Insurer faces counterclaim in STOLI case


In 2009, the Penn Mutual Life Insurance Company sued a trust and its trustee in a Delaware federal court, alleging the life insurance policy issued to them was part of an impermissible “stranger oriented life insurance” or “STOLI” scheme. Penn Mutual sought to rescind the policy because of “material misrepresentations” it relied upon when it placed the coverage.

The trust filed a counterclaim against Penn Mutual, essentially arguing that any misrepresentations in the policy application were made by Penn Mutual’s agents and should therefore be imputed to Penn Mutual itself. Penn Mutual asked the Delaware court to dismiss the counterclaim. But the court refused.  On July 30, 2010 it held the trust’s allegations “implicate legal and factual issues related to agency” and allowed the counterclaim to proceed further. The case is styled civil action number 09-677, Penn Mutual Life Insurance Company v. Barbara Glasser 2007 Insurance Trust, in the United States District Court for the District of Delaware.


U.S. appeals court labels STOLI transactions "insurance fraud"

       Liberte Capital Group advertised itself as a “viatical investment company.” Its stated business was to buy existing life insurance policies from terminally-ill or elderly persons with a lump-sum payment and then receive the policy benefits when they died. But in reality, Liberte was a fraud. Its chief executive was convicted of two counts of conspiracy and 155 counts of money laundering for buying life insurance policies from others who, with his assistance and through false statements, acquired the policies after receiving diagnoses of terminal illnesses. The owner of Liberte’s escrow agent was also convicted of multiple counts of fraud and tax violations relating to the transactions and sued for embezzling the company’s assets. 

       On May 28, 2009, the United States Court of Appeals for the Sixth Circuit made the most recent examination of Liberte’s affairs after Liberte’s receiver sued for rescission of three policies and return of the premiums. The Court’s opinion contains the unexpected and remarkable statement that:


The viators’ purchases of the insurance policies with the intent to re-sell them to Liberte immediately constituted insurance fraud, because the viators never intended to insure their own lives.


       It would not have been remarkable for the Sixth Circuit to label the policies fraudulently-procured. The false statements in policy applications were legion and well-litigated. The Court’s statement was remarkable because it focused on the insured person’s intent to immediately sell the policy to an investor. 


       STOLI is an acronym for “stranger-owned life insurance” or “speculator-owned life insurance.” It is a shorthand reference for transactions in which someone buys insurance on his own life only to sell it to a third party, often an unrelated investor, once the policy’s contestability period expires. For those who participate in STOLI transactions, the Court’s opinion is noteworthy. Perhaps inadvertently, perhaps not, the Sixth Circuit’s opinion classifies the basic STOLI transaction as “insurance fraud.” 

STOLI transaction litigation increasing

     Litigation involving “stranger-owned life insurance” or “STOLI” is on the rise as insurance companies take aggressive legal action to rescind policies that they perceive to be involved in STOLI transactions.  These cases may be the beginning of a cottage industry of litigation concerning alleged STOLI arrangements.

     In January, a New Jersey federal court ruled that Lincoln National Life Insurance Company could seek rescission of a $3 million policy allegedly used for a STOLI transaction. In February, Hartford Life and Annuity Company announced that it was nearing a settlement of a case in a Texas federal court involving its rescission of a $5,900,000 policy. And on March 31, 2009, a Florida federal court ruled that Axa Equitable Life’s claim to rescind five policies—valued at approximately $73,000,000—would be decided partially in arbitration.

     The cases have two characteristics in common. First, the insurers base their claim for policy rescission on alleged misrepresentations in the policy application—usually that the insured person falsely stated that he or she did not intend to sell the policy in a secondary market transaction. Second, the policies involved carry a multi-million dollar death benefit. Based on the vast market for STOLI policy transactions, future cases involving these characteristics appear imminent. 

Federal court rules that STOLI policy may be void for lack of insurable interest


STOLI is an acronym for “stranger-owned life insurance” or “speculator-owned life insurance.” It is a shorthand reference for transactions in which someone buys insurance on his own life for the purpose of selling it to a third party, often an unrelated investor, once the policy’s contestability period has expired. A recent ruling by a federal court in New Jersey, however, may undermine the security of such investments.

In a STOLI transaction, the insured person typically gets cash for the policy and the investor receives the right to the policy benefits when the insured person dies. Life insurers loathe the transactions because investors are unlikely to let STOLI policies lapse, meaning that insurers will have to pay death benefits on a greater percentage of insurance contracts than they have become accustomed. 

On January 27, 2009, the United States District Court for New Jersey became one of the first courts to weigh-in on what may become a recurring topic of litigation—an insurer’s effort to rescind one of its life insurance policies because of the possibility that it would be sold in a secondary market in a STOLI transaction. 

In Lincoln National Life Insurance Company v. Calhoun, Lincoln National sued to rescind a $3 million policy on the life of Walter Calhoun. First, the insurer argued that the policy is void because Calhoun intended—at the time he applied for the policy—to sell it to “stranger investors” in the secondary life insurance market, thereby removing the necessary insurable interest.  Second, Lincoln National argued that Calhoun made a material misrepresentation in his application by falsely stating that he had not discussed the possible sale or assignment of the policy in a secondary market.  

The court held that Lincoln National properly stated a case, noting that a material misrepresentation on the policy application may be reason to void the policy. But more importantly, the court added that Lincoln National’s allegation of no insurable interest could also serve to void the policy. The court held, “Insureds begin to run afoul of the insurable interest requirement, however, when they intend at the time of the policy's issuance, to profit by transferring the policy to a stranger with no insurable interest at the expiration of the contestability period.” 

The impact of the court’s insurable interest holding could be enormous. The market for STOLI policies is now estimated to be in the tens of billions of dollars. The court’s ruling that a policy may be void if the insured person intended, at the time of purchase, to transfer the policy to one without an insurable interest may undermine the security of those STOLI investments.     

Examples of Insurance Abuse: Father Poisons Son With Halloween Candy


     Near this time every year, I am reminded of this story.  And it demonstrates why insurance regulators and policy makers who are currently analyzing regulations on life settlements and “stranger owned life insurance” should consider the impact of human nature on those insurance transactions.  Insurance products are frequently abused by profiteers and life insurance policies pose a significant risk in the hands of the unscrupulous. There is no better example of this abuse than Ronald Clark O’Bryan.

     Ronald Clark O’Bryan had serious personal financial problems. He earned $150 per week, was eight months behind on his car payments and had total debts up to $100,000. In January of 1974, over his wife’s objection, he took out $10,000 life insurance policies on both of his two children. Later that year, over the objection of his life insurance agent, he bought additional $20,000 life insurance policies on his son and daughter.  By mid-October, both of his children were covered by several life insurance policies but O’Bryan had virtually no coverage on himself. It was also at this time that O’Bryan told a creditor that he expected to receive a large sum of money before the end of the year and extended his debt obligations into 1975.

     In August of 1974, O’Bryan, who worked as an optometrist, asked his manager for cyanide to clean gold glass frames—an unusual request considering that cyanide had not been used in the industry for over twenty years.  He also talked about the commercial uses of cyanide with his co-workers, as well as what dosages of the chemical would be deadly. After his request for the cyanide was denied, O’Bryan asked a friend (and employee of Arco Chemical Company) where he could buy cyanide and, “out of curiosity,” what doses would be fatal to humans. He finally asked how one could detect the presence of chemicals in a dead body. 

     Two weeks before Halloween, O’Bryan bought costumes for his children and appeared excited about taking them “trick or treating” even though he had never been excited about it before. A week later, he invited a friend’s family to dinner on Halloween night and suggested that the children from both families “trick or treat” together. 

     On Halloween, the families met for dinner as planned and then went “trick or treating.”  The group approached a house, only to find no one home. The children ran to the next home, but O’Bryan remained behind in the darkness for about thirty seconds.  He quickly caught up with the group holding “giant pixy styx” and exclaimed that the "rich neighbors" were handing out expensive candy. 

     When they returned home, O’Bryan’s son Timothy asked for one of the pixy styx. He took two gulps of the powder, complained that it tasted bad and began vomiting. He went into convulsions and was taken to the hospital where he died within an hour. Fluids taken from his stomach contained 16 milligrams of cyanide.  The level of cyanide in his blood was .4 milligrams.  A fatal human dose of cyanide is a blood level between .2 and .3 milligrams.

     On November 1st, O’Bryan met with the funeral director and learned that a separate death certificate was required to make a claim under each policy on Timothy’s life. He ordered six death certificates. He also described how he intended to use the insurance policy benefits and said the didn't see how the police could “pin” the death on anyone.

     O’Bryan was mistaken. The police did, in fact, pin Timothy’s death on him. O’Bryan was tried, convicted, and sentenced to death. He was executed by lethal injection on March 31, 1984.

     The story of Ronald Clark O’Bryan is horrific. It is almost impossible to comprehend how a person could murder his or her own child for life insurance proceeds. But examples of life insurance abuse, often equally horrific, are legion. And such examples speak volumes about how basic human nature, when presented with profiteering opportunities through life insurance, can produce unimaginable results. 


Life Settlements, STOLI Pose Potential Insurable Interest Problems

     Virtually every jurisdiction in the United States recognizes a person’s right to insure his or her own life and name another as the policy beneficiary, either through an assignment or express designation. The designated beneficiary or assignee is thereafter deemed to have an insurable interest in the insured person’s life by virtue of that designation or assignment. 

     In the context of life or viatical settlements, the requirement of an insurable interest is typically satisfied when the insured person assigns the policy to the purchaser. The insured person in a “stranger owned life insurance” or “STOLI” transaction may likewise satisfy the insurable interest requirement through designation or assignment. Thus, it is arguable that the beneficiary in both life settlement and STOLI transactions have an insurable interest in the insured person’s life because of the assignment—an act taken by the insured person himself.

     One matter absent from the current debate over life settlement and STOLI transactions, however, involves the maintenance of an insurable interest after a secondary transfer of the policy. Most contracts may be transferred time and time again. But life insurance policies are not like most contracts because the requirement of an insurable interest is a fundamental. It is therefore likely that the second (or third, or fourth) assignee of the life insurance contract will not have an insurable interest in the insured person’s life—the insured person did not assign the policy to the subsequent owner or name it as the policy beneficiary. And in many jurisdictions, the absence of an insurable interest renders the policy void as a wagering contract that violates public policy.


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Examples of Insurance Abuse: An Employer Profits From Employee Deaths

     The appropriate use, or misuse, of certain life insurance products remains a hot topic of conversation. Earlier this year, Florida passed legislation about who may benefit from life insurance policies. The State of Washington recently banned “dead peasant” insurance. And more than twenty-five states are now analyzing regulations concerning life settlements and “stranger owned” life insurance.

     Policy makers addressing these issues should, first and foremost, consider the impact of human nature on transactions in which one may profit from the death of another. Human nature is a dangerous thing, writes George Will. There are few statements so consistently true. 

     Insurance products have been abused by speculators since the beginning of insurance itself. Life insurance is no different. And that vehicle, fueled by human nature, will always present a profit opportunity for the unscrupulous.

     One fascinating example of such unscrupulous speculation is a policy purchased by National Convenience Stores, Inc., the former operator of the Stop-N-Go chain of convenience stores. During the summer of 1991, NCS bought insurance on the lives of all its Texas employees. It also designated itself as the policy beneficiary and was entitled to $250,000 every time an employee died on the job. 

     At the time it bought the policy, NCS’ business was failing. It filed for bankruptcy protection just a few months later. In December of 1991, the company, according to one executive, “had no money in the bank.” 

     But while its core business was failing, NCS experienced a remarkable number of employee deaths. Six employees died during the policy term, mostly from robbery-related murders. NCS was paid $1.5 million in policy benefits. And because the policy premium was approximately $620,000, the bankrupt company profited by almost $900,000 because of employee deaths. The insurance broker who placed the policy and had to process the claims, suggested prayer a way to control the mounting losses.

     Notably, NCS decided not to invest in many safety devices because it stated that it could not afford them. It decided against bullet-proof glass and drop safes for stores in high-crime areas. It also decided against having multiple employees on duty during late-night hours when crime was highest. Once it emerged from bankruptcy, and after the policy term expired, NCS was acquired by a competitor that installed new safety devices. On-the-job deaths then decreased dramatically.

     The NCS example is worthy of consideration. Defenders of practices such as broad-based, leveraged, corporate owned life insurance often argue that the coverage poses no moral hazard because the corporate beneficiary would never murder its insured employees. But as the NCS policy demonstrates, murder is not the relevant inquiry. The relevant inquiry, the moral hazard, is whether one wagers on the early death of another. NCS made a substantial profit, not from murder, but by depriving its employees of a safe work environment. 


Larry King Settles Life Insurance Suit

     Last October, television personality Larry King filed suit against insurance brokers Alan Meltzer and the Meltzer Group, Inc.  The suit concerned policies that are sometimes called “Stranger Owned Life Insurance,” "STOLI," or “Speculator Owned Life Insurance.”  (see the complaint).  The essence of a “STOLI” transaction is that the insured person buys the policy on his life while intending to immediately sell the policy to a third party.

    King alleged that, on the advice of the brokers, he bought a $10 million policy on himself and promptly sold it for $550,000. He also sold an existing $5 million policy for $850,000 in cash. King’s suit alleged that the brokers were liable to him because he did not receive enough money for the policies, the brokers did not adequately advise him about his continuing life insurance needs, he had unexpected tax consequences from the transactions, and the brokers improperly benefitted themselves at his expense.

     King’s suit also alleged that the brokers sold the policies on his life to an entity named Coventry First, LLC, a member of The Coventry Group. As I have previously written, The Coventry Group is the brokerage firm that drafted memos concerning Winn-Dixie’s policies of “Corporate Owned Life Insurance” that spawned the name “dead peasant” insurance for COLI products.  (see the entry). 

     King agreed to a settlement during July 2008.  The presiding court entered an order dismissing the case on August 4, 2008 because of the settlement.  The parties did not disclose the settlement terms.