IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SUN LIFE ASSURANCE COMPANY
OF CANADA,

Plaintiffs, C.A. No. Nl7C-08-33l l\/IMJ CCLD

)
)
)
)
)
V. )
)
WILMINGTON TRUST, NATIONAL )
ASSOCIATION, as Securities )
Intermediary, and GREGG GOTTLIEB, )
)

Defendants. )

Submitted: May l7, 2018
Decided: August 9, 2018

OPINION
Joseph J. Bellew, Esq., Joseph Kelleher, Esq. (argued), Michael J. Miller, Esq.,
Charles J. Vinicombe, Esq., Gregory J. Star, Esq., Cozen O’Connor, Attorneys for
Plaintiff Sun Life Assurance Company of Canada
Harry S. Davis, Esq. (argued), Robert E. Griffm, Esq., Schulte Roth & Zabel LLP,

Kevin G. Abrams, Esq., John M. Seaman, Esq., E. Wade Houston, Esq., Abrams &
Bayliss LLP, Attorneys for Defendant Wilmington Trust, National Association, as

Securities Intermediary

JOHNSTON, J.

FACTUAL AND PROCEDURAL CONTEXT
This is an action for declaratory judgment involving a life insurance policy.
Plaintiff Sun Life Assurance Company of Canada (“Sun Life”) sold a New York

businessman a $10 million life insurance policy, Which Was held by the businessman

in a trust. The trust sold the policy in the life insurance settlements market, Where it
Was eventually transferred to Wilmington Trust, National Association,
(“Wilmington Trust”), one of the defendants in this case. When the original policy
holder died, Wilmington Trust notified Sun Life of the death and began the steps
necessary to collect the claim. Sun Life then initiated this action.

In its complaint, Sun Life alleges that the policy Was a stranger oriented life
insurance policy, known as a STOLI. lt seeks a declaratory judgment that the policy
Was void ab initio as an illegal Wager on human life. Sun Life asserts that the trust
Was an illegitimate cover for this Wager. Therefore, the trust lacked both an insurable
interest in the policy and the capacity to form a contract. Sun Life also brings four
claims solely against the producer of the policy, defendant Gregg Gottlieb:
fraudulent inducement, fraud, negligent misrepresentation, and breach of contract.

The Defendants argue that the policy is valid. Defendants have alleged four
counterclaims as a result of Sun Life’s nonpayment breach of contract, breach of
the implied covenant of good faith and fair dealing, a violation of a Massachusetts
law prohibiting unfair and deceptive trade practices, and promissory estoppel.
Defendants also asserted six affirmative defenses in their answer: failure to state a
claim, statute of limitations and incontestability, laches, Waiver and estoppel,
unclean hands, and lack of standing.

Sun Life has moved to dismiss each of the counterclaims and to strike all of

the affirmative defenses except for failure to state a claim.

MOTION TO STRIKE AND
MOTION TO DISMISS STANDARD

Superior Court Civil Rule 12(f) permits the Court to strike “any insufficient
defense” or “redundant, immaterial, impertinent or scandalous matter.”l The
movant must show “clearly and Without doubt that the matter sought to be stricken
has no bearing on the . . . litigation.”2 Because motions to strike are disfavored in
Delaware, they are “granted sparingly” and only Where “clearly Warranted, With
[any] doubt resolved in favor of the pleadings.”3

In a Rule 12(b)(6) motion to dismiss, the Court must determine Whether the
claimant “may recover under any reasonably conceivable set of circumstances
susceptible of proof.”4 The Court must accept as true all Well-pleaded allegations5
Every reasonable factual inference Will be drawn in the non-moving party’s favor.6
If the claimant may recover under that standard of review, the Court must deny the

motion to dismiss.7

 

1 super. Cr. Civii R. iz(i).

2 In re Estate of Cornelius, 2002 WL 1732374, at *4 (Del. Ch.).

3 O'Neill v. AFS Hldgs., LLC, 2014 WL 626031, at *5 (Del. Super.).

4 Spence v. Funk, 396 A.2d 967, 968 (Del.l978).

5 Id.

6 Wilmington Sav. Fund. Soc ’v, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.) (citing
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).

7 Spence, 396 A.2d at 968.

ANALYSIS
Motion to Dismiss Counterclaims

Sun Life argues that the Court should dismiss Wilmington Trust’s breach of
contract and breach of the duty of good faith counterclaims because seeking a
declaratory judgment as to Whether a death benefit is valid and payable does not
breach either of these obligations It argues that the Court should dismiss the
counterclaim for a violation of Massachusetts’ law regarding deceptive and unfair
trade practices because the “center of gravity” of the allegations in the complaint is
not in Massachusetts. Finally, Sun Life argues that the Court should dismiss
Wilmington Trust’s promissory estoppel counterclaim because the policy Was void
ab initio.

The resolution of both motions primarily hinges on the interpretation and
applicability of recent decisions cited by the parties regarding the effect of a void
life insurance policy on the viability of claims related to the contract.

The foundational case in this area is PHL Varz'able Insumnce Company v.
Price Dawe 2006 Insurance Trust, ex rel. Christiana Bank & Trust C0.8 Dawe is
commonly cited for its holding that “a life insurance policy lacking an insurable

interest is void against public policy and thus never comes into force . . . .”9 More

 

8 28 A.3d 1059 (Dei. 201 i).
91d. at1065.

germane to the motion before the Court is Dawe’s holding that “an insurer can
challenge the enforceability of a life insurance contract after the incontestability
period Where a lack of insurable interest voids the contract.”10

Dawe’s procedural posture, however, is not completely parallel to this case.
The court in Dawe issued its ruling in response to a certified question on
contestability, not on a motion to dismiss counterclaims Three federal district court
cases subsequent to Dawe dealt With claims related to alleged STOLIs.

In PHL Varz'able Insurance Company v. ESF QIF Trust,ll the court addressed
a motion to dismiss counterclaims alleging a violation of the Delaware Consumer
Fraud Act, a breach of the duty of good faith and fair dealing, breach of contract,
fraud, negligent misrepresentation, and promissory estoppel.12 The court granted
dismissal of the Delaware Consumer Fraud Act claim, Which Was voluntarily
Withdravvn, and the breach of the duty of good faith and fair dealing claim, because
only a breach of an express contract term Was alleged.13 The court held that all other
counterclaims Were adequately pled.

In Wilmington Savz`ngs Fund Sociely, FSB v. PHL Variable Insurance

Company,l4 the Court addressed a motion to dismiss a second amended complaint

 

10 ]d. at 1068.

11 2013 WL 6869803 (D. Del.).
12 Id. at *9.

13 Id. at *8.

14 2014 WL 1389974 (D. Dei.).

Which contained claims equivalent to Wilmington Trust’s counterclaims in this case.
The court dismissed a fraud claim for a lack of specificity and dismissed claims for
a breach of the duty of good faith and fair dealing as “simply repackaged breach of
contract claims.”15 Most significantly, citing Dawe, the court also dismissed a
promissory estoppel claim, holding that any policy that is declared void ab initio
may not be enforced through estoppel.16

Finally, in Penn Life Mutual Life Insurance Company v. Espinosa,17 the court
granted a motion to amend an answer and counterclaims to assert breach of contract
and a breach of the duty of good faith and fair dealings claims. The court held that
it Was not

persuaded that it Will be inefficient, under the circumstances presented

here to litigate the validity and enforceability of the . . . policy at the

same time the parties are litigating Whether Penn Mutual has breached

any contractual obligations under that policy and/or acted in bad faith.

The Espinosa Trust’s claims cannot be found, at this stage, to be futile

based merely on Penn Mutual’s denial of the Espinosa Trust’s

allegations, Which must at this point be taken as true.18

This Court finds that these District Court cases can be reconciled With the

Delaware Supreme Court’s decision in Dawe. Dawe simply stands for the general

principle that there can be no contractual prohibition contesting enforceability When

 

15 1a ar *ii.
161d. at *12.
11 70 F. supp. 3d 628(1). Dei.).
111 Id. at 633.

the agreement is void ab initio. This rule does not, however, require dismissal of all
counterclaims based on the contract, The federal cases demonstrate that the proper
course of action is to evaluate each claim or counterclaim individually for
sufficiency of pleading, Without regard to the opponent’s argument that the contract
is void.

The exception, as enunciated in Wilmington Savings Funa', is for an estoppel
claim. Logically, if the contract is found to be valid, estoppel Would no longer be
an available claim.19 If the contract is instead void ab initio, Dawe prohibits
asserting estoppel as Well.20 Accordingly, the instant motion to dismiss the
counterclaims is granted in regard to the promissory estoppel claim.

The motion to dismiss the counterclaims is denied in regard to all the other
counterclaims The Court holds that the breach of contract and the breach of the
implied covenant of good faith and fair dealing are sufficiently pled. As for the
Massachusetts unfair and deceptive trade practices claim, assuming all facts in the
light most favorable to the non-moving party, there are too many issues of fact
surrounding the “center of gravity” grounds asserted by Sun Life to dismiss this

claim at the pleading stage.

 

19 See SIGA Technologies, lnc. v. PharAthene, Inc., 67 A.3d 330, 348 (Del. 2013) (“Promissory
estoppel does not apply, however, Where a fully integrated, enforceable contract governs the

promise at issue.”).
20 Wilmington Savings Funa’, 2014 WL 1389974, at *11.

7

Motion to Strike Affirmative Defenses

Sun Life has moved to strike Wilmington Trust’s affirmative defenses of
statute of limitations and incontestability, laches, waiver and estoppel, unclean
hands, and lack of standing

The Court denies the motion to strike as to standing. Wilmington Trust is
entitled to argue that Sun Life lacks the standing to attack the validity of the trust
itself, but not the policy.

The Court denies the motion to strike the statute of limitations and
incontestability defense at this time. Limited discovery is needed to determine
whether New York or Delaware law applies

The Court grants the motion to strike the equitable defenses of laches, waiver
and estoppel, and unclean hands The estoppel defense is stricken for the same
reason the promissory estoppel counterclaim is dismissed-“a contract that is void
ab initio may not be enforced equitably through estoppel . . . .”21 Further, this Court
lacks jurisdiction to consider the laches and unclean hands defenses Such equitable

claims are reserved for the Court of Chancery.22

 

21 Wilmington Savings Funa’, 2014 WL 1389974, at *12.

22 Prospect Street Energy, LLC v. Bhargava, 2016 WL 446202, at *3 (Del. Super.) (“Dismissal is
proper where a claim amounts to a ‘purely equitable cause of action’ because the ‘Superior Court’s
jurisdiction lies in matters of law, as opposed to the Court of Chancery’s jurisdiction, which lies
in matters of equity.”’) (quoting Dickerson v. Murray, 2015 WL 447607, at *2-3 (Del. Super.));
Mine Safety Appliances Company v. AIU Insurance Company, 2016 WL 498848, at *12 (Del.
Super.) (“Laches is an equitable defense that is not available in the Superior Court, which is a court
of law.”).

Q(M

Sun Life’s Motion to Dismiss Counterclaims is hereby GRANTED IN PART
AND DENIED IN PART. The breach of contract, breach of implied covenant of
good faith and fair dealing claims, and Massachusetts unfair and deceptive trade
practices claim are sufficiently pled. The promissory estoppel counterclaim is
dismissed because it is not an available counterclaim against an allegedly void ab
initio contract.

Sun Life’s Motion to Strike Affirmative Defenses is hereby GRANTED IN
PART AND DENIED IN PART. The motion is granted as to the equitable
defenses of laches, waiver and estoppel, and unclean hands because this Court lacks
jurisdiction The motion is denied for the affirmative defenses of a lack of standing
and statute of limitations and incontestability.

IT IS SO ORDERED.

 

The%<{norayigMary M. Johnston

