issues raised in the
instant amended complaint and briefs of the parties.
commenced this action on October 14, 2016, asserting claims
against defendants arising from the sale by defendant
Investors Life Insurance Company of North America
(“Investors Life”) of a “Flexible Premium
Adjustable Life Insurance Policy” to plaintiff in
February 1985, policy number 303 1163280 (the
“policy”), and collection of premiums thereunder
through October 2013. Plaintiff claims that defendant
Investors Life, in conjunction with the other defendants who
are allegedly affiliated entities, breached the terms of the
original complaint, plaintiff asserted claims for breach of
contract; declaration and injunction; equitable rescission;
unjust enrichment and constructive trust; fraudulent
suppression and concealment; fraud; breach of duties of good
faith and fair dealing; as well as violations of North
Carolina's Unfair and Deceptive Trade Practices Act
(UDTPA) and Racketeer Influenced and Corrupt Organizations
amended complaint, plaintiff again asserts claims for breach
of contract; declaration and injunction; equitable
rescission; unjust enrichment and constructive trust; as well
as violation of UDTPA. He has not reasserted the remaining
tort claims from the original complaint. Plaintiff continues
to seek compensatory, trebled, and punitive damages and
certification of the case as a class action on behalf of
himself and all others similarly situated, as well as
attorney's fees. As before, plaintiff attaches a copy of
the policy to the amended complaint. He also relies in this
instance upon a declaration of Tim Cody Ryles, Ph.D., an
accredited advisor in insurance.
filed the instant motion to dismiss on August 24, 2018,
asserting that all claims fail as a matter of law and should
be dismissed with prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(6). The court stayed scheduling activities
pending decision on the motion. Plaintiff responded in
opposition to the instant motion on October 5, 2018, and
defendants replied on October 19, 2018.
facts alleged in the complaint may be summarized as follows. On
February 15, 1985, defendant Investors Life issued the policy
to plaintiff, then 33 years old. (Compl. ¶ 45;
see DE 32-2 at 3). A cover letter to the policy,
titled “Flexible Premium Adjustable Life Insurance
Policy” states, inter alia “We agree to pay the
Cash Value to the Owner on the Maturity Date if the Insured
is living on that date. All payments made are subject to the
policy provisions.” (DE 32-2 at 1). The next page
includes a table of contents. (Id. at 2).
“policy specifications” page follows, stating
that the “INITIAL SPECIFIED AMOUNT” is $50,
000.00 and the “MINIMUM INITIAL PREMIUM” is
$41.27. (Id. at 3). It also includes the following
note and information:
The next four pages comprise a “Table of Expense
Charges, ” “Table of Surrender Charges, ”
“Insured Table of Guaranteed Maximum Insurance Rates
Per $1000, ” and “Other Insured Table of
Guaranteed Maximum Insurance Rates Per $1000.”
(Id. at 4-7).
next page contains “GENERAL PROVISIONS” including
at 8), and the following:
The next two pages cover “EXCLUSIONS, ”
“OWNERSHIP AND BENEFICIARY, ” and
“PREMIUMS, ” including the following provisions
at 9), and the following:
at 10). The “PREMIUMS” section of the policy also
includes provisions regarding “reinstatement.”
(Id.). Thereafter, the policy includes a section
titled “INSURANCE COVERAGE PROVISIONS” providing
information about termination of coverage and death benefit.
(Id. at 10-12).
next section of the policy titled “NONFORFEITURE
PROVISIONS” includes the following additional
provisions, pertaining to “CASH VALUE” and
policy then separately defines the “MONTHLY
DEDUCTION” to include a charge for “COST OF
INSURANCE, ” which in turn is calculated as set forth
in the following provision:
at 13). The table referenced is one of the four initial
tables at the front of the policy, which shows the cost of
insurance for each age group, between 0 and 94 years. For
example, the rate for age 33 (plaintiff's age at policy
inception) is 0.29008, whereas the rate for age 65
(plaintiff's age at filing of complaint) is 3.98456.
(Id. at 6).
RATE” is defined as set forth in the ...