Transamerica Life Insurance Company v. Caramadre et al

Filing 65

Reply to Counterclaim of Lifemark Securities Corp. by Transamerica Life Insurance Company. (Barry, David)

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND TRANSAMERICA LIFE INSURANCE COMPANY, Plaintiff, v. C.A. No. 09-cv-00471-S-DLM JOSEPH CARAMADRE, RAYMOUR RADHAKRISHNAN, ESTATE PLANNING RESOURCES, INC., ESTELLA RODRIGUES, EDWARD MAGGIACOMO, JR., LIFEMARK SECURITIES CORP. and PATRICK GARVEY, Defendant. PLAINTIFF'S ANSWER TO COUNTERCLAIM OF LIFEMARK SECURITIES CORP. Plaintiff Transamerica Life Insurance Company ("Plaintiff") for its Answer to the Counterclaim of Defendant Lifemark Securities Corp. ("Lifemark") states as follows: Plaintiff denies the allegations contained in the introduction (unnumbered) paragraph of Lifemark's Counterclaim. 1. 2. 3. 4. 5. Plaintiff admits the allegations contained in paragraph 1. Plaintiff admits the allegations contained in paragraph 2. Plaintiff admits the allegations contained in paragraph 3. Plaintiff admits the allegations contained in paragraph 4. Plaintiff states that the Transamerica Landmark Annuity ("Landmark Annuity")

prospectus attached as Exhibit B to Plaintiff's Second Amended Complaint ("Complaint") speaks for itself, and Plaintiff denies the allegations contained in paragraph 5 to the extent that they are inconsistent with the prospectus.
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6.

Plaintiff states that the Landmark Annuity prospectus speaks for itself, and

Plaintiff denies the allegations contained in paragraph 6 to the extent that they are inconsistent with the prospectus. 7. Plaintiff states that the terms of the Landmark Annuity and prospectus speak for

themselves, and Plaintiff denies the allegations contained in paragraph 7 to the extent that they are inconsistent with the Landmark Annuity and/or the prospectus. 8. Plaintiff states that the terms of the Landmark Annuity and prospectus speak for

themselves, and Plaintiff denies the allegations contained in paragraph 8 to the extent that they are inconsistent with the Landmark Annuity and/or the prospectus. 9. Plaintiff states that the terms of the Landmark Annuity and prospectus speak for

themselves, and Plaintiff denies the allegations contained in paragraph 9 to the extent that they are inconsistent with the Landmark Annuity and/or the prospectus. 10. Plaintiff states that the allegations of the Complaint speak for themselves, and

Plaintiff denies the allegations contained in paragraph 10 to the extent that they are inconsistent with the Complaint. 11. In answer to the allegations contained in paragraph 11, Plaintiff admits that the

Rodrigues Annuity was a Landmark Annuity, and Plaintiff further states that the terms of the Rodrigues Annuity speak for themselves, and Plaintiff denies the allegations contained in paragraph 11 to the extent that they are inconsistent with the Rodrigues Annuity. 12. 13. 14. Plaintiff admits the allegations contained in paragraph 12. Plaintiff admits the allegations contained in paragraph 13. Plaintiff admits the allegations contained in paragraph 14.

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15.

Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 15 and therefore those allegations are denied. 16. Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 16 and therefore the allegations are denied. 17. Plaintiff admits the allegation that it has provided Lifemark with variable annuity

application forms in connection with the offering for sale of variable annuities such as the Rodrigues Annuity and further states that the variable annuity application forms speak for themselves. Plaintiff denies the allegations contained in paragraph 17 to the extent that they are inconsistent with the application forms and denies the remaining allegations. 18. In answer to the allegations contained in paragraph 18, Plaintiff admits that the

Landmark Annuity application form was prepared by Plaintiff, and Plaintiff denies the remaining allegations contained in paragraph 18. 19. 20. 21. 22. 23. Plaintiff denies the allegations contained in paragraph 19. Plaintiff admits the allegations contained in paragraph 20. Plaintiff admits the allegations contained in paragraph 21. Plaintiff admits the allegations contained in paragraph 22. Plaintiff states that the Landmark Annuity application speaks for itself, and

Plaintiff denies the allegations contained in paragraph 23 to the extent that they are inconsistent with the Landmark Annuity application form. 24. Plaintiff states that the Landmark Annuity application speaks for itself, and

Plaintiff denies the allegations contained in paragraph 24 to the extent that they are inconsistent with the Landmark Annuity application form.

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25.

Plaintiff denies the allegations contained in paragraph 25 and further states that

the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time applications for annuities were submitted were material and fraudulent omissions. 26. Plaintiff denies the allegations contained in paragraph 26 and further states that

the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time applications for annuities were submitted were material and fraudulent omissions. 27. Plaintiff denies the allegations contained in paragraph 27 and further states that

the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time the applications for the annuities were submitted were material and fraudulent omissions. 28. Plaintiff denies the allegations contained in paragraph 28 because the allegations

were vague, unclear and ambiguous. Plaintiff further states that the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time applications for annuities were submitted were material and fraudulent omissions. 29. Plaintiff admits the allegations contained in paragraph 29 and further states that

the failure by Lifemark and/or its agent to disclose that the annuitant, Patrick Garvey, was terminally ill at the time the application for the Landmark Annuity was submitted was a material and fraudulent omission. 30. Plaintiff denies the allegations contained in paragraph 30 and further states that

the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time applications for annuities were submitted were material and fraudulent omissions. 31. Plaintiff admits the allegations contained in paragraph 31 and further states that

the failure by Lifemark and/or its agent to disclose that annuitants were terminally ill at the time applications for annuities were submitted were material and fraudulent omissions.

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32. 33.

Plaintiff denies the allegations contained in paragraph 32. Plaintiff denies the allegations contained in paragraph 33 as they pertain to

"enhanced death benefits" and "other features" because those terms or phrases are vague, unclear and ambiguous. Plaintiff denies the remaining allegations contained in paragraph 33. 34. 35. Plaintiff denies the allegations contained in paragraph 34. Plaintiff denies the allegations contained in paragraph 35 because the allegations

are vague, unclear and ambiguous. 36. 37. 38. 39. 40. Plaintiff denies the allegations contained in paragraph 36. Plaintiff admits the allegations contained in paragraph 37. Plaintiff admits the allegations contained in paragraph 38. Plaintiff admits the allegations contained in paragraph 39. Plaintiff denies the allegations contained in paragraph 40 because the allegations

are unclear, vague and ambiguous. 41. Plaintiff denies the allegations contained in paragraph 41 because the allegations

are vague, unclear and ambiguous. 42. Plaintiff states that the Landmark Annuity application used in connection with the

Rodrigues Annuity speaks for itself, and Plaintiff denies the allegations contained in paragraph 42 to the extent that they are inconsistent with the Landmark Annuity application. 43. Plaintiff admits the allegations contained in paragraph 43 and further states that

the failure by Lifemark and/or its agent to disclose their knowledge concerning the lack of any relationship between the Owner and the Annuitant of annuities issued by Plaintiff, the Rodrigues Annuity, were material and fraudulent omissions. 44. Plaintiff denies the allegations contained in paragraph 44.

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45. 46. 47.

Plaintiff denies the allegations contained in paragraph 45. Plaintiff denies the allegations contained in paragraph 46. Plaintiff admits that Patrick Garvey, the annuitant for the Rodrigues Annuity, was

the measuring life for the Rodrigues Annuity. Plaintiff denies the remaining allegations contained in paragraph 47. 48. 49. Plaintiff admits the allegations contained in paragraph 48. Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 49 and therefore those allegations are denied. 50. Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 50 and therefore those allegations are denied. 51. Plaintiff admits the allegations contained in paragraph 51 and further states that

Plaintiff relied on the material and fraudulent omissions by Lifemark and/or its agent in issuing the Rodrigues Annuity. 52. Plaintiff admits the allegations contained in paragraph 52 and further states that

Plaintiff relied on the material and fraudulent omissions by Lifemark and/or its agent in issuing the Rodrigues Annuity. 53. Plaintiff admits the allegations contained in paragraph 53 and further states that

Plaintiff relied on the material and fraudulent omissions by Lifemark and/or its agent in issuing the Rodrigues Annuity. 54. 55. Plaintiff admits the allegations contained in paragraph 54. Plaintiff admits the allegations contained in paragraph 55 and further states that

Plaintiff relied on the material and fraudulent omissions by Lifemark and/or its agent in issuing the Rodrigues Annuity.

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56.

Plaintiff admits the allegations contained in paragraph 56 and further states that

Plaintiff relied on the material and fraudulent omissions by Lifemark and/or its agent in issuing the Rodrigues Annuity. 57. 58. 59. Plaintiff denies the allegations contained in paragraph 57. Plaintiff denies the allegations contained in paragraph 58. Plaintiff states that the terms of any agreement between Plaintiff and Lifemark,

including, without limitation, any indemnification agreement speak for themselves, and Plaintiff denies the allegations contained in paragraph 59 to the extent that they are inconsistent with the terms of agreements between Plaintiff and Lifemark. 60. Plaintiff states that the terms of any agreement between Plaintiff and Lifemark,

including, without limitation, any indemnification agreement speak for themselves, and Plaintiff denies the allegations contained in paragraph 60 to the extent that they are inconsistent with the terms of agreements between Plaintiff and Lifemark. 61. 62. 63. Plaintiff denies the allegations contained in paragraph 61. Plaintiff denies the allegations contained in paragraph 62. Plaintiff denies the allegations contained in paragraph 63. COUNT I 64. Plaintiff repeats and restates its responses to paragraph 1 through 63 of the

Counterclaim as if fully set forth herein. 65. Plaintiff denies the allegations contained in paragraph 65. COUNT II 66. Plaintiff repeats and restates its responses to paragraph 1 through 65 of the

Counterclaim as if fully set forth herein. 67.
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Plaintiff denies the allegations contained in paragraph 67. 7

COUNT III 68. Plaintiff repeats and restates its responses to paragraph 1 through 67 of the

Counterclaim as if fully set forth herein. 69. Plaintiff denies the allegations contained in paragraph 69. SEPARATE AND ADDITIONAL DEFENSES By alleging the defenses set forth below, Plaintiff is not agreeing or conceding that it has the burden of proof or the burden of persuasion on any of the issues raised in the defenses. Further, all such defenses are pled in the alternative and do not constitute an admission of liability or that Lifemark is entitled to any relief whatsoever. Plaintiff expressly reserves the right to amend and/or supplement its defenses. First Affirmative Defense Lifemark's Counterclaim fails to state a claim upon which relief can be granted. Second Affirmative Defense Lifemark's Counterclaim is barred, in whole or in part, by the doctrine of waiver. Third Affirmative Defense Lifemark's Counterclaim is barred, in whole or in part, under the doctrine of estoppel. Fourth Affirmative Defense Lifemark's Counterclaim is barred, in whole or in part, by the doctrine of unclean hands. Fifth Affirmative Defense Lifemark cannot recover on its Counterclaim because it had a duty to mitigate its alleged damages, but failed to do so. Sixth Affirmative Defense Lifemark's Counterclaim is barred or reduced by Lifemark's breaches of contract.

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Seventh Affirmative Defense Lifemark's Counterclaim is barred by reason of its failure to perform its obligations under the contract. Eighth Affirmative Defense Lifemark's Counterclaim is barred, in whole or in part, because Lifemark's damages, if any, were caused by Lifemark's own acts or omissions. Ninth Affirmative Defense Lifemark's Counterclaim is barred, in whole or in part, to the extent that its damages, if any, resulted from the acts, omissions, or culpable conduct of some other person or persons for whom Plaintiff is not legally responsible. Tenth Affirmative Defense Any amount sought to be recovered by Lifemark on its Counterclaim is barred by Plaintiff's right of offset based on the amounts due to Plaintiffs from Lifemark by way of damages. Eleventh Affirmative Defense Plaintiff has not knowingly or intentionally waived any applicable affirmative defense and reserves the right to assert and rely on such other applicable affirmative defenses as may later become available or apparent. Plaintiff further reserves the right to amend its answer and affirmative defenses accordingly and/or to delete affirmative defenses that it determines are not applicable during the course of discovery in this action.

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Dated: October 25, 2010 Respectfully submitted /s/ David E. Barry Brooks R. Magratten, Esq., No. 3585 Michael J. Daly, Esq. No. 6729 David E. Barry, Esq., pro hac vice admitted PIERCE ATWOOD LLP Attorneys for Plaintiff 10 Weybosset St., Suite 400 Providence, RI 02903 [phone] [Tel.] [phone] [Fax] [e-mail] [e-mail] [e-mail]

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UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND CERTIFICATE OF SERVICE I certify that the within document was electronically filed with the clerk of the court on October 25, 2010, and that it is available for viewing and downloading from the Court's ECF system. Service by electronic means has been effectuated on all counsel of record. Dated: October 25, 2010 Respectfully submitted /s/ David E. Barry David E. Barry, Esq., pro hac vice admitted PIERCE ATWOOD LLP Attorney for Plaintiff One Monument Square Portland, ME 04101 [phone] [Tel.] [phone] [Fax.] [e-mail]

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