Wilmington Trust National Association v. Sun Life Assurance Company of Canada ( 2023 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
WILMINGTON TRUST, §
NATIONAL ASSOCIATION, as § No. 126, 2022
Securities Intermediary, §
§
§ Court Below: Superior Court
Defendants/Counterclaim § of the State of Delaware
Plaintiff Below, §
Appellant/Cross-Appellee, § C.A. Nos: N18C-07-289
§ N17C-08-331
v. §
§
SUN LIFE ASSURANCE §
COMPANY OF CANADA, §
§
Plaintiff/Counterclaim §
Defendant Below, §
Appellee/Cross-Appellant. §
§
§
Submitted: January 11, 2023
Decided: March 20, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
Upon appeal from the Court of Chancery. AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.
Kevin G. Abrams, Esquire, John M. Seaman, Esquire, and Samuel D. Cordle,
Esquire ABRAMS & BAYLISS LLP, Wilmington, Delaware; Harry S. Davis,
Esquire (argued), and Robert E. Griffin, Esquire, SCHULTE ROTH & ZABEL
LLP, New York, New York, for Appellant Wilmington Trust, National Association.
Gregory F. Fischer, Esquire, COZEN O’CONNOR, Wilmington, Delaware; Joseph
M. Kelleher, Esquire, (argued) and Brian D. Burack, Esquire, COZEN
O’CONNOR, Philadelphia, Pennsylvania, for Appellee Sun Life Assurance
Company of Canada.
TRAYNOR, Justice:
In 2011, in an opinion now known simply as “Price Dawe,”1 this Court
described the historical background against which a type of life insurance policy
known as “stranger originated life insurance”—or “STOLI” for short—was
developed. We need not rehearse that history here. It is enough to recall Price
Dawe’s core holding: because STOLI policies are created by third parties “for the
benefit of those who have no relationship to the [person whose life is] insured”2 they
lack an insurable interest and are considered illegal wagers on human life. As such,
STOLI policies are, according to Price Dawe and the majority of courts that have
considered the question, void ab initio as against public policy.
This conclusion and, more generally, the phenomenon of void ab initio
contracts have spawned a host of thorny questions regarding the appropriate
remedial response to the identification of a policy as STOLI. These questions are
particularly difficult when the policy has been in force for several years during which
the owners of the policy have paid sizable premiums and beneficial ownership of the
policy has changed hands, in some cases several times. Indeed, over the past two
years, this Court has confronted such questions on three occasions.
1
PHL Variable Insurance Co. v. Price Dawe 2006 Insurance Trust, ex tel. Christiana Bank &
Trust Co., 28 A.3d 1059 (Del. 2011) (“Price Dawe”).
2
Id. at 1070.
2
In Lavastone Capital LLC v. Estate of Berland,3 we answered three questions
certified to us by the United States District Court for the District of Delaware, all of
which concerned the extent to which and under what circumstances an estate may
recover a STOLI policy’s death benefit. Six months later, in Wells Fargo Bank, N.A.
v. Estate of Malkin,4 we once again answered certified questions, this time from the
United States Court of Appeals for the Eleventh Circuit. The questions from the
Eleventh Circuit focused on the rights of a third-party purchaser of a STOLI policy
who was being sued under 18 Del. C. §2704(b) to raise certain defenses in an effort
to retain a previously paid death benefit or, alternatively, to seek recovery of
premiums it paid on the void policy. Our answers clarified, among other things, that
STOLI policies are void ab initio and can never be enforced.
Three months after Estate of Malkin, we decided Geronta Funding v.
Brighthouse Life Ins. Co.5 (referred to by the parties in this case as “Seck,” which
was the insured’s surname), which was not a STOLI case but instead involved a life
insurance policy that was declared void ab initio because its purported insured was
a fictitious individual. We were asked to determine whether premiums paid on
insurance policies declared void ab initio for lack of an insurable interest should be
returned to the payor of the premiums. We ultimately determined that the question
3
266 A.3d 964 (Del. 2021).
4
278 A.3d 53 (Del. 2022).
5
284 A.3d 47 (Del. 2022) (“Seck”).
3
whether premiums should be returned to a premium payor who presents a viable
legal theory, such as unjust enrichment, calls for “a fault-based analysis as framed
by [Section 198 of] the Restatement [(Second) of Contracts].”6
In this case, Wilmington Trust National Association, acting as securities
intermediary for Viva Capital Trust, was the downstream purchaser of two high-
value life insurance policies issued by Sun Life Assurance Company of Canada.
After the insureds died, Sun Life, believing that the policies were STOLI policies
that lacked an insurable interest, filed suit in the Superior Court, seeking declaratory
judgments that the policies were void ab initio. Sun Life sought to avoid paying the
death benefits and to retain the premiums that had been paid on the policies.
Wilmington Trust asserted affirmative defenses and counterclaims, alleging
that Sun Life had flagged the policies as potential STOLI years before Wilmington
Trust acquired them. Wilmington Trust sought to obtain the death benefits or, in the
alternative, a refund of all the premiums that it and former owners of the policies
had paid on the policies. Sun Life countered that allowing Wilmington Trust to
recover the death benefits would constitute enforcing an illegal STOLI policy and
that Wilmington Trust could not recover the premiums because, among other
6
Id. at 50.
4
arguments, Wilmington Trust knew that it was buying and paying premiums on
illegal STOLI policies.
In an order entered before this Court decided Estate of Malkin and Seck, the
Superior Court ruled that the policies were void ab initio and resolved the parties’
competing claims relating to the policies’ death benefits and the premiums paid over
the life of the policies.7 In short, the court denied Wilmington Trust’s bid to secure
the death benefits, but ordered Sun Life to reimburse, without prejudgment interest,
all premiums “to the party that paid them.”8
The court’s disallowance of Wilmington Trust’s death-benefit claim,
accomplished in part by an earlier dismissal of Wilmington Trust’s promissory-
estoppel counterclaim and the striking of certain of its equitable defenses, is
consistent with this Court’s STOLI precedents. But its application of an “automatic
premium return” rule—that is, ordering all premiums to be returned without
conducting the fault-based analysis we adopted in Seck—is not. Nor is the Superior
Court’s denial of prejudgment interest. Therefore, we affirm in part, reverse in part,
and remand to the Superior Court for reconsideration of its ruling on Wilmington
Trust’s premium-return claim, including its claim for prejudgment interest.
7
Sun Life Assurance Co. of Canada v. Wilmington Trust, Nat’l Ass’n, 2022 WL 179008 (Del.
Super. Ct. Jan. 12, 2022).
8
Id. at *14.
5
I
A
In April 2005, Sun Life—a self-described “leading member[] of the life
insurance industry”—distributed a memorandum to “All Agents,” expressing
concerns about the increased volume of STOLI in the life insurance market.
Describing STOLI, “investor owned,” and “lending of life” sales as “detrimental to
our policyholders and procedures, as well as Sun Life Financial and the entire life
insurance industry,”9 Sun Life informed its agents that “Sun Life will not participate
in these types of transactions.”10
In early 2006, concerned about “the potential exposure Sun Life may have to
Life Settlement and Investor or Stranger Owned Life Insurance Sales[,]” Sun Life
initiated an analysis of its policies designed to identify Sun Life policies that “exhibit
one or more ‘red flag’ characteristics matching known attributes or warning signs of
potential IOLI11 or S[T]OLI business.”12
In September 2006, amid this fraught atmosphere, Sun Life issued a $10
million policy insuring the life of Bernard De Bourbon, who was then 78 years old.
In December 2006, Sun Life issued a $9 million policy insuring the life of Samuel
9
App. to Opening Br. at A893–94.
10
Id. at A894.
11
“IOLI” in this context stands for “investor owned life insurance.”
12
App. to Opening Br. at A909.
6
H. Frankel, then 73 years old. As discussed further below, Sun Life later asserted—
and the Superior Court found13—that the De Bourbon and Frankel policies were
investor-originated STOLI policies that lacked an insurable interest. It is
undisputed, however, that Sun Life did not know when it issued the policies that they
were STOLI.
Although neither De Bourbon nor Frankel wanted or needed life insurance,
they applied for the policies upon the urging of intermediaries affiliated with a
constellation of entities known generally as Life Product Clearing Program or
“LPC.” LPC, created in 2005 by Steven Lockwood and Martin Fleisher, originated
and acquired high-face-value STOLI policies, underwritten by certain desirable
insurers, including Sun Life, on the lives of handpicked seniors. Purchasing the
STOLI policies as investments, LPC’s goal was either to collect the death benefit or
sell the policies on the secondary market for a profit. LPC employed schemes to
feign compliance with insurable-interest laws and slip STOLI applications past
insurers, including by having the policy issued to a trust and making it appear as
though the insured paid the initial premium.
The De Bourbon and Frankel policies followed this pattern. The policies were
issued to the Bernard De Bourbon Life Insurance Trust and Samuel Frankel Trust,
13
Wilmington Trust did not appeal the Superior Court’s determination that the policies were
STOLI.
7
respectively. And notably, neither De Bourbon nor Frankel paid the initial
premium.14 Although Frankel fronted the initial premium in reliance on LPC’s
promise to reimburse him and pay 3% of the face value, De Bourbon lacked the
funds to pay for his policy, and therefore his initial premium was fronted by an
attorney with whom he had no preexisting relationship.
Shortly after the policies became effective, both were sold to LPC through
sales of the trusts’ beneficial interests. At least three different LPC-affiliated
entities—LPC Holdings I LP, Villa Capital, and ESF QIF Trust—held the policies
between 2006 and 2014. In August 2014, Wilmington Trust, as securities
intermediary for Viva Capital Trust (“Viva”), acquired the De Bourbon and Frankel
policies from ESF QIF Trust as part of a portfolio of 158 life insurance policies. Sun
Life asserts that Viva was in the business of buying portfolios of STOLI policies at
a discount and bought the De Bourbon and Frankel policies with “eyes wide open”
to their insurable-interest problems.15 Sun Life collected approximately $6.9 million
in premiums on the policies from their inception;16 of that amount, Wilmington Trust
paid approximately $2.3 million in premiums on Viva’s behalf after acquiring the
policies in 2014.
14
Id. at *10; App. to Answering Br. at B1618, B1621.
15
Answering Br. at 15–21.
16
Opening Br. at 19. See Answering Br. at 46 n.22.
8
B
De Bourbon died in 2017, and Frankel died in 2018. At the time of the
insureds’ deaths, Wilmington Trust, as securities intermediary for Viva, owned the
policies. After receiving notice of De Bourbon’s and Frankel’s deaths, Sun Life
filed complaints in the Superior Court seeking declaratory judgments that the
policies were illegal STOLI policies and therefore void ab initio. Sun Life sought
to avoid paying the death benefits and to retain the premiums that had been paid on
the policies.
Wilmington Trust asserted four counterclaims: breach of contract, breach of
the implied covenant of good faith and fair dealing, unfair or deceptive trade
practices under Massachusetts law, and promissory estoppel. Wilmington Trust
sought, among other relief, damages for breach of contract or promissory estoppel
equal to the policies’ death benefits or, in the alternative, a return of all premiums
ever paid to Sun Life on the policies; and prejudgment and postjudgment interest.
Wilmington Trust also asserted various affirmative defenses, including laches,
waiver and estoppel, and unclean hands.
In support of its claims that it was entitled to recover the death benefits,
Wilmington Trust alleged that in 2008, or perhaps earlier, Sun Life flagged the De
Bourbon and Frankel policies as potential STOLI policies because of their
association with LPC. Wilmington Trust asserted that, by December 2009 at the
9
latest, Sun Life had no intention of paying the death benefits on the policies. Indeed
earlier in 2009, Wilmington Trust points out, Sun Life filed litigation challenging
the validity of other policies linked to LPC. But instead of challenging the De
Bourbon and Frankel policies at that time or otherwise speaking up about its
suspicions, Sun Life approved three separate ownership/beneficiary changes,
repeatedly represented that the policies were “in force” and “active” and continued
collecting millions of dollars in premiums on the policies.17
C
Sun Life moved to dismiss Wilmington Trust’s counterclaims and to strike its
affirmative defenses. The Superior Court dismissed the promissory-estoppel claim
and denied the motion to dismiss with respect to the other counterclaims.18 It
observed that Price Dawe “stands for the general principle that there can be no
contractual prohibition contesting enforceability when the agreement is void ab
initio” but “does not, however, require dismissal of all counterclaims based on the
contract.”19 The court determined that Wilmington Trust had sufficiently pleaded
17
See App. to Opening Br. at A1465.5–A1465.22, A1465.23–A1465.50, A2270–72.
18
Sun Life Assurance Co. of Canada v. Wilmington Trust, Nat’l Ass’n, 2018 WL 3805740 (Del.
Super. Ct. Aug. 9, 2018) [hereinafter, Motion to Dismiss Decision]. The Superior Court rendered
this decision in the case concerning the De Bourbon policy. It later adopted the same rulings in
the Frankel litigation. Order Granting in Part and Denying in Part Pl.’s Mot. to Dismiss and
Granting Pl.’s Mot. to Strike Affirmative Defenses, Sun Life Assurance Co. of Canada v.
Wilmington Trust Nat’l Ass’n, N18C-07-289 CCLD, 2019 WL 12013248 (Del. Super. Ct. Apr. 3,
2019), Dkt. 51. After the motion to dismiss ruling in the Frankel case, the cases were consolidated
for case-management purposes.
19
Motion to Dismiss Decision, supra note 18, at *3.
10
its breach of contract and good-faith-and-fair-dealing counterclaims and that there
were too many issues of fact relating to the unfair and deceptive trade practices claim
to dismiss that claim at the pleading stage. As for the promissory-estoppel claim,
the court held that if the contract were found to be valid, estoppel would not be a
valid counterclaim, because “‘[p]romissory estoppel does not apply . . . where a fully
integrated, enforceable contract governs the promise at issue.’”20 And if the contract
were found to be void ab initio, the court reasoned, Price Dawe would prohibit the
court from enforcing the contract through the promissory-estoppel counterclaim.21
The Superior Court granted the motion to strike the affirmative defense of
waiver and estoppel for the same reason that it dismissed the promissory-estoppel
counterclaim.22 It also dismissed the affirmative defenses of laches and unclean
hands, holding that it lacked jurisdiction to consider those defenses because they
were “equitable claims [that] are reserved for the Court of Chancery.”23
D
Following discovery, the parties filed cross-motions for summary judgment.
Sun Life asserted that the policies were investor-originated STOLI policies that
lacked an insurable interest because they were procured by LPC. It therefore argued
20
Id. at *3 & n.19 (quoting SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 348 (Del. 2013)).
21
Id. at *3.
22
Id.
23
Id.
11
that Wilmington Trust was not entitled to receive the death benefits under any
theory. Sun Life also argued that Wilmington Trust was not entitled, as a matter of
Delaware’s unjust-enrichment law, to a “return” of premiums that it did not itself
pay. Wilmington Trust argued that the policies were valid, non-STOLI policies, and
Sun Life was thus obligated to pay the death benefit. It argued in the alternative,
that, if the policies were not valid, it was entitled to a refund of all premiums that
had been paid over the life of the policies (including by prior owners of the policies),
based either on an automatic-refund rule or as restitution in accordance with Section
198 of the Restatement (Second) of Contracts.
The Superior Court found that both policies were procured by LPC and were
therefore STOLI policies that lacked an insurable interest.24 Consequently, the court
held that the policies were void ab initio.25 Wilmington Trust has not appealed that
aspect of the Superior Court’s ruling.26 The combined effect of the court’s
determination that the policies were void ab initio and the court’s earlier rejection of
Wilmington Trust’s promissory-estoppel counterclaim and its equitable defenses
24
Sun Life Assurance Co. of Canada v. Wilmington Trust, Nat’l Ass’n, 2022 WL 179008, at *11
(Del. Super. Ct. Jan. 12, 2022).
25
Id.26
The Superior Court also rejected Wilmington Trust’s counterclaims alleging that Sun Life had
engaged in unfair and deceptive trade practices under Massachusetts law and that Sun Life
breached the implied covenant of good faith and fair dealing. Id. at *11–12. Wilmington Trust
has not appealed those rulings either.
12
was to deny Wilmington Trust’s attempt to recover the death benefits under the
policies.
Addressing Wilmington Trust’s claim that it was entitled to recover the
premiums paid on the policies, the Superior Court wrote:
As a matter of public policy, it would not be fair for Sun Life to
retain all premiums, while never having to pay death benefits as agreed
in exchange for premiums. It also appears unfair for investors to be
reimbursed for premiums if they knew that they were inducing STOLI
policies.
....
The Court finds that Sun Life cannot be absolved from any
obligation to pay death benefits and yet retain premiums. Thus, Sun
Life must disgorge premiums. The question remains: to whom should
the premiums be given?
The Court finds that Wilmington Trust’s predecessors knew that
they were inducing insureds to procure STOLI policies through
substantial inducements. Wilmington Trust’s predecessor used
intermediaries to consummate pre-negotiated agreements and
arrangements.
There is an absence of statutory, regulatory, or legal authority
directly applicable to these facts. The Court holds that premiums must
be reimbursed to the party that paid them. The Court finds no reason
for that reimbursement to include pre-judgement [sic] interest.27
The court later entered a final order and judgment that required Sun Life to
pay specified amounts to the respective entities that had paid premiums in those
amounts during the times that they owned the policies. Specifically, the Superior
Court ordered Sun Life to pay (i) $1,171,400 and $693,979 to LPC Holdings I LP
27
Id. at *13–14.
13
for premiums that LPC Holdings paid on the De Bourbon and Frankel policies,
respectively; (ii) $317,340 and $118,672 to Villa Capital, LLC for premiums that
Villa Capital paid on the De Bourbon and Frankel policies, respectively; (iii)
$1,737,818.37 and $510,903 to ESF QIF Trust for premiums that ESF QIF Trust
paid on the De Bourbon and Frankel policies, respectively; and (iv) $1,518,922.11
and $806,433.96 to Wilmington Trust for premiums that Wilmington Trust paid on
the De Bourbon and Frankel policies, respectively.
E
On appeal, Wilmington Trust challenges the Superior Court’s dismissal of its
promissory-estoppel claims and equitable defenses and the consequent denial of
Wilmington Trust’s death-benefit claim. As it did below, Wilmington Trust also
argues that, if it is not to receive the death benefits under the policies, then it should
recover all premiums paid over the life of the policies, including the premiums paid
by prior owners of the policies, with prejudgment interest.
Sun Life responds that the Superior Court was correct in rejecting Wilmington
Trust’s claims to the death benefits under the policies, be they fashioned as claims
or defenses. And as for the disposition of premiums paid over the life of the policies,
Sun Life cross-appeals, contending that the Superior Court applied the wrong
standard to the question of premium return. Because Wilmington Trust’s purchase
14
of the policies was, according to Sun Life, “a knowing STOLI investment,”28
awarding restitution of the premiums to Wilmington Trust would frustrate
Delaware’s public policy against human-life wagering. Sun Life thus claims that it
is entitled to retain the premiums.
II
This Court reviews questions of law de novo. The Court reviews a trial court’s
decision to grant a motion to dismiss under Superior Court Rule 12(b)(6) de novo.29
Where, as here, a trial court’s decision to strike an affirmative defense decides a
question of law, this Court also applies a de novo standard of review.30
This Court reviews “a trial court decision on cross-motions for summary
judgment de novo ‘both as to the facts and the law to determine whether or not the
undisputed material facts entitle [either] movant to judgment as a matter of law.’”31
“If material issues of fact exist or if a court determines that it does not have sufficient
facts to enable it to apply the law to the facts before it, then summary judgment is
inappropriate.”32 “In evaluating the record on a motion for summary judgment, a
28
Answering Br. at 8.
29
Valley Joist BD Holdings, LLC v. EBSCO Indus., Inc., 269 A.3d 984, 988 (Del. 2021).
30
See Gen. Motors Corp. v. Wolhar, 686 A.2d 170, 172 (Del. 1996) (stating that Superior Court’s
decision to strike an affirmative defense decided a question of law and that “[t]herefore, the
applicable standard of review is de novo or plenary”).
31
Reserves Mgmt. Corp. v. R.T. Properties, LLC, 80 A.3d 952, 955 (Del. 2013) (quoting Arnold
v. Soc’y for Sav. Bancorp, Inc., 678 A.2d 533, 535 (Del. 1996)) (alteration in original) (citation
omitted).
32
Motorola, Inc. v. Amkor Tech., Inc., 849 A.2d 931, 935 (Del. 2004).
15
trial judge is not permitted to weigh the evidence or resolve conflicts presented by
the pretrial discovery.”33 “The trier of fact may weigh the evidence and resolve
disputes only after hearing all the evidence, including live witness testimony.”34
III
A
Wilmington Trust asserts that, even if a policy is void ab initio, a policy owner
can assert promissory estoppel or equitable defenses as grounds to recover the death
benefit. Thus, it argues that the Superior Court erred by dismissing its promissory-
estoppel counterclaim and by striking its equitable defenses of laches, waiver and
estoppel, and unclean hands. Accordingly, Wilmington Trust asks us to reverse this
dismissal and remand the matter to the Superior Court so that it can decide whether
Sun Life must pay $19 million in death benefits based on Wilmington Trust’s
promissory-estoppel counterclaim or its equitable defenses. Sun Life contends that
none of Wilmington Trust’s counterclaims or defenses entitles it to receive the
policies’ death benefits.
Wilmington Trust’s claim that it is entitled to recover the death benefits turns
on its claim that, several years after Sun Life issued the policies, Sun Life began to
suspect that the policies might be STOLI because of their association with LPC but
33
Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002).
34
Id.16
did not seek to invalidate the policies until the insureds died. Wilmington Trust
complains that, instead of informing Wilmington Trust and the policies’ prior
owners about its suspicions, Sun Life approved three separate ownership/beneficiary
changes, repeatedly represented that the policies were “in force” and “active,” and
continued collecting millions of dollars in premiums on the policies. It argues that
this Court should endorse the reasoning of courts in various jurisdictions, including
the District of Delaware, to the effect that courts may afford relief to the more
innocent party to a contract that is against public policy.
We agree with the Superior Court’s conclusion that Wilmington Trust is not
entitled to recover the death benefits on the policies, whether under its counterclaim
for promissory estoppel or its affirmative defenses. The Superior Court determined
that the policies were investor-procured STOLI policies, and Wilmington Trust does
not contest that ruling on appeal. As we recently stated, “the insurance company is
not obligated to pay the death benefit of a STOLI policy and may refuse to do so.”35
And our recent decisions have been crystal clear that Delaware courts will never
enforce such a policy. Harkening back to Price Dawe, we emphasized in Estate of
35
Estate of Malkin, 278 A.3d at 60. Indeed, an order requiring an insurer to pay the death benefit
to an investor-holder of a STOLI policy might well give rise to a claim by the insureds’ estate to
recover the death benefit. See 18 Del. C. § 2704(b) (“If the beneficiary, assignee or other payee
under any contract made in violation of [the insurable interest requirement] receives from the
insurer any benefits thereunder accruing upon the death . . . of the individual insured, the individual
insured or his or her executor or administrator, as the case may be, may maintain an action to
recover such benefits from the person so receiving them.”).
17
Malkin that “STOLI policies are void ab initio, never come into legal existence, are
a ‘fraud on the court,’ and can never be enforced.”36 And shortly after that, we
confirmed in Seck that the enforcement of an illegal contract is antithetical to the
public policy of this State.37 In fact, “when an agreement is void ab initio as against
public policy, the courts typically will not enforce a remedy to any extent against
either party.”38
But a court order requiring Sun Life to pay the policies’ death benefits to
Wilmington Trust would, in effect, enforce the illegal STOLI policies in violation
of Article II, Section 17 of the Delaware Constitution and the State’s strong public
policy against human-life wagering.39 Such a remedy would fly in the face of our
repeated avowals that enforcement of a STOLI policy is not an option. Thus, the
Superior Court did not err by dismissing Wilmington Trust’s promissory-estoppel
counterclaim and striking its equitable defenses to the extent that they sought
recovery of the policies’ death benefits.40
36
Estate of Malkin, 278 A.3d at 56 (quoting Price Dawe, 28 A.3d. at 1069 n.25, 1073) (emphasis
added).
37
Seck, 284 A.3d at 61.
38
Id.
39
See Estate of Malkin, 278 A.3d at 65 (When an investor receives the proceeds of a STOLI policy,
it “commit[s] . . . a violation of Article II, Section 17 of the Delaware Constitution and of the
State’s public policy” against human-life wagering.).
40
See Columbus Life Ins. Co. v. Wilmington Trust Co., 2021 WL 3886370, at *7 (D. Del. Aug. 31,
2021) (“[U]nder the reasoning of Price Dawe, Wilmington Trust’s challenged affirmative
defenses, which seek to enforce the Policy should it be deemed void ab initio, are impermissible
as they seek relief that the Delaware Supreme Court says courts cannot give.”).
18
This conclusion is consistent with several federal court decisions applying
Delaware law and holding that an investor may not assert equitable defenses or a
promissory-estoppel counterclaim to recover the death benefit on a STOLI policy.41
As the Delaware District Court has put it, if the promise that Wilmington Trust seeks
to enforce is Sun Life’s “promise in the life insurance contract that it [would] pay a
[$19] million death benefit upon [the insureds’] death, the Court cannot enforce that
promise” because “a promise in a contract that is void ab initio ‘may never’ be
enforced by the Court.”42 And if the promise that Wilmington Trust is seeking to
enforce is a “subsequent ‘promise to comply with its promise to pay the . . . death
benefit[s] when [the insureds] die[d]’ so long as [Wilmington Trust] continued
making premium payments,” then that promise “would itself constitute an
unenforceable, illegal wager on the life of [the insureds],” which the courts may
never enforce.43
41
See, e.g., id. (dismissing promissory-estoppel counterclaim and striking affirmative defenses);
Wilmington Savs. Fund Soc’y, FSB v. PHL Variable Ins. Co., 2014 WL 1389974, at *12 (D. Del.
Apr. 9, 2014) (A STOLI policy “may not be enforced equitably through estoppel[.]”); U.S. Bank
Nat’l Ass’n v. Sun Life Assurance Co. of Canada, 2017 WL 347449, *2 (E.D.N.Y. Jan. 24, 2017)
(dismissing affirmative defenses as a matter of law).
42
Columbus Life Ins. Co. v. Wells Fargo Bank, 2021 WL 106919, at *9 (D. Del. Jan. 12, 2021)
(“Snyder”) (R. & R.) (quoting Price Dawe, 28 A.3d at 1067).
43
Id.19
Wilmington Trust urges this Court to instead adopt the reasoning applied in
two District of Delaware decisions, one known as Griggs44 and the other as Sol II.45
Neither of those decisions persuades us to allow Wilmington Trust to recover the
policies’ death benefits under its promissory-estoppel and equitable theories.
In Griggs, an insurer filed a declaratory judgment action seeking to declare a
$10 million life insurance policy void ab initio as STOLI.46 The policy owner
asserted various counterclaims, including promissory estoppel and a claim for a
declaratory judgment that the insurer was estopped from challenging the policy or
had waived its right to challenge the policy. The court denied the insurer’s motion
to dismiss the counterclaims. It held that the policy owner had adequately alleged
that the insurer had acted in bad faith, “including by collecting hefty premiums while
harboring an undisclosed plan to challenge the policies and never pay claims on
them[.]”47 The court similarly held that the policy owner had adequately pleaded a
counterclaim for promissory estoppel.48 The Griggs court was careful, however, to
qualify these holdings; it explicitly noted that it was not determining whether the
policies were illegal and whether enforcement of them would be against public
44
PHL Variable Ins. Co. v. ESF QIF Trust ex rel Deutsche Bank Trust Co., 2013 WL 6869803(D. Del. Dec. 30, 2013) (“Griggs”).
45
Sun Life Assurance Co. of Canada v. U.S. Bank Nat’l Ass’n, 2019 WL 2151695 (D. Del. May
17, 2019) (“Sol II”).
46
Id. at *1.
47
Id. at *6.
48
Id. at *8.
20
policy. Seen in this light, the court’s refusal to dismiss the policy owner’s bad-faith
and promissory-estoppel claims is drained of its relevance here.
By contrast, in Sol II, the court had previously declared that a life insurance
policy was STOLI and void ab initio.49 The insurer, Sun Life, then moved for
summary judgment on the counterclaims brought by the downstream policy owner,
U.S. Bank, including a promissory-estoppel claim. The court denied the motion,
reasoning that it was “not enforcing a void [p]olicy, but [was], instead, estopping an
allegedly bad faith actor who made promises in connection with the [p]olicy from
escaping the just consequences of such promises.”50 But although the Sol court
allowed the promissory-estoppel claim to proceed to trial, it ultimately rejected U.S.
Bank’s claim for expectation damages in the amount of the death benefit. 51 In a
post-trial decision following “a six-day jury trial that resulted in a verdict in favor of
U.S. Bank . . . on its promissory estoppel counterclaim,” the court held that U.S.
Bank would be awarded restitution damages equal to the total amount of premiums
49
See Sol II, 2019 WL 2151695, at *2 n.2 (noting that the court held in an earlier summary
judgment opinion that the policy “was void ab initio as an illegal wagering contract”) (citing Sun
Life Assurance Co. Canada v. U.S. Bank Nat’l Ass’n, 369 F. Supp 3d 601, 617 (D. Del. 2019)).
50
Sol II, 2019 WL 2151695, at *8 n.8.
51
The court reasoned that Delaware courts award expectation damages in the promissory-estoppel
context only in exceptional circumstances, noting that the “more routine role of promissory
estoppel [is] to assure that those who are reasonably induced to take injurious action in reliance
upon non-contractual promises receive[] recompense for that harm.” Sun Life Assurance Co. of
Canada v. U.S. Bank Nat’l Ass’n, 2019 WL 8353393, at *1, 3 (D. Del. Dec. 30, 2019) (quoting
Ramone v. Lang, 2006 WL 905347, at *14–15 (Del. Ch. Apr. 3, 2006)).
21
paid to Sun Life on the policy at issue.52 After determining that “both sides are to
blame for the situation in which they find themselves” and that U.S. Bank had not
shown bad faith by Sun Life or other “unusual circumstances,” the court limited U.S.
Bank’s damages to restitution of premiums.53
Thus, in neither of the cases from the District of Delaware upon which
Wilmington Trust principally relies did the court permit the owner to recover a
STOLI policy’s death benefit. And we are not inclined to do so here. As previously
noted, to award the death benefit to Wilmington Trust would be to, in effect, enforce
the STOLI policies, causing the illegal human-life wagers to pay off. The Superior
Court correctly averted that result by dismissing Wilmington Trust’s promissory-
estoppel counterclaim and striking its equitable affirmative defenses, the ultimate
objective of which was the recovery of the death benefits under the policies. In light
of this holding, we turn next to Wilmington Trust’s claim that Sun Life should be
ordered to repay all premiums paid under the policy, including those paid by its
predecessors in interest, to Wilmington Trust.
IV
We noted earlier that in Seck, decided several months after the Superior Court
decided this case, we held that a trial court should be guided by the Restatement’s
52
Id.53
Id. at *3–4. The court also awarded prejudgment interest.
22
fault-based analysis when determining whether, and to what extent, premiums
should be returned when an insurance policy is found to be void ab initio. In this
case, without the benefit of that opinion, the Superior Court applied an automatic
premium-return rule, which we rejected in Seck, and ordered Sun Life to return
premiums to each entity that paid them. Because of the conflict between the Superior
Court’s analysis and our decision in Seck, we reverse the court’s judgment that Sun
Life must reimburse all premiums “to the party that paid them.”54 But this, of course,
does not mean that Sun Life is automatically entitled to retain the premiums. The
question remains: To what extent, if any, is Wilmington Trust entitled to the return
of premiums it and others before it paid? To that question we now turn.
A
In the initial round of briefing, Wilmington Trust argued that an insurer must
automatically disgorge all premiums that it received on a policy since inception if
the policy is declared void, but that the Superior Court erred by ordering Sun Life to
return the premiums to the owners that paid them, rather than requiring that Sun Life
return all the premiums to Wilmington Trust. In its supplemental briefing following
this Court’s decision in Seck, Wilmington Trust submits that the Court should
remand to the Superior Court to apply the “fact-intensive,” “comparative fault-based
analysis” adopted by Seck. Wilmington Trust argues that Sun Life should not be
54
2022 WL 179008, at *14.
23
permitted to retain any of the premiums paid on the De Bourbon and Frankel policies
because Sun Life suspected that the policies were STOLI five years before
Wilmington Trust acquired the policies (and had inquiry notice of the nature of the
policies ten years before Wilmington Trust acquired the policies). But instead of
attempting to rescind the policies, Wilmington Trust argues, Sun Life continued to
collect premiums; represented that the policies were “active,” “in force,” and “in
good standing;” and approved three ownership/beneficiary changes, including the
one corresponding to Wilmington Trust’s acquisition of the policies.
Sun Life acknowledges that “[t]his Court’s decision in [Seck] governs the
premium refund question here” but argues that Wilmington Trust’s attempt to obtain
a premium refund should end here because Wilmington Trust did “not plead unjust
enrichment nor did its promissory estoppel claim seek a premium refund.”55 We
disagree; Wilmington Trust should be permitted to pursue restitution of the
premiums on remand.
As an initial matter, Wilmington Trust’s answers and counterclaims made
clear that it was seeking, as an alternative to the death benefits, return of all
premiums paid to Sun Life over the life of the policies. It also made clear, with
detailed supporting factual allegations, its position that Sun Life should not be
permitted to keep the premiums because it formed an intent to challenge the policies
55
Sun Life Opening Suppl. Br. at 1–2.
24
as STOLI but engaged in conduct designed to induce the policy holders to continue
paying millions of dollars in premiums. Moreover, Wilmington Trust argued in its
summary-judgment briefing that it was entitled to a restitutionary return of
premiums under the Restatement because Sun Life was more in the wrong than
Wilmington Trust/Viva.56
Because the parties actually litigated the restitution issue, and because this
Court clarified the applicable test for a restitutionary return of premiums after the
Superior Court had issued its decision in this matter, Wilmington Trust should be
permitted to proceed with its claim for recovery of the premiums.
B
As mentioned above, in Seck we held that claims such as Wilmington Trust’s
premium-return claim should be subjected to a fault-based analysis as framed under
the Restatement (Second) of Contracts. Writing for the Court, Justice Montgomery-
Reeves explained how the analysis should proceed:
[W]hen analyzing a viable legal theory that seeks as a remedy
the return of premiums paid on insurance policies declared void ab
initio for lack of an insurable interest, Delaware courts shall analyze the
exceptions outlined in Section 197, 198, and 199 of the Restatement
and determine whether any of those exceptions permit the return of the
premiums. A court would need to determine whether: (1) there would
be a disproportionate forfeiture if the premiums are not returned; (2) the
claimant is excusably ignorant; (3) the parties are not equally at fault;
(4) the party seeking restitution did not engage in serious misconduct
and withdrew before the invalid nature of the policy becomes effective;
56
E.g., A525–26, A604–07, A650–60.
25
or (5) the party seeking restitution did not engage in serious
misconduct, and restitution would put an end to the situation that is
contrary to the public interest.
A court analyzing the exceptions outlined in Section 198 should
consider the following questions: whether the party knew the policy
was void at purchase or later learned the policy was void; whether the
party had knowledge of facts tending to suggest that the policy is void;
whether the party procured the illegal policy; whether the party failed
to notice red flags; and whether the investor’s expertise in the industry
should have caused him to know or suspect that there was a substantial
risk that the policy it purchased was void.
Thus, the fault of the parties and public policy considerations will
determine which party is entitled to the premiums paid on an insurance
policy that is void ab initio for lack of an insurable interest.57
The inquiries mandated by this analysis are manifestly fact-intensive. But
because the Superior Court applied an automatic-refund rule, it did not make any
factual findings—or, more precisely in light of the summary-judgment posture, it
did not evaluate whether there were any disputed issues of material fact—regarding
whether and when the parties had actual knowledge or inquiry notice of the policies’
illegality, whether the parties were equally at fault, or any of the other considerations
that this Court identified in Seck as relevant to the fault-based analysis.
Determining whether Sun Life should retain the premiums or Wilmington
Trust should recover some or all of them under Seck will require a fact-intensive
analysis and require the weighing of evidence. The Superior Court should conduct
57
Id. at 72–73.
26
that analysis in the first instance.58 Indeed, in Seck, the Court remanded for the
Superior Court to “review its [post-trial] factual findings through the lens of our
newly articulated fault-based test.”59 Here, the Superior Court made no factual
findings relating to the fault-based test.
C
That leaves the question whether Wilmington Trust can recover premiums
paid by the former owners of the policies between 2006 and 2014 (or, put conversely,
whether Sun Life can retain premiums paid by the entities that held the policies
before Wilmington Trust acquired them on Viva’s behalf in 2014). Wilmington
Trust does not dispute that at least two of the three former owners of the policies—
LPC Holdings I LP and Villa Capital—were affiliated with LPC.60 We note that the
Superior Court concluded that LPC procured the policies under a STOLI scheme
that it created. Whether Wilmington Trust can prove that all or some of the former
owners were less at fault than Sun Life is for the Superior Court to determine.
58
See Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002) (“In evaluating the record on a
motion for summary judgment, a trial judge is not permitted to weigh the evidence or resolve
conflicts presented by the pretrial discovery.”); see also id. (“The trier of fact may weigh the
evidence and resolve disputes only after hearing all the evidence, including live witness
testimony.”).
59
Seck, 284 A.3d at 74–75.
60
See Opening Br. at 8 (stating that LPC acquired the policies shortly after their inception); id. at
17 (describing Villa Capital as an “LPC-affiliate”). Sun Life asserts that ESF QIF Trust was also
an LPC-affiliated entity, e.g., Sun Life Answering Br. at 3, and Wilmington Trust does not appear
to dispute that fact. Indeed, Wilmington Trust points to Sun Life’s knowledge of ESF QIF Trust’s
association with the individuals who carried out the LPC STOLI scheme in support of its assertions
of Sun Life’s fault. E.g., Wilmington Trust Opening Br. at 21.
27
Finally, Wilmington Trust suggests in its supplemental briefing that Sun Life
is arguing, based on Sun Life Assurance Company of Canada v. Wells Fargo Bank,
N.A. (“Corwell”),61 that Wilmington Trust does not have standing to litigate a return
of premiums paid on behalf of its principal, Viva. In Corwell, which was decided
under Illinois law, the Seventh Circuit Court of Appeals expressed doubt about
whether the securities intermediary could claim a refund on behalf of the principal.62
But we do not read that to be Sun Life’s argument. Rather, Sun Life points to
Corwell in support of its arguments that (1) Wilmington Trust cannot recover
premiums paid by former owners of the policies, especially where those former
owners were the STOLI perpetrators, and (2) Wilmington Trust cannot recover
premiums because Viva was a highly sophisticated buyer that was fully aware of all
the material facts and the significant insurable-interest risk in the policies that it
purchased but took a calculated risk to try to profit from the policies by buying them
at a discount and trying to cash in at the insureds’ death.63 In any event, we are not
inclined to address Corwell’s significance, if any, in this appeal. Corwell, like Seck,
was decided after the Superior Court decided this case. Whether Corwell and its
61
44 F.4th 1024 (7th Cir. 2022).
62
See id. at 1040 (“First, Wells Fargo has not offered evidence or argument to establish its right
to collect this refund if it were otherwise appropriate. Vida itself is not a party to this case and has
not asserted a right to such a refund.”).
63
Id.28
reasoning present persuasive reasons for denying Wilmington Trust premium-return
claim is for the Superior Court to decide in the first instance on remand.
D
Wilmington Trust also contends that the Superior Court erred by denying
Wilmington Trust an award of prejudgment interest. It argues that Sun Life should
be required to pay prejudgment interest from the date of each premium payment.
Sun Life argues, as an initial matter, that no prejudgment interest is due because the
Superior Court erred by ordering it to refund the premiums. But it also contends
that, even if this Court affirms the Superior Court’s decision regarding premiums, it
should also affirm the court’s decision not to award prejudgment interest. According
to Sun Life, prejudgment interest does not begin to accrue until a payment is “due”—
in the case of a refund, when the claimant makes a demand for the refund—and no
refund was due here until, at the earliest, the Superior Court determined that the
policies were void ab initio.
In Seck, we recognized the role prejudgment interest plays in incentivizing the
parties to potentially illegal agreements to behave in good faith.64 Moreover, “[i]n
64
See Seck, 284 A.3d at 72 (“A fault-based analysis also incentivizes insurers to speak up when
the circumstances suggest that a policy is void for lack of an insurable interest because they will
not be able to retain premiums if they stay silent after being put on inquiry notice, and they might
also be responsible for interest payments. In other words, our test incentivizes each player along
the chain of these insurance policies to behave in good faith.”). Of course, the prospect of
prejudgment interest can also affect the policy holders’ calculations. See Sun Life Answering
Suppl. Br. at 18 (discussing “a pair of STOLI cases pending in the District of Delaware, [in which]
Viva has conceded that the at-issues policies are STOLI and—instead of seeking the $10 million
29
Delaware, prejudgment interest is awarded as a matter of right.”65 Thus, an award
of prejudgment interest is warranted if Wilmington Trust prevails on its refund
claim. The question is when it should begin to accrue.
“As a general rule, interest accumulates from the date payment was due to a
party.”66 When the obligation to make a payment arises from a contract, the court
will look to the contract itself to determine when interest should begin to accrue.67
“For insurance claims, interest accumulates from the date a party actually demands
payment. Where it is difficult to determine to a reasonable degree of certainty when
an insured demanded payment, we often rely on the date that the insured filed the
complaint.”68 In Moskowitz v. Mayor & Council of Wilmington, where a property
owner made a claim for a refund of a tax payment that the property owner asserted
was improperly assessed, this Court held that interest should be awarded “from the
date the taxpayer gave notice to the governmental entity that the taxpayer considered
death benefit—is arguing that it is entitled to a ‘premium refund’ of over $16 million, which it
calculates by applying prejudgment interest to its alleged entitlement to all of the premiums the
insurer ever received (including the millions Viva did not pay”)).
65
Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del. 1992) (citing Moskowitz v. Mayor &
Council of Wilm., 391 A.2d 209 (Del. 1978)).
66
Stonewall Ins. Co v. E.I. du Pont de Nemours & Co., 996 A.2d 1254, 1262 (Del. 2010) (citing
Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 507–08 (Del. 2001). See also Citadel Holding, 603
A.2d at 826 (“Such interest is to be computed from the date payment is due.”) (citing Moskowitz,
391 A.2d at 210)).
67
Citadel Holding, 603 A.2d at 826 (citing Watkins v. Beatrice Companies, Inc., 560 A.2d 1016,
1020 (Del. 1989)). In Citadel Holding, the Court held that a plaintiff who was entitled to
reimbursement of legal expenses under an indemnification agreement was entitled to prejudgment
interest computed from the date that the plaintiff demanded reimbursement and produced his
written promise to repay as required under the agreement. Id. at 826 & n.10.
68
Stonewall, 996 A.2d at 1262 (citation omitted).
30
the tax payment unlawful or improper.”69 “The rationale underlying this rule is that
money is not due and payable, and thus not in default, until there has been a demand
therefor.”70 “Thus, a taxpayer may recover interest from the date the tax payment
was made if the payment was accompanied by adequate notice that the payment is
considered to be excessive, improper, or unlawful; but if such notice did not
accompany the tax payment then interest will not begin to accumulate until there has
been a later act constituting notice to the taxing authority that, in the opinion of the
taxpayer, the tax is excessive, improper, or illegal.”71
Applying these principles to the circumstances of this case, Wilmington Trust
is not entitled to prejudgment interest predating its purchase of the policies in 2014.
Weighing the incentivizing effects of prejudgment interest on insurers and STOLI
policy holders, Sun Life should not be responsible for—and Wilmington Trust
should not receive—interest on premiums paid by LPC affiliates. If the Superior
Court ultimately determines that Wilmington Trust is entitled to restitution of any of
the premiums that it paid, the court should award prejudgment interest from the date
that Wilmington Trust asserted that a premium refund was due—which likely
corresponds to the date that Wilmington Trust filed its answer and counterclaims.72
69
Moskowitz, 391 A.2d at 211.
70
Id.71
Id.72
Cf. Stonewall, 996 A.2d at 1262 (“We disagree with the chosen accrual date. Prejudgment
interest is an extraordinary award that applies when a party unjustifiably refuses to live up to its
obligation after payment is due. Although DuPont’s initial 1999 complaint may in the abstract be
31
V
The Superior Court properly dismissed Wilmington Trust’s promissory-
estoppel counterclaim and struck its equitable defenses thereby defeating
Wilmington Trust’s claim for the recovery of death benefits under the two STOLI
policies. The court’s application of an “automatic premium refund” rule clashes
with this Court’s subsequent rejection of that rule in favor of the Restatement’s fault-
based analysis. The court also erred by ruling that, to the extent that any premium
payments are recoverable, prejudgment interest was not available. For these and the
other reasons stated above, the judgment of the Superior Court is AFFIRMED in
part and REVERSED in part. The case is REMANDED to the Superior Court for
further proceedings in accordance with this opinion.
construed as a demand for payment, DuPont amended that complaint to make demand against the
1983 insurers. After settling with the 1983 insurers, DuPont then changed its strategy and made
claims against the 1985 insurers, including Stonewall, in an August 4, 2006 demand letter.
Therefore, Stonewall could not have unjustifiably refused to pay until DuPont demanded payment
on August 4, 2006. Accordingly, the motion judge erred by awarding prejudgment interest from
December 30, 1999.”) (citation omitted).
32