                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 16, 2009
                                 No. 09-12973                THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                    D. C. Docket No. 08-00691-CV-T-30-TBM

WAYNE ATKINSON,
as the executor of the estate of Rita Atkinson,
RICHARD ARMATROUT,
as the executor of the estate of Karen Armatrout,


                                                            Plaintiffs-Appellants,

                                      versus

WAL-MART STORES, INC.,
WAL-MART STORES, INC. CORPORATION GRANTOR TRUST,


                                                           Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                               (October 16, 2009)

Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      In July 2008, the Florida Legislature amended § 627.404 of the Florida

Statutes to provide that an insured or his or her personal representative may sue for

benefits paid under an insurance contract procured by a party lacking an insurable

interest in the insured. Fla Stat. § 627.404(4) (2008). The prior version of this

statute contained no such cause of action. See Id. § 627.404 (1991). The question

presented in this case is whether § 627.404(4) is retroactively applicable and thus

confers standing upon the personal representative of an insured. Because this

involves an interpretation of a Florida statute, we certify the controlling question to

the Florida Supreme Court.

      I. Background

      In 1993, Wal-Mart adopted a corporate owned life insurance (“COLI”)

program through which the company would purchase life insurance policies for its

employees.1 Wal-Mart funded the policies, at no cost to the employees. The

policies provided benefits of $5,000 to $10,000 to the decedents’ beneficiaries,

with the remainder of the policy amount paid to Wal-Mart. By 2000, as the result

of new regulations, Wal-Mart had discontinued the COLI program.

      Rita Atkinson and Karen Armatrout worked as rank-and-file Wal-Mart

employees paid hourly wages. Neither opted out of the COLI program and Wal-



      1
          Employees were notified that they could opt out of the program.

                                                2
Mart obtained life insurance policies upon both. Atkinson died in 1996. After

payment under her policy to her estate, Wal-Mart received the remainder of the

benefits, totaling $66,048.70. Armatrout died in 1997 and Wal-Mart received

$72,820.30 in benefits under her policy.

      On March 5, 2008, Wayne Atkinson and Richard Armatrout, as executors

for Rita’s and Karen’s estates, respectively, filed a class action lawsuit against

Wal-Mart in state court. The two-count complaint sought (1) a declaratory

judgment and imposition of a constructive trust over the benefits paid because

Wal-Mart had no insurable interest in these employees, and (2) disgorgement of

benefits based on unjust enrichment. Wal-Mart removed the action to federal court

on April 11. Atkinson thereafter filed an amended request for class certification, in

which Armatrout withdrew his request for appointment as a class representative.

      The district court denied certification and dismissed the complaint for lack

of standing. Applying the law in effect in 2000, the court found that there was no

Florida statute or case law identifying a cause of action permitting a personal

representative of a deceased employee to maintain a cause of action to recover

benefits received by an employer under a COLI program. Although the court

recognized that the Florida Legislature had amended the statute to create a cause of

action, the district court found that there was no evidence the statute was to be



                                           3
applied retroactively. The court, therefore, dismissed the complaint sua sponte.

This appeal followed.

       II. Standard of Review

       Federal courts are empowered under Article III to adjudicate only “cases” or

“controversies.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1223

(11th Cir. 2004). In order for there to be a “case” or “controversy” that a federal

court can adjudicate, a plaintiff must make a sufficient showing of an injury that

the court’s decision-making can redress. Id.

       Standing is “a threshold jurisdictional question which must be addressed

prior to and independent of the merits of a party’s claims.” Bochese v. Town of

Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (citations omitted).2 Standing

under Article III has three elements: (1) “the plaintiff must have suffered an injury

in fact-an invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical;” (2)

“there must be a causal connection between the injury and the conduct complained

of-the injury has to be fairly traceable to the challenged action of the defendant,

and not the result of the independent action of some third party not before the

court;” and (3) “it must be likely, as opposed to merely speculative, that the injury


       2
           Because standing is a threshold inquiry, we need not address the issues of class
certification at this time.

                                                 4
will be redressed by a favorable decision.” Florida Family Policy Council v.

Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992))

(alterations, citations, and quotation marks omitted); see also Pittman v. Cole, 267

F.3d 1269, 1282 (11th Cir. 2001) (setting forth the same three elements). The

burden is on the party seeking to invoke jurisdiction to produce facts sufficient to

support its standing. Pittman, 267 F.3d at 1282. “We review de novo whether a

plaintiff has standing to bring suit in federal court.” Id. “[A] party’s standing to

sue is generally measured at the time of the complaint. . . .” Johnson v. Bd. of

Regents, 263 F.3d 1234, 1267 (11th Cir. 2001) ); Lujan, 504 U.S. at 570 n. 5, 112

S.Ct. 2130 (“[S]tanding is to be determined as of the commencement of suit . . . .”).

      III. Analysis

      Atkinson argues that Florida law provided for a cause of action and the

amended statute merely clarified existing law. He notes that Florida public policy

has required that the individual contracting for insurance have an “insurable

interest” in the life of the person insured and, because Rita was an hourly, rank-

and-file employee, Wal-Mart lacked any insurable interest.

      Wal-Mart responds that the amendments to § 627.404 were substantial

changes that created a cause of action, where before there was none. It asserts that



                                           5
the district court correctly found that the amendments were not retroactively

applicable.3

       Under the current version of § 627.404(4), “[i]f the beneficiary, assignee, or

other payee under any insurance contract procured by a person not having an

insurable interest in the insured at the time such contract was made receives from

the insurer any benefits thereunder by reason of the death, injury, or disability of

the insured, the insured or his or her personal representative or other lawfully

acting agent may maintain an action to recover such benefits from the person

receiving them.” Fla. Stat. § 627.404(4) (2008). “Insurable interest” is defined,

inter alia, as “[a]n individual has an insurable interest in the life, body, and health

of another person if such individual has an expectation of a substantial pecuniary

advantage through the continued life, health, and safety of that other person and

consequent substantial pecuniary loss by reason of the death, injury, or disability of

that other person.” Id. § 627.404(2)(b)(3).

       “Generally, unless the Legislature clearly expresses its intention to the

contrary, substantive statutes are presumed to apply prospectively while remedial

statutes are presumed to apply retrospectively.” See Promontory Enter., Inc. v. S.



       3
          Wal-Mart also contends that Atkinson did not challenge the district court’s conclusion
about retroactive applicability. We disagree. Atkinson’s claim that the statute merely clarified
existing law implicitly disputes the court’s conclusion.

                                                6
Eng’g & Contracting, Inc., 864 So.2d 479, 483 (Fla. Dist. Ct. App. 2004). Here,

when the legislature enacted the amendments to § 627.404, it indicated that it was

doing so to clarify and conform with existing Florida law. See Florida Senate Bill

Analysis, SB 648 (Mar. 11, 2008); see also Life Ins. Co. of Ga. v. Lopez, 443

So.2d 947 (Fla. 1983) (explaining in dicta that Florida law prohibits issuance of an

insurance policy to a person who has no insurable interest in the insured).

         Thus, the question is whether § 627.404 was designed to be retroactively

applicable as a mere clarification of the law, or whether it made substantive

changes and created a new cause of action. Because this case presents an

interpretation of a Florida statute, we certify the issue to the Florida Supreme

Court.

         IV. Question Certified

         We respectfully certify to the Florida Supreme Court the following question:

         Whether the amendments to Fla. Stat. § 627.404 apply retroactively and

enable the representative of an insured to sue for COLI benefits received by a party

lacking an insurable interest or whether the amendments create a new cause of

action such that a family would lack standing to sue for benefits obtained prior to

the enactment of the amendments.

         In certifying this question, we do not intend to restrict the issues considered



                                             7
by the state court and note that discretion to examine this issue and other relevant

issues lies with the Florida Supreme Court. Stevens v. Battelle Memorial Institute,

488 F.3d 896, 904 (11th Cir. 2007); Miller v. Scottsdale Ins. Co., 410 F.3d 678,

682 (11th Cir. 2005) (“Our phrasing of the certified question is merely suggestive

and does not in any way restrict the scope of the inquiry by the Supreme Court of

Florida.”). We also recognize that “latitude extends to the Supreme Court’s

restatement of the issue or issues and the manner in which the answers are given.”

Swire Pacific Holdings Inc. v. Zurich Ins. Co., 284 F.3d 1228, 1234 (11th Cir.

2002) (citation omitted).

      QUESTION CERTIFIED.




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