Doherty v. Allianz Life Insurance Company of North America
Filing
51
OPINION and ORDER denying defendant's 31 Motion for Final Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 8/20/2019. (CMG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIAN
E.
DOHERTY,
as
Guardian
of
Frances
R.
Gorman and Executor of the
Estate of Patrick J. Gorman,
Plaintiff,
v.
Case No:
2:18-cv-377-FtM-29NPM
ALLIANZ
LIFE
INSURANCE
COMPANY OF NORTH AMERICA, a
foreign
corporation
authorized to do business in
the State of Florida,
Defendant.
OPINION AND ORDER
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
2
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
4, p. 3.)
(Doc. #32-
Frances Gorman also purchased a BonusDex annuity (the
Frances Annuity) from Defendant in May of 2003 for a premium of
The Court will refer
collectively as “the Gormans.”
1
to
Patrick
and
Frances
Gorman
The precise value of the premium paid for the Patrick Annuity
is unclear to the Court. The parties assert the initial premium
was $201,591.00; however, the Policy Schedule for the Patrick
Annuity reflects that the initial premium was for $202,403.00.
(Doc. #32-4, p. 3.)
2
3
approximately $101,775.00.3
(Doc. #32-3, p. 3.)
The Gormans lived
part-time in Naples, Florida at this time in 2003.
p. 5.)
(Doc. #32-1,
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?”
#42-5, p. 3.)
(Doc.
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
The precise value of the premium paid for the Frances Annuity
is also unclear to the Court. The parties allege that the initial
premium was $103,147.80; however, the Policy Schedule for the
Frances Annuity reflects that the initial premium was $101,775.00.
(Doc. #32-3, p. 3.)
3
Plaintiff asserts that Frances Gorman did not make these
phone calls. Plaintiff alleges that Frances Gorman’s daughter,
Barbara Gorman, made these phone calls and posed as Frances Gorman.
It is unclear to the Court whether Defendant disputes this alleged
fact.
4
4
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.”
p. 2.)
(Id.
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
Florida.
bank account
in Collier County,
(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.”
15, p. 2.)
(Doc. #32-
The letter further requested that Patrick Gorman
Plaintiff also asserts that this phone call was made by
Barbara Gorman posing as Frances Gorman.
5
5
provide a notarized signature.
Gorman,
or
someone
(Id.)
purporting
to
On May 29, 2015, Frances
be
Frances
Gorman,
called
Defendant to inquire about the status of the Patrick Annuity
surrender.6
representative
(Doc.
that
#40-3.)
Patrick
The
caller
Gorman’s
informed
signature
did
Defendant’s
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.”
2.)
(Doc. #32-16, p.
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) . . . .
Plaintiff again asserts this phone call was made by Barbara
Gorman posing as Frances Gorman.
6
6
(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.
2.)
(Doc. #40-5, p.
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,
everything, what’s [sic] going on.
you
know,
fully
understands
You may wanna write a letter
saying that you can also speak on your dad’s behalf.”
15.)
7
(Id. p.
On
June
10,
2015,
one
of
representatives
(Doc. #32-19.)
attempted to call Patrick Gorman.
Defendant’s
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.”
Defendant’s
because
of
representative
Patrick
informed
Gorman’s
(Id.)
Caroline
condition,
Silha
Defendant
that,
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
8
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
Ingoglia, Notary Public of the State of Illinois.
of Nina Marie
(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.
1, p. 17.)
retained
(Doc. #32-21, p. 2; Doc. #32-
By fully surrendering the Patrick Annuity, Defendant
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.
9
(Doc. #32-27; Doc. #32-28.)
Caroline Silha and Barbara Gorman pled not guilty to the charges.
(Doc. #32-29; Doc. #32-30.)
III.
Defendant now moves for summary judgment on Counts I and II.
Defendant argues it is entitled to summary judgment because (1)
Plaintiff has “not asserted any tortious act independent of the
parties’
contractual
relationship”
(Doc.
#31,
p.
22);
(2)
Defendant owed Plaintiff no legal duty under Florida negligence
principles; (3) no fiduciary duty exists between an insurer and an
insured; (4) Plaintiff “failed to put forth admissible evidence to
demonstrate an injury” (Id. p. 25); and (5) as a matter of law,
Defendant could not be the proximate cause of the Gormans’ alleged
damages.
A.
The Economic Loss Rule
Defendant argues it is entitled to summary judgment on Counts
I and II because, pursuant to Florida’s economic loss rule, a tort
claim must be independent of a breach of contract claim.
The Court
disagrees.
Historically under Florida law7, the economic loss rule barred
a plaintiff’s claim “where the parties are in contractual privity
This action is governed by Florida law. See Tech. Coating
Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th
Cir. 1998)(“[A] federal court sitting in diversity jurisdiction
applies the substantive law of the forum state.”).
7
10
and [the plaintiff] seeks to recover damages in tort for matters
arising out of the contract.”
Curd v. Mosaic Fertilizer, LLC, 39
So. 3d 1216, 1223 (Fla. 2010).
The economic loss rule had “its
roots in the products liability arena, and was primarily intended
to limit actions in the products liability context.”
Tiara Condo.
Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399,
401 (Fla. 2013).
Florida courts eventually extended the economic
loss rule beyond the products liability context.
Id. at 402.
In Tiara, the Florida Supreme Court recognized that the
economic
beyond
loss
its
rule
roots
had
in
undergone
the
products
an
“unprincipled
liability
arena
extension”
and
thus
“return[ed] the economic loss rule to its origin in products
liability.”
Id. at 406-07.
In so holding, the court “recede[d]
from [its] prior rulings” expanding the economic loss rule beyond
products liability cases and expressly “limit[ed] the application
of the economic loss rule to cases involving products liability.”
Id. at 407.
The court reasoned that the “expansion of the rule
beyond its origins was unwise and unworkable in practice.”
Id.
In a concurring opinion, Justice Pariente noted that, despite
the majority limiting the economic loss rule to products liability
cases, “in order to bring a valid tort claim, a party still must
demonstrate that . . . the tort is independent of any breach of
contract claim.”
Id. at 408.
In contrast, Justices Canady and
Polston noted in dissenting opinions that, as a result of Tiara,
11
“there are [now] tort claims and remedies available to contracting
parties in addition to the contractual remedies which, because of
the
economic
available.”
loss
rule,
Id. at 410.
were
previously
the
only
remedies
The Eleventh Circuit has noted that
whether the concurring or dissenting approach controls is “still
unclear . . . .”
Lamm v. State St. Bank & Tr., 749 F.3d 938, 947
(11th Cir. 2014).
Following Tiara, some district courts have adhered to Justice
Pariente’s interpretation and found that a tort claim must be
independent of any claim for breach of contract. See Kaye v.
Ingenio, Filiale De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL
2215770, at *4 (S.D. Fla. May 29, 2014)(finding that a party “must
[still] allege action beyond and independent of breach of contract
that
amounts
to
an
independent
tort”
(citations
omitted));
F.D.I.C. v. Wolkowitz Appraisal Consultants, Inc., No. 12-CV60916, 2014 WL 12862210, at *1 (S.D. Fla. Jan. 16, 2014)(same).
Other district courts have found the dissent’s approach more
persuasive.
See F.D.I.C. v. Floridian Title Grp. Inc., 972 F.
Supp. 2d 1289, 1298 (S.D. Fla. 2013)(finding that the economic
loss
rule
did
not
bar
the
plaintiff’s
claims
for
breach
of
fiduciary duty and negligent misrepresentation because the “case
[was] not a products liability case” and “[t]hus[] the economic
loss rule
[did]
not apply”); Carl's Furniture, Inc. v. APJL
Consulting, LLC, No. 15-60023-CIV, 2015 WL 1467726, at *4 (S.D.
12
Fla. Mar. 30, 2015)(noting that “the Florida Supreme Court has not
adopted Justice Pariente's concurrence as controlling law”).
This
Court
has
previously
found
that,
after
Tiara,
the
economic loss rule does not bar claims in a non-products liability
context.
See B&H Farms, LLC v. Winfield Sols., LLC, No. 2:16-CV-
323-FTM-99, 2016 WL 6138625, at *2 (M.D. Fla. Oct. 21, 2016)(noting
that “the economic loss rule
[did]
not bar the
[plaintiff’s
negligence] claim” because the case was not a products liability
case); Zoom Tan, LLC v. Heartland Tanning, Inc., No. 2:12-CV-684FTM-29, 2013 WL 5720140, at *5 (M.D. Fla. Oct. 21, 2013)(noting
that “the economic loss rule cannot serve as a basis for dismissing
[the] plaintiff's claims for negligent misrepresentation” because
the Florida Supreme Court “confined the application of the economic
loss rule to cases involving products liability”).
Because this
is not a products liability case, the Court finds Plaintiff’s
claims are not barred by the economic loss rule.
Assuming
arguendo
that
the
Tiara
concurrence
approach
applies, the Court finds plaintiff has nonetheless alleged torts
independent of breach of contract.8
As discussed infra, Florida
Defendant argues that any alleged tort is not independent
of a claim for breach of contract because Plaintiff testified at
deposition that she believes Defendant’s duty to the Gormans arises
out of the annuity contracts. The Court, however, is unpersuaded
by Plaintiff’s lay opinion as to the source of Defendant’s legal
duty.
8
13
law recognizes that the negligent disbursement of funds is an
independent tort.
See Nat'l Title Ins. Co. v. Lakeshore 1 Condo.
Ass'n, Inc., 691 So. 2d 1104, 1108 (Fla. 3d DCA 1997)(“[O]ne who
undertakes to act for another in the disbursing of funds is
answerable for failure to do so with due care.” (citation and
quotation omitted)).
Moreover, a claim for breach of fiduciary
duty is a “well-established [independent] tort[] . . . even if
there is an underlying oral or written contract.”
Invo Fla., Inc.
v. Somerset Venturer, Inc., 751 So. 2d 1263, 1267 (Fla. 3d DCA
2000).
B.
Whether Defendant Owed the Gormans a Duty under Florida
Negligence Principles
As to Count I, Defendant argues that it owed the Gormans no
legal duty as a matter of Florida law.
The Court disagrees.
The elements of a claim for negligence under Florida law are
(1) duty, (2) breach, (3) causation, and (4) damages.
Clay Elec.
Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).
“[T]he
determination of whether a duty is owed presents a question of law
to be determined by the court.”
Jackson Hewitt, Inc. v. Kaman,
100 So. 3d 19, 28 (Fla. 2d DCA 2011).
Thus, “if no legal duty
exists, then no action for negligence may lie.”
Jenkins v. W.L.
Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003)(citations
omitted).
14
Florida law recognizes that “[t]he obvious duty of care when
managing funds for others is to use reasonable care to avoid
depletion through negligent management or mismanagement.”
Nat'l
Title Ins. Co. v. Lakeshore 1 Condo. Ass'n, Inc., 691 So. 2d 1104,
1107 (Fla. 3d DCA 1997).
This is so because a party that manages
funds for others creates “[t]he foreseeable risk [of] the depletion
of the [funds] belonging to others.”
Id.
Thus, “[o]ne who
undertakes to act for another in the disbursing of funds is
answerable for failure to do so with due care.”
Id. at 1108
(citation and quotation omitted).
In this case, Defendant undertook “to act for [the Gormans]
in the disbursing of funds” from the Patrick and Frances Annuities.
Id.
Thus, the Court finds Defendant owed the Gormans a duty “to
avoid depletion through negligent management or mismanagement.”
Id. at 1107.
C.
Whether Defendant Owed the Gormans a Fiduciary Duty
As to Count II, Defendant agues it is entitled to summary
judgment because no fiduciary duty existed between the Gormans and
Defendant.
The Court disagrees.
Defendant contends that it owed the Gormans no fiduciary duty
because, “as a matter of well-settled Florida law, insurers do not
owe a fiduciary duty to their insured . . . .”
(Doc. #31, p. 24.)
Defendant is correct that a fiduciary duty does not exist between
an insurer and insured “in a first-party bad faith action . . . .”
15
State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 59 (Fla.
1995).
This case, however, is not a first-party bad faith action.
Indeed, although Defendant is a life insurance company, the Buyer’s
Guide to Fixed Deferred Annuities attached to both the Patrick and
Frances Annuities expressly states that such an “annuity is neither
a life insurance nor a health insurance policy.”
(Doc. #32-3, p.
11; Doc. #32-4, p. 11.)
Defendant also argues it owed the Gormans no fiduciary duty
because their “relationship [was] contractual in nature.”
#31, p. 24.)
(Doc.
Defendant is again correct that, in a first-party
bad faith action, the relationship between an insurer and an
insured is akin to that of a creditor and debtor, and “[i]n the
usual
creditor-debtor
arise.”
relationship
a
fiduciary
duty
does
not
Watkins v. NCNB Nat. Bank of Fla., N.A., 622 So. 2d 1063,
1065 (Fla. 3d DCA 1993)(citation omitted); Cardenas v. Miami-Dade
Yellow Cab Co., 538 So. 2d 491, 495 (Fla. 3d DCA 1989), abrogated
on other grounds by Auto-Owners Ins. Co. v. Conquest, 658 So. 2d
928 (Fla. 1995).
As noted above, however, this is not a first-
party bad faith action.
fiduciary
duty
in
a
Moreover,
creditor-debtor
Florida law recognizes a
relationship
where
the
creditor “establishes a confidential or fiduciary relationship
with
a
customer
and
the
transaction
[creditor] is likely to benefit.”
is
one
from
which
the
Watkins, 622 So. 2d at 1065.
To establish such a fiduciary relationship, “a party must allege
16
some
degree
of
dependency
on
one
side
and
some
degree
of
undertaking on the other side to advise, counsel, and protect the
weaker party.”
of fact.
Id.
Whether a fiduciary duty exists is an issue
Crusselle v. Mong, 59 So. 3d 1178, 1181 (Fla. 5th DCA
2011); Morton v. Young, 311 So. 2d 755, 756 (Fla. 3d DCA 1975).
Here, Plaintiff has raised an issue of fact as to whether the
Gormans placed their confidence in Defendant and whether Defendant
undertook
to
“to
advise,
Watkins, 622 So. 2d at 1065.
counsel,
and
protect”
the
Gormans.
For instance, in a letter “[p]repared
especially for” Patrick and Frances Gorman, Defendant thanked and
congratulated the Gormans for purchasing a BonusDex annuity and
stated, “[w]e appreciate your confidence and are mindful of our
responsibility to you and your family or business.”
p. 41; 32-4, p. 41.)
(Doc. #32-3,
The letter further provides that “you have
peace of mind knowing that your money is safe . . . [u]tmost in
our minds is the safety of the funds you entrust to our care.”
(Id.)
Viewing the foregoing evidence in the light most favorable to
Plaintiff, the Court finds Plaintiff has raised an issue of fact
as to whether Defendant owed the Gormans a fiduciary duty to
protect the Gormans from fraudulent surrenders of the Patrick and
Frances
Annuities.
Resolution
of
this
factual
matter
is
inappropriate on a motion for summary judgment. Crusselle v. Mong,
59 So. 3d 1178, 1181 (Fla. 5th DCA 2011)(Whether “an implied
17
fiduciary relationship existed . . . should be considered by a
jury.”); Browning v. Peyton, 918 F.2d 1516, 1522 (11th Cir.
1990)(Under Florida law, summary judgment is inappropriate where
“questions of fact [exist] as to whether a fiduciary relationship
ha[s] been established.”).
D.
Whether Plaintiff Has Submitted Evidence Demonstrating Injury
Defendant argues that, aside from the mere fact that the
Patrick and Frances Annuities were surrendered, Plaintiff has
submitted no evidence raising an issue of fact was to whether the
annuities “were ‘improperly surrendered’ because the Gormans did
not intend to surrender them.”
(Doc. #31, p. 26.)
The Court
disagrees.
As
to
the
Frances
Annuity,
Plaintiff
has
submitted
an
affidavit in which she avers that Frances Gorman’s daughter,
Barbara Gorman, impersonated Frances Gorman on the phone calls
attempting to expedite the Frances Annuity surrender.
(Doc. #41-
1, p. 2.) In addition, as discussed supra, Plaintiff has set forth
evidence detailing that one of Defendant’s representatives, after
speaking on the phone with Frances Gorman, noted that Frances
Gorman did not “seem like she[] really . . . fully underst[ood]
everything, what’s [sic] going on.”
(Doc. #40-5, p. 15.)
As to the Patrick Annuity, Plaintiff has submitted evidence
indicating that the surrender form - purportedly notarized by Nina
Marie Ingoglia – bears a forged signature of Ms. Ingoglia.
18
At
deposition, Ms. Ingoglia testified that her signature next to her
notary stamp on the withdrawal form was “definitely not [hers]”
and that she did not notarize the surrender form.
(Doc. #42-11,
p. 7.) The Court finds that the foregoing evidence raises an issue
of fact as to whether the Patrick and Frances Annuities were
“improperly surrendered.”
E.
Proximate Causation
Defendant lastly argues it is entitled to summary judgment on
Counts I and II because, as a matter of law, Defendant cannot be
the proximate cause of the Gormans’ alleged damages.
The Court
disagrees.
To
establish
claims
for
both
negligence
and
breach
of
fiduciary duty, a plaintiff must demonstrate that the defendant
was the proximate cause of his or her damages.
Gracey v. Eaker,
837 So. 2d 348, 353 (Fla. 2002); Curd v. Mosaic Fertilizer, LLC,
39 So. 3d 1216, 1227 (Fla. 2010).
The issue of proximate causation
“is generally a question of fact concerned with whether and to
what extent the defendant's conduct foreseeably and substantially
caused the specific injury that actually occurred.”
Goldberg v.
Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005)(citation
and quotation omitted).
“[H]arm is ‘proximate’ in a legal sense
if prudent human foresight would lead one to expect that similar
harm is likely to be substantially caused by the specific act or
19
omission in question.”
McCain v. Fla. Power Corp., 593 So. 2d
500, 503 (Fla. 1992)(citation omitted).
As a matter of Florida law, proximate causation cannot be
established where “an intervening cause is completely independent
of,
and
not
in
any
negligence . . . .”
way
set
in
motion
by,
“an
tortfeasor's
Deese v. McKinnonville Hunting Club, Inc.,
874 So. 2d 1282, 1287–88 (Fla. 1st DCA 2004).
principle,
the
intervening
criminal
act
Thus, as a general
breaks
the
chain
of
causation, and therefore the original negligence of the defendant
cannot be the proximate cause of the damage resulting from the
intervening criminal act . . . .”
Nicholas v. Miami Burglar Alarm
Co., 266 So. 2d 64, 66 (Fla. 3d DCA 1972).
However, when an
“intervening criminal act, or the loss therefrom, is foreseeable,
then
the
original
actor's
negligence
may
be
considered
the
proximate cause of the loss, and he may be liable, notwithstanding
the intervening criminal act.”
Singer v. I. A. Durbin, Inc., 348
So. 2d 370, 372 (Fla. 3d DCA 1977)(citation omitted).
The issue “of foreseeability as it relates to proximate
causation generally must be left to the fact-finder to resolve.”
McCain, 593 So. 2d at 504.
Thus, where “reasonable persons could
differ as to whether the facts establish proximate causation . .
. then the resolution of the issue must be left to the factfinder.”
Id.
20
Here, Defendant argues it was not foreseeable that the funds
from the Patrick and Frances Annuities would be misappropriated by
Barbara Gorman and Caroline Silha after being wired to the Gormans’
Regions bank account.
Defendant reasons that Barbara Gorman and
Caroline Silha’s allegedly criminal actions were unforeseeable
intervening
Defendant
acts
that
contends,
broke
the
Plaintiff
chain
cannot
of
causation.
satisfy
causation element as a matter of law.
the
Thus,
proximate
In response, Plaintiff
argues that Defendant’s internal policies demonstrate that the
Gormans’ damages were indeed foreseeable.
In relevant part, Defendant’s internal policies provide that
“[s]ignature verification is . . . the 1st line of defense in
mitigating the risk of fraudulent requests being processed and the
disbursement of funds to malicious fraudsters.”
7.)
(Doc. #39-3, p.
Defendant’s internal policies also provide that a senior
citizen’s
use
of
email
may
be
a
“red
flag”
indicating
that
fraudulent activity is occurring, because it is “not common for a
senior citizen to use email as a form of communication.”
(Id. p.
16.)
As noted supra, there are several unresolved factual issues
in this case, including whether Barbara Gorman posed as Frances
Gorman
on
Annuity’s
signature.
phone
calls
surrender
to
form
Defendant
and
whether
contains
Patrick
the
Patrick
Gorman’s
forged
In light of these issues of fact, and given that
21
Defendant’s
own
internal
policies
contemplate
the
potential
“disbursement of funds to malicious fraudsters,” the Court finds
that “reasonable persons could differ as to whether the facts
establish”
that
Barbara
Silha’s
alleged
misappropriation of the Gormans’ funds was foreseeable.
McCain,
593 So. 2d at 504.
Gorman
and
Caroline
Thus, resolution of the issue of proximate
causation is not appropriately decided on summary judgment in this
case.
Id.
Accordingly, it is now
ORDERED:
Defendant’s Motion for Final Summary Judgment (Doc. #31) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2019.
Copies: Counsel of record
22
20th
day of
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