Loren J. Chassels, et al. v. Benjamin L. Krepps, et al.
Case No. 954, September Term 2016
Opinion by Nazarian, J.

HEADNOTES

SETTLEMENT AGREEMENT – ASSUMPTION OF DUTY – PLEADING
Where a defendant assumed his wife’s obligation to maintain an insurance policy she was
required by her divorce agreement to maintain, the trial court erred in denying the
plaintiff, her ex-husband, an opportunity to amend his complaint to allege that the
husband had assumed and breached duties to the plaintiff and his daughter.


UNJUST ENRICHMENT
The trial court erred in dismissing the plaintiff’s unjust enrichment claim where the
plaintiff alleged that the defendant had allowed a life insurance policy to lapse to avoid
incurring the cost of the premiums.
Circuit Court for Frederick County
Case No. 10-C-15-002207

                                                  REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND

                                                    No. 954

                                             September Term, 2016



                                          LOREN J. CHASSELS, et al.

                                                         v.

                                         BENJAMIN L. KREPPS, et al.



                                        Woodward, C.J.
                                        Nazarian,
                                        Arthur,

                                                       JJ.



                                             Opinion by Nazarian, J.



                                        Filed: December 4, 2017
       This case presents an obvious wrong that lacks an obvious remedy. There is no

dispute that the late Melissa C. Krepps (“Mother”) and her husband, Benjamin L. Krepps

(“Husband”), failed to maintain a life insurance policy on Mother’s life for the benefit of

her minor child (“Child”). Mother’s divorce and agreement with the child’s father, Loren

J. Chassels (“Father”), unambiguously required her to do so, and Mother and Husband let

the policy lapse before she died. As a result, the $250,000 in policy proceeds that the Child

should have collected after her mother’s death were not paid.

       The question is whether a meaningful remedy lies somewhere, and if so, against

whom. Father filed a six-count complaint in the Circuit Court for Frederick County against

Mother’s Estate and Husband. The circuit court dismissed the complaint with leave to

amend Count VI, a claim of unjust enrichment against Husband, but without leave to

amend the other claims. After Father amended, Husband moved again to dismiss, and the

circuit court granted the motion, this time with prejudice. Father appeals, and we affirm

the judgment as to Counts III and IV, reverse as to Counts I, II, V, and VI, and remand, a

partial victory that may well prove Pyrrhic.

                                 I.     BACKGROUND

       Father and Mother were married, and Child was born in 2002. At the time of Child’s

birth, Father and Mother were both practicing doctors. The marriage eventually failed.

       Father and Mother divorced on February 21, 2006 and filed a Separation Agreement

(“Agreement”) with the St. Louis County court in Missouri, where they lived at the time.

Father retained physical custody of Child, while Mother, who later married Husband and

moved to Virginia, had visitation. As part of the Agreement, Father and Mother each agreed
to maintain a $250,000 life insurance policy for the benefit of Child and list the other parent

as trustee beneficiary. The Agreement also provided that if “either party fails to provide

life insurance for any reason, his or her estate shall be liable for the amount [of $250,000].”

To that end, the Agreement directed that “[e]ach party shall at all times herein provided

take whatever action is required to keep his or her insurance policy or policies in full force

and effect, and shall furnish proof of such insurance coverage and compliance with the

terms herein provided, if requested.”

       Over the course of the next several years, the relationship between Mother and

Father became strained. In 2008, Mother stopped working as a doctor and became a stay-

at-home mom for her and Husband’s children. Husband became the sole bread-winner and

took on the responsibility of paying all of the bills. This arrangement, according to Father,

allegedly included the decision to funnel all of Mother’s assets and funds into a joint

account, then into an account titled only in Husband’s name. Father alleges that in the

course of marshaling the family assets, Husband contacted Father and left a voicemail

confirming that Husband knew about the Agreement’s life insurance requirement and other

details about child support, and “that he would do whatever is necessary to make sure the

settlement agreement was complied with.” (emphasis added). In that same time frame,

Father apparently requested, and received, proof that Mother was maintaining the required

life insurance policy for the Child. Mother confirmed that Husband maintained a life

insurance policy for Child through his Army benefits, and Father alleged that he received

a copy of Husband’s paystub showing deductions for the life insurance policy.



                                              2
       In January 2013, Mother was diagnosed with a Stage IV melanoma in her brain.

That same year, Mother and Husband bought and moved into a house in Maryland titled

solely in Husband’s name. Also around that time, Husband changed jobs and, because the

premiums no longer were deducted from his paycheck at his new job, stopped paying the

premiums on the life insurance policy and the policy lapsed. Father had no notice that the

premiums weren’t being paid or that the policy had lapsed. Mother died in February 2015.

A month later, Father contacted Husband about the life insurance policy and learned that

the policy had lapsed.

       Father filed a complaint (“Complaint”), on behalf of Child, on March 18, 2015. The

Complaint named both Husband and the Estate of Melissa C. Krepps (the “Estate”) as

Defendants,1 and stated six counts: Count I—Concealment or Non-Disclosure; Count II—

Negligent Concealment or Non-Disclosure; Count III—Constructive Fraud; Count IV—

Constructive Trust; Count V—Negligence; and Count VI—Unjust Enrichment. Husband

filed a motion to dismiss the Complaint in December 2015. After a number of

continuances, the circuit court held a hearing, took the motion under advisement, and

issued an order on April 13, 2016. The order dismissed Counts I-V, but gave Father leave

to amend Count VI. Father amended and re-filed the full six-count Complaint on May 13,

2016. Husband again moved to dismiss, and after a hearing on July 5, 2016, the circuit




1
 The Estate was dismissed without prejudice in August 2016 for lack of jurisdiction and
apparent lack of service. The Estate also doesn’t appear to exist; at least as of the date
oral argument, neither Husband nor anyone else had opened an Estate for Mother.
                                             3
court granted Husband’s motion to dismiss on all counts with prejudice. Father filed a

timely notice of appeal.

                                   II.     DISCUSSION

       It seemed simple enough on the surface. Mother agreed, as part of the divorce, to

maintain a $250,000 life insurance policy on her life, with Child as the beneficiary, to

provide for Child in the event of her untimely death. Mother failed to do so, then died. As

such, Mother breached the Agreement, and under the terms of the Agreement itself, Father

would seem to have a claim (on Child’s behalf) in Mother’s Estate.

       The problem is that there is no Estate, or at least not yet. Father’s briefs characterize

Husband as willfully diverting Mother’s assets into his own name before she died, leaving

nothing subject to probate and thus no Estate to open, and nothing against which Father

and Child can enforce Mother’s failure to maintain the insurance policy. Whether

Husband’s financial actions in the time before Wife’s death might amount to some sort of

fraudulent conveyance or were otherwise improper is not before us; we don’t know, and

we don’t speculate about, whether there might be some way for Father to open an Estate

himself or otherwise create some avenue of recovery against Mother’s former assets.

       We have before us instead Father’s effort to recover from the person to whom he

assigns responsibility for the policy’s lapse. Stated in non-legal terms, Father blames

Husband for failing to pay the premiums and for (mis)leading Father to believe that he and

Mother were complying with the Agreement. Father’s challenge lies in converting this real-

life sense of responsibility into viable claims at law. In two rulings, the circuit court

dismissed all of Father’s claims, and his four questions on appeal coalesce ultimately into

                                               4
one: did the circuit court err in granting Husband’s motions to dismiss with prejudice?2

Father contends that the court erred in finding that his complaint, as filed or as amended,

did not contain sufficient facts to meet basic pleading requirements or to state a claim.

Husband responds that even if the facts contained in the complaint were true, they cannot

state a claim upon which relief can be granted because he was neither a party to the

separation agreement nor was he enriched by Mother’s death.

         When reviewing a trial court’s decision to grant a motion to dismiss, we determine

whether, if true, the allegations in the complaint would “satisfy the elements necessary to

obtain the relief sought.” Kaye v. Wilson-Gaskins, 227 Md. App. 660, 674 (2016). We

“presume the truth of all well-pleaded facts in the complaint, along with any reasonable

inferences derived therefrom.” Higginbotham v. Pub. Serv. Comm’n of Maryland, 171 Md.

App. 254, 264 (2006) (cleaned up).3



2
    In his brief, Father phrased the Questions Presented as follows:

               A. Whether the trial court was legally correct in dismissing each and every
                  count of the Complaint, and as amended, pleaded in the alternative
                  under Maryland Rule 2-322, for failure to state a claim.
               B. Whether the Complaint, and as amended, alleged facts that, if true,
                  would justify recovery under any established theory.
               C. Whether, presuming the truth of all pleaded facts, along with any
                  reasonable inferences derived therefrom, the trial court properly
                  dismissed each and every count.
               D. Whether the Court, under the liberal amendment rule, abused its
                  discretion in not granting Plaintiff leave to amend Counts 1-V of the
                  Complaint.
3
  “Cleaned up” is a new parenthetical intended to simplify quotations from legal sources.
See Jack Metzler, Cleaning Up Quotations, J. APP. PRAC. & PROCESS (forthcoming
2018), https://perma.cc/JZR7-P85A. Use of “cleaned up” signals that the current author
has sought to improve readability by removing extraneous, non-substantive clutter (such
                                               5
       The six counts at issue here fall into three categories—(1) claims that require the

plaintiff to allege a duty on the part of the defendant, (2) claims that require the plaintiff

and the defendant to be in a special relationship, and (3) unjust enrichment—and we

address them in those groupings.

       A. Father Should Have Had An Opportunity To Amend His Complaint To
          Attempt To Allege A Duty Between Husband And Child.

       The first group of claims—styled as Count I: Concealment or Non-Disclosure;

Count II: Negligent Concealment or Non-Disclosure; and Count V: Negligence—all

require Father to establish that the defendant, in this case Husband, owed a duty to the

plaintiff, in this case Child. With no Estate to sue, any such duty needs to flow from

Husband, in his personal capacity, to Child; none arises directly from their relationship as

step-parent and -child or from the Agreement. But under these circumstances, the circuit

court cut off prematurely Father’s opportunity at least to allege that Husband assumed

duties to Child when he took on a direct role in Mother’s performance of the Agreement

and when he made representations to Father about Mother’s ongoing compliance. It’s not

obvious he can state a claim, but he should at least have had the opportunity to amend his

complaint to try, so we vacate the dismissal as to Counts I, II, and V and remand.

       To survive a motion to dismiss, all three counts in this group required Father first to

allege a duty on Husband’s part to do or disclose something, then to connect Husband’s

failure to do or disclose something to the harm suffered by Child. Count I, Concealment or




as brackets, quotation marks, ellipses, footnote signals, internal citations or made un-
bracketed changes to capitalization) without altering the substance of the quotation.
                                              6
non-disclosure, required Father to allege that Husband (1) “had a duty to disclose

something, (2) failed to disclose it, (3) with the intent to deceive, that (4) the failure caused

Father to act in justifiable reliance on the failure, and that (5) Child suffered damage as a

result. Blondell v. Littlepage, 413 Md. 96, 119 (2010).

       Father then alleges two flavors of negligence. Negligent concealment, the title of

Count II, “has [not] been recognized as a tort in Maryland,” Shaw v. Brown & Williamson

Tobacco Corp., 973 F. Supp. 539, 550 n.2 (D. Md. 1997), but the allegations in that Count

track the elements of negligent misrepresentation,4 which has, and we’ll look to the



4
  In his Amended Complaint, Father included the following allegations as part of Count
II:

    29. [Father] realleges and incorporates all allegations contained in paragraphs 1
        through 21 of the complaint, as if fully set forth herein.

    30. [Husband] had a duty to disclose, but failed to disclose material facts to [Father].

    31. [Mother and Husband], after entering their own agreement for handling their
        monetary obligations, knew of the lapsing and/or non-coverage of [Child], but
        decided: (1) not to pay the life insurance premiums, (2) not to keep in force a life
        insurance policy for the benefit of [Child], and (3) not to warn [Father] of lapsing
        and non-coverage.

    32. Had [Father] known these material facts, [Father] would have acted to protect
        [Child] by continuing premiums and/or pursuing the obligation on behalf of
        [Child].

    33. [Father] acted in justifiable reliance upon the concealment and non-disclosure.

    34. [Father] had suffered loss and damages as a result of these actions to conceal and
        not disclose material facts.

    35. [Father]’s own actions do not constitute contributory negligence.

                                               7
substance rather than the label. See Gilbane Bldg. Co. v. Fed. Reserve Bank of

Richmond, 80 F.3d 895, 900 (4th Cir. 1996).             To state a claim for negligent

misrepresentation, Father must allege that (1) Husband, “owing a duty of care to [Child],

negligently assert[ed] a false statement,” (2) Husband intended Father or Child to rely on

his statement, (3) Husband knew that they likely would rely and that reliance could result

in loss, (4) Father or Child did rely on that statement, and (5) Child suffered injury as a

result. Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 226 Md. App.

420, 457–58 (2016), aff’d, 451 Md. 600 (2017); Flaherty v. Weinberg, 303 Md. 116, 135

(1985). Count V of the Complaint is a straight negligence claim, which generally requires

a plaintiff to allege “the existence of four elements: a duty owed to him (or to a class of

which he is a part), a breach of that duty, a legally cognizable causal relationship between

the breach of duty and the harm suffered, and damages.” Jacques v. First Nat’l Bank, 307

Md. 527, 531 (1986).

       Since Husband is not Child’s father or a party to the Agreement, any duty he might

have to Child will have to arise elsewhere. Stated most generally, a duty is “an obligation,

to which the law will give recognition and effect, to conform to a particular standard of

conduct toward another.” Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 415 (2005)

(cleaned up). “Whether a legal duty exists between parties is a question of law to be decided

by the court.” 100 Investment Ltd. Partnership v. Columbia Town Center Title Co., 430

Md. 197, 211 (2013). A duty can arise by statute, by contract, or by operation of a special


   36. [Father] did not discover the concealment and non-disclosure until after the death
       of [Mother], who died on February 23, 2015.
                                             8
relationship, Bobo v. State, 346 Md. 706, 715 (1997), depending on the policy the duty is

meant to serve:

              In determining whether a duty exists, it is important to consider
              the policy reasons supporting a cause of action in negligence.
              The purpose is to discourage or encourage specific types of
              behavior by one party to the benefit of another party. While
              foreseeability is often considered among the most important of
              these factors, its existence alone does not suffice to establish a
              duty under Maryland law.

Pendleton v. State, 398 Md. 447, 462 (2007) (cleaned up). A defendant may also “interject

[himself]” into a prior agreement, thereby “assum[ing] a duty” through his actions. UBS

Fin. Servs., Inc. v. Thompson, 217 Md. App. 500, 518, 530 (2015), aff’d, Thompson v. UBS

Financial Services, Inc., 443 Md. 47 (2015). In UBS Financial Services, the Court found

that the appellant, Mr. Witherspoon, assumed a duty “to pay insurance premiums and notify

the appellees when the premiums went unpaid.” UBS Fin. Servs., Inc., 217 Md. App. at

518. Mr. Witherspoon assumed this duty “by taking it upon himself to receive the premium

notices and coordinate the payment of the insurance premiums.” Id. The Court noted that

this duty was “limited in nature” and “not fiduciary,” unlike the duties that arise from a

confidential relationship, because the Court did not want “to expand the concept of

fiduciary duty to provide appellees a remedy when a cause of action for negligence [was]

available to them.” Id. Instead, the scope of the duty was a function of the role Mr.

Witherspoon assumed in the life of the transactions at issue.

       In claims for pure economic loss, a tort duty requires an intimate nexus between the

parties. Jacques, 307 Md. at 534. That intimate nexus may be satisfied by contractual

privity, which we don’t have here, or its equivalent, id. at 435–35, which can include

                                              9
situations in which: (1) the defendant was aware that his assertions would be used for a

particular purpose; (2) the defendant knew that his assertions were intended for a particular

party; (3) and the defendant understood that the party would rely on those assertions.

Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 617–18

(2017) (citing to Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645, 674 (2000)).

The Court noted in Balfour that the key element is “linking conduct—enough to show the

defendant knew or should have known of the plaintiff’s reliance. This means, of course,

that context is critical.” Balfour, 451 Md. at 620–21.

       Husband isn’t a party to the Agreement and had no contractual duty to Child. But

when Husband took over the family finances, it is possible to imagine, and perhaps to

allege, that he created an intimate nexus between himself and Child that gave rise to a duty

to keep Father informed about his and Mother’s compliance with the Mother’s insurance

obligation. In the amended complaint, even though he was amending only as to the unjust

enrichment claim, Father alleged that Husband contacted him and left a voicemail

explaining that “he had discussed the details of child support, medical, educational, and

life insurance obligations with [Mother] and that he would do whatever is necessary to

make sure the settlement agreement was complied with,” (emphasis added), and that

Mother provided a paycheck receipt showing payroll deductions for the life insurance

policy, but then never disclosed Husband’s decision to let the policy lapse.

       The circuit court dismissed Counts I, II, and V because it could not discern any facts

that created a duty outside of a stepparent’s “failure to provide for support of a stepchild,”

a duty that, we agree, is not generally recognized under Maryland law. See, e.g. Brown v.

                                             10
Brown, 287 Md. 273 (1980). But Father was attempting to assert a different, more situation-

specific duty. Husband might not have had a duty to act or speak in the first place, since

the core obligations here arose from the Agreement, and thus among Mother and Father

and Child. And Husband never actually made a false statement to Father or Child. But

once Husband assumed responsibility for complying with the Agreement and represented

to Father that he would fulfill that responsibility, he may have assumed a duty at least not

to conceal his decision to cease compliance or, by omission or commission, to mislead

Father into thinking that he remained in compliance. See RESTATEMENT (SECOND) OF

TORTS, § 551(2)(c) (including, among circumstances giving rise to liability for

nondisclosure, when “[o]ne party to a business transaction is under a duty to exercise

reasonable care to disclose to the other before the transaction is consummated, . . . [and]

subsequently acquired information that he knows will make untrue or misleading a

previous representation that when made was true or believed to be so.”). The amendments

Father made in support of his unjust enrichment theory (more on that below) demonstrate

that the dismissal of Counts I, II, and V without leave to amend was premature, so we

vacate the judgment as to those Counts and remand so that Father can amend his complaint,

and for further proceedings as appropriate.

       B. There Was No Confidential Relationship.

       Count III, titled Constructive Fraud, and Count IV, Constructive Trust, both depend

on the existence of a confidential relationship between the plaintiff and defendant. As to

the former, we agree with the circuit court that there was no such relationship; as to the

latter, a constructive trust is a remedy, not a claim unto itself.

                                               11
       We’ll take them in reverse order. A constructive trust is an equitable remedy, not a

cause of action in itself. A constructive trust may be imposed by the court where property

was acquired through an improper method or a breach of a confidential relationship,

Wimmer v. Wimmer, 287 Md. 663, 668 (1980), or where there is a “higher equitable call”

on that property by the complaining party. Starleper v. Hamilton, 106 Md. App. 632, 640

(1995). Whether or not a constructive trust might be an appropriate remedy, there is no

standalone cause of action for “constructive trust,” and the court was right to dismiss Count

IV.

       Constructive fraud is a cause of action, and requires proof that the defendant

breached a legal or equitable duty by deception or by violating a confidence. Thompson v.

UBS Financial Services, Inc., 443 Md. 47, 69–70 (2015). The duty generally arises in a

context of trust or confidence, such as a fiduciary duty or confidential relationship. Id.

When such a duty is breached by deceptive conduct, it doesn’t matter whether the culpable

party had a dishonest purpose or intent to deceive. Ellerin v. Fairfax Sav., F.S.B., 337 Md.

216 (1995). Instead, this breach of duty is “fraudulent because of its tendency to deceive

others, to violate public or private confidence, or to injure public interests.” Canaj, Inc. v.

Baker and Division Phase III, LLC, 391 Md. 374, 421–22 (2006). Mere non-compliance

with a legal duty is not necessarily constructive fraud, though. Walter E. Heller & Co. v.

Kocher, 262 Md. 471 (1971).

       The prerequisite both to a claim for constructive fraud and the imposition of a

constructive trust is a “confidential relationship,” a relationship in which “dominion or

influence [is] exercised by one person over the other.” Midler v. Shapiro, 33 Md. App. 264

                                              12
(1976). Relationships such as those between an attorney and client or a trustee and

beneficiary are presumed to be confidential, UBS Fin. Servs., Inc. v. Thompson, 217 Md.

App. 500, 517 (2015), likewise, a familial relationship may also give rise to a confidential

relationship, but its “mere existence … is not indicative of a confidential relationship.”

Orwick v. Moldawer, 150 Md. App. 528, 538–39 (2003). In familial relationships, the

formation of a confidential relationship is “an issue of fact and is not presumed as a matter

of law.” Sanders v. Sanders, 261 Md. 268, 276 (1971). Courts look at whether one party

must “necessarily repose trust and confidence in the good faith and integrity of the

other,” Orwick, 150 Md. App. at 536, and “whether a level of trust and confidence exists

between two people.” Id. at 538–39. Confidential relationships must be established by

clear and convincing evidence. Thompson, 217 Md. App. at 517.

       We agree with the circuit court that Father has not alleged facts that demonstrate a

confidential relationship between Husband and Child. Unlike the legal duties that Father

may have assumed through his actions, a confidential relationship requires, well, a

relationship, and even Father characterizes the relationship between Child and Husband as

“much forgotten and outside of [Mother and Husband’s] immediate concerns.” The level

of contention and mistrust between Father and Husband belies any notion that Father and

Husband had any “level of trust and confidence” between them, Orwick, 150 Md. App. at

538–39, let alone that Father would be expected to rely on Husband. Wherever Father and

Child’s remedies might lie, we agree that they aren’t the result of constructive fraud.

       C. Father Stated A Claim For Unjust Enrichment.



                                             13
       Finally, Father contends that the circuit court erred in dismissing Count VI, his

claim for unjust enrichment. And we agree that his amended complaint did state a claim,

although the extent to which Husband was, in fact, enriched, and thus the available

damages, might well not amount to much.

       Unjust enrichment is “an obligation which the law creates in absence of any

agreement, when and because the acts of the parties or others have placed in the possession

of one person money, or its equivalent, under such circumstances that in equity and good

conscience he ought not to retain it. Cnty. Comm’rs of Caroline Cnty. v. J. Roland Dashiell

& Sons, Inc., 358 Md. 83, 94–95 (2000); see also Robinette v. Hunsecker, 212 Md. App.

76, 126 (2013) (“Admittedly, a claim of unjust enrichment, a quasi-contract claim, ‘may

not be brought where the subject matter of the claim is covered by the express contract

between the parties.’”) (cleaned up); accord Pettus v. McDonald, 343 Ark. 507, 513 (2001)

(“[A]n implied-in-law contract is not even a contract at all, but an obligation imposed by

law to do justice even though no promise was ever made or intended.”) (emphasis added)

(citing Calamari & Perillo, Contracts § 1–12 (3d ed.1987)). Unjust enrichment occurs

when the plaintiff confers a benefit on the defendant, the benefit is known to the defendant,

and retention of that benefit by the defendant under those circumstances is inequitable.

Mohiuddin v. Doctors Billing & Mgmt. Solutions, 196 Md. App. 439, 449 (2010). The

benefit need not be conferred affirmatively, but may be conferred “by reason of an

infringement of another person’s interest or of loss suffered by the other.” Berry & Gould

P.A. v. Berry, 360 Md. 142, 151 (2000) (citation omitted). The benefit and the damages

must be pled with sufficient specificity, not as bald assertions or conclusory statements.

                                             14
Mohiuddin, 196 Md. App. at 450. And “the classic measurement of unjust

enrichment damages is the gain to the defendant, not the loss by the plaintiff,” Mogavero

v. Silverstein, 142 Md. App. 259, 276 (2002) (cleaned up), and therein lies the practical

rub.

       In both his original and amended Complaint, Father alleged that Husband took over

responsibility for paying the household bills and maintaining the insurance policy through

his Army benefits, through at least July 2013. Father specified the dates on which he

received the voicemail from Husband affirming that Husband was handling the life

insurance payments, and the copy of Husband’s paystub showing Husband’s payroll

deductions. Husband doesn’t dispute that he maintained Mother’s life insurance policy

while in the Army, or that he stopped making the life insurance premium payments after

he left the military. And Father alleges that Husband and Mother stopped paying the policy

premiums “in order that they could avoid the expense and keep the money for themselves

and their children.”

       Taking the facts alleged as true, Father has stated a claim for unjust enrichment.

First, he alleges that Husband took a benefit from Child by pocketing the premium

payments. Second, he alleges that Husband was aware that keeping the premiums deprived

Child of the benefits of the policy. And third, he alleges that Husband and Mother took this

benefit for an inequitable reason: to keep the money for themselves. This was enough to

get past a threshold challenge, and we reverse the circuit court’s decision to dismiss the

amended complaint as to Count VI. This, though, is where the victory may not be worth a

lot: there is no allegation that Husband or Mother (or anyone else) received the benefit that

                                             15
the policy would have paid upon Mother’s death, i.e., the policy proceeds. Most likely,

Father’s recovery in unjust enrichment would take the form of the benefit Husband and

Mother did receive, the unpaid policy premiums from the time Husband stopped paying

them until Mother’s death, although the ultimate answer will await the outcome on remand.

                                         JUDGMENT OF THE CIRCUIT COURT
                                         FOR FREDERICK COUNTY AFFIRMED
                                         IN  PART,  VACATED     IN  PART,
                                         REVERSED IN PART, AND REMANDED
                                         FOR    FURTHER      PROCEEDINGS
                                         CONSISTENT WITH THIS OPINION.
                                         COSTS TO BE ASSESSED 33% TO
                                         APPELLANT AND 67% TO APPELLEE.




                                           16
