Wayne Atkinson v. Wal-Mart Stores, Inc. , 349 F. App'x 426 ( 2009 )

[DO NOT PUBLISH]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-
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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
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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.
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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
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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.
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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
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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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