PHL Variable Insurance v. P. Bowie 2008 Irrevocable Trust Ex Rel. Baldi

United States Court of Appeals
For the First Circuit
No. 12-2243
PHL VARIABLE INSURANCE COMPANY,
Plaintiff, Appellee,
v.
THE P. BOWIE 2008 IRREVOCABLE TRUST,
by and through its trustee, Louis E. Baldi,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Jesus E. Cuza Abdala, with whom Ina M. Berlingeri Vincenty and
Holland & Knight LLP were on brief, for appellant.
Jessica Lynne Wilson, with whom Thomas F. A. Hetherington,
Jarrett E. Ganer, Edison, McDowell & Hetherington LLP, Stephen M.
Prignano, Raymond M. Ripple, and Edwards Wildman Palmer LLP were on
brief, for appellee.
May 13, 2013
LYNCH, Chief Judge. This is an appeal from a grant of
summary judgment in favor of plaintiff PHL Variable Insurance
Company ("PHL") in its equitable action for rescission of a life
insurance policy and special damages incident to the rescission of
that policy. See PHL Variable Ins. Co. v. P. Bowie 2008
Irrevocable Trust, 889 F. Supp. 2d 275 (D.R.I. 2012). The district
court found that the defendant, The P. Bowie 2008 Irrevocable Trust
("the Trust"), by and through its trustee, Louis E. Baldi, had made
false representations to induce PHL to issue the policy, and that
this fraud caused PHL damages that would not be fully compensated
by rescission alone. The court allowed PHL to retain the policy
premium paid by the Trust in order to offset PHL's losses and to
return the parties to the status quo ante.
The Trust argues on appeal that the district court erred,
under Rhode Island law, in allowing PHL to both rescind the policy
and retain the premium. It also argues that the question of
whether the Trust made fraudulent misrepresentations was legally
irrelevant to the rescission action, and, in any event, that the
Trust did not commit fraud. The Trust asks this court to reverse
the grant of summary judgment for PHL and to enter judgment for the
Trust.
The court committed no errors of law, did not err in
finding that the plaintiff was a victim of a fraudulent insurance
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scheme, and appropriately exercised its equity powers. Under Rhode
Island principles of equity, we affirm.
I.
On February 28, 2008, an insurance broker, Richard
Rainone, submitted an application from Peter Bowie to PHL for a
life insurance policy on Bowie's life. Bowie's application
represented that he was a self-employed real estate investor with
a net worth of $7.5 million and an earned income of $250,000 per
year. He sought to take out a $5 million policy. Rainone's letter
accompanying the application stated that, upon a formal offer of a
policy from PHL, the policy would be re-issued into a trust.
PHL then began its underwriting investigation, which
included a third-party inspection by a vendor, Examination
Management Services, Inc. ("EMSI"). EMSI contacted Bowie on March
14, 2008. Bowie told the EMSI inspector that his earned income was
$250,000 per year and that his net worth was $7.35 million. He
also stated that a trust would be the beneficiary of the policy.
Based on the available information, PHL offered Bowie a $5 million
policy on April 23, 2008.
On April 28, 2008, Rainone submitted a revised
application that listed the Trust as the owner and sole beneficiary
of the proposed policy.1 Baldi, an attorney, acted for the Trust.
1
The named beneficiary of the Trust was Bowie's wife, Elaine
Bowie.
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The second application repeated the same information about Bowie's
employment, net worth, and income. The application also answered
"no" to all of the following questions:
Will any of the first year or subsequent
premiums for the policy be borrowed by the
proposed owner or proposed insured or by any
other individual, trust, partnership,
corporation or similar related entity?
Will the owner, now or in the future pay
premiums funded by an individual and/or entity
other than the proposed insured?
Is the policy being purchased in connection
with any formal or informal program under
which the proposed owner or proposed insured
have been advised of the opportunity to
transfer the policy to a third party within
five years of its issuance?
Does the proposed insured or proposed owner
have any understanding or agreement providing
for a party, other than the owner, to obtain
any legal or equitable right, title or
interest in the policy or entity owning the
policy?
Attorney Baldi (on behalf of the Trust), the broker
Rainone, and Bowie all signed the April 28 application. Baldi
signed under an attestation stating: "I have reviewed this
application, and the statements made herein are those of the
proposed insured and all such statements made by the proposed
insured . . . are full, complete, and true to the best knowledge
and belief of the undersigned and have been correctly recorded."
Additionally, all three individuals signed a separate Statement of
Client Intent, which also attested that the premium payments would
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not be borrowed and would be paid from Bowie's current income
and/or his own cash and equivalents. The Statement represented
that the purpose of the policy was estate planning and that there
was no intent to transfer the policy.
On May 5, 2008, PHL approved a $5 million policy ("the
Policy") on Bowie's life, pursuant to the April 28 application. On
May 14, 2008, Bowie and Baldi signed a Policy Acceptance Form,
which stated that "[t]he Insured(s) declares that the statements
made in the application remain full, complete, and true as of this
date." Also on May 14, Baldi wrote a check from his client account
to PHL for the Policy premium, in the amount of $192,000. On May
15, 2008, PHL paid Rainone a commission of $172,365.
As it turned out, almost all of the representations made
to PHL were patently untrue. Notably, Bowie, Rainone, and
Rainone's business partner, Christopher Vianello, all invoked their
Fifth Amendment privilege not to testify in this case. Nonetheless,
discovery showed the following facts.
Bowie was not a wealthy real estate investor, but rather
a retired city employee, used car salesman, and blackjack dealer.
He could not afford to pay the Policy premium on his own. Instead,
the plan to pay the premium had originated with brokers Rainone and
Vianello, who began negotiating with Imperial Premium Finance, LLC2
2
This company also appears in the record as Imperial Finance
and Trading and as Imperial Holdings, Inc.
-5-
("Imperial") even before filling out the original February 28
application. Imperial is a company whose business model consists
of lending money to pay for life insurance policy premiums and,
when borrowers default on those loans, taking possession of the
policies as collateral.3 This arrangement allows Imperial to
attempt to avoid the longstanding legal prohibition on holding a
life insurance policy on a life in which the owner has no insurable
interest.4 See Warnock v. Davis, 104 U.S. 775, 779 (1881).
Here, the plan was for Imperial to finance the premiums
on Bowie's Policy and, in return, take a security interest in the
Policy. This plan was directly contrary to the multiple
representations in the application documents that Bowie himself
would pay the premiums and that there was no plan for any third
party to obtain an interest in the Policy.
The Trust, by and through Baldi, was the mechanism for
accomplishing this insurance fraud. Before being deposed in this
lawsuit, Baldi had never met or even spoken to Bowie. Baldi came
3
The 2011 prospectus that Imperial filed with the Securities
and Exchange Commission demonstrates that default and foreclosure
are the overwhelmingly likely outcomes of an Imperial loan. Of its
loans that matured between January and September of 2010, 97% were
not repaid in cash.
4
Some states, including Rhode Island, have identified
practices like Imperial's as fraudulent. See R.I. Gen. Laws § 27-
72-2(9)(i)(A)(X), -2(26). While Rhode Island did not enact its
statute against such practices until after the conduct alleged in
this case, the statute is instructive in lending context to the
transactions.
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to be trustee of the Trust at the request of Rainone and Vianello.
When he spoke with Rainone and Vianello about the Policy, Baldi did
not inquire as to the purpose of the Trust, his responsibilities as
trustee, the basis for any of the representations in the April 28
application, what the Policy premiums would be, or how the premiums
would be paid. Baldi did not see Bowie sign the application.
Baldi testified that he did not know where the money for
the May 14, 2008 premium check from his lawyer's account had come
from -- that "somebody" must have deposited it into his account.
In fact, Baldi's bank records show that Vianello had endorsed over
to Baldi a cashier's check payable to Vianello for the entire
$192,000.
On May 26, 2008 -- twelve days after Baldi and Bowie had
executed the Policy Acceptance Form -- Baldi, on behalf of the
Trust, entered a loan agreement with Imperial. The agreement
provided that Imperial would loan $189,000 to the Trust, at a
floating interest rate starting at more than 12 percent, for the
express purpose of paying premiums on the Policy. In addition,
Imperial charged a $19,400 origination fee and a $48,164.83 "lender
protection insurance charge." The loan was set to mature on July
26, 2010. In short, the terms of the loan virtually dictated that
it could not be paid back. The Policy served as collateral in the
event of default.
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On June 13, 2008, Imperial deposited $189,050 into
Baldi's account, and on June 17, Baldi wrote a check to Vianello
for $186,550, "to repay for the premium." Baldi testified that he
wrote this check at Vianello's direction. He never inquired as to
why he should make out the check to Vianello or whether the Trust
instrument authorized Vianello to direct Baldi to make such
payments.
Baldi never notified PHL that the representations in the
application regarding the identity of the premium payor were no
longer accurate; in fact, he claimed to have no awareness that the
Policy had any restrictions on premium financing. He also never
notified PHL of the assignment of an interest in the Policy to
Imperial, although the Policy included a requirement for such
notice.
On August 19, 2008, Baldi, on behalf of the Trust, signed
an amendment to the Trust instrument that appointed an "Independent
Professional Trustee" ("IPT") to serve as co-trustee with Baldi.
Baldi claimed that he could not remember whether it was PHL or
Imperial that had required the appointment of a co-trustee. The
amendment provided that in the event of default on the Imperial
loan, the IPT was required to assign the Policy to Imperial. An
Amended and Restated Trust Agreement, dated October 6, 2008 and
signed by Bowie, Baldi, and the IPT, added a requirement that, if
the Policy were rescinded and the premiums refunded to the Trust
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while any Policy loan was outstanding, the IPT would deliver the
refund to Imperial.5
On August 20, 2008, Rainone signed an agreement with
Imperial to pay the company a percentage of his commission from the
Bowie Policy, in the amount of $67,025.6 Rainone entered this
agreement despite the fact that he had signed a Producer's Report
for PHL, submitted with the Bowie application, stating that "no
person other than the undersigned shall profit by any commission on
insurance issued on this application."
Early in 2010, PHL attempted to contact the Trust, Bowie,
and Rainone regarding the information in the application. It
received no response; meanwhile, its own investigation indicated
that the information had been falsified. PHL then filed the
instant suit.
II.
PHL filed its complaint in the U.S. District Court for
Rhode Island on February 19, 2010, invoking the court's diversity
jurisdiction. PHL sought a declaratory judgment that the Policy
was null, void, and rescinded ab initio due to the Trust's
fraudulent misrepresentations. It also sought to retain the
5
Significantly, the Trust's litigation expenses in this
action have been paid with another loan from Imperial.
6
The agreement calculated this amount based on 35% of a
"Target Commission" of $191,500, which was more than the commission
that Rainone actually received.
-9-
premium paid by the Trust as an "offset" against the damages it had
suffered in connection with the Policy, including the costs of
"underwriting and issuance of the Policy, payments of commissions
and fees in connection with the issuance of the Policy,
administration and servicing of the Policy, investigation of the
misrepresentations and concealments [alleged in the complaint], and
commencement of this action to enforce its rights." PHL stated,
however, that it stood "ready, willing, and able to refund or
otherwise make payment of all or any portion of the premiums paid
for the Policy as directed by the Court in accordance with [PHL]'s
demand for rescission of the Policy." Accordingly, PHL "fully and
unconditionally tender[ed] the Policy's premiums to the Court's
registry." Finally, PHL sought costs and attorneys' fees.
On March 15, 2011, during discovery, the Trust sent a
letter to PHL stating that the Trust "agree[d] to rescind the
Policy" and "confirm[ing] the rescission of said Policy." The
Trust asserted that this agreement made the complaint moot and
demanded immediate return of the premiums, as purportedly required
by Rhode Island law. The parties continued with discovery, and in
June and July 2011, the parties filed cross-motions for summary
judgment.
After argument on the motions, the court issued a
Memorandum and Order on September 5, 2012, granting PHL's motion
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and denying the Trust's motion.7 PHL Variable, 889 F. Supp. 2d at
284. The court interpreted the Trust's letter of March 15, 2011,
as an agreement on the issue of rescission, id. at 278, and it
"declare[d] that the Policy is rescinded," id. at 279. The court
thus found that "the sole issue for the Court's consideration is
whether [PHL] is required by law to return the premiums or if the
Court, sitting in equity, may allow [PHL] to either retain the
premiums or award [PHL] special damages in the form of retention of
some or all of those premiums to offset the loss it alleges that it
suffered." Id. at 278.
The court noted that rescission is an equitable remedy
that seeks to "restore the parties . . . to the status quo -- that
is, to the respective positions they were in before [the contract
was formed], as if no contract existed." Id. at 279. The court
recognized that the general rule under Rhode Island law is that "an
insurance company which has been induced to issue a policy through
the fraud of the insured may, within a reasonable time after the
discovery of the fraud and during the lifetime of the insured,
return the consideration and rescind the contract." Id. at 280
(quoting Wells v. Great E. Cas. Co., 100 A. 395, 397 (R.I. 1917))
(internal quotation mark omitted). Importantly, the court also
explained that Rhode Island law is clear that there are exceptions
7
The order also disposed of certain other motions not
relevant to this appeal.
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to this principle, id., particularly considering that a court
sitting in equity has discretion to fashion relief that "tak[es]
into account special circumstances like a defendant's soiled
hands," id. at 281 (quoting Borden v. Paul Revere Life Ins. Co.,
935 F.2d 370, 377 (1st Cir. 1991)).
The court went on to find that the Trust had engaged in
fraudulent conduct. Id. at 281-83. While the court recognized
that PHL had not pled an independent fraud cause of action, it
determined that the fraud issue was pertinent to the question of
the appropriate remedy and analyzed the record evidence in light of
the elements of common law fraud. Id. at 281. The court found
that Baldi, on behalf of the Trust, became aware shortly after
signing the Policy documents that the statements in those documents
regarding the premium payor were false, and furthermore that
Baldi's conduct before he actually became so aware showed a
reckless disregard for the truth. Id. at 282. It also found that
Baldi's dealings with Imperial, Vianello, and PHL showed that Baldi
intended PHL to continue relying on the false representations.8
Id.
8
We need not decide whether PHL's underwriting process
demonstrated sufficient diligence, though the district court found
it did. PHL Variable, 889 F. Supp. 2d at 282-83. PHL did take
some steps, and even if it could have taken more, it is clear that
the district court's assessment of the equities and of the Trust's
soiled hands is correct on the undisputed facts.
-12-
The court held that this evidence, in sum, proved that
the trust had unclean hands in the contract transaction. Id. at
283. It concluded that the law would not "allow [the Trust] to
commit an intentional and calculated fraud upon [PHL] and walk away
unscathed while the innocent party bears the financial burden of
the fraud." Id. at 281.
The court thus ordered that PHL was entitled to retain
the $192,000 premium payment as special damages. Id. at 284. We
describe later the components of those damages. The court rejected
the Trust's argument that such an outcome violated Rhode Island's
election of remedies doctrine. Id. at 283-84; see LaFazia v. Howe,
575 A.2d 182, 184 (R.I. 1990). It emphasized that the ability to
award special damages is part of an equity court's discretion to
fashion relief that restores the status quo. PHL Variable, 889 F.
Supp. 2d at 284.
Final judgment entered on September 17, 2012, and the
Trust filed this timely appeal.
III.
We review a grant of summary judgment de novo, "drawing
all reasonable inferences in favor of the non-moving party while
ignoring 'conclusory allegations, improbable inferences, and
unsupported speculation.'" Sutliffe v. Epping Sch. Dist., 584 F.3d
314, 325 (1st Cir. 2009) (quoting Sullivan v. City of Springfield,
561 F.3d 7, 14 (1st Cir. 2009)). We may affirm on any basis
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apparent in the record. Id. On an appeal from cross-motions for
summary judgment, the standard is the same; we view each motion
separately and draw all reasonable inferences in favor of the
respective non-moving party. See OneBeacon Am. Ins. Co. v.
Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir.
2012).
The Trust makes two general classes of arguments on
appeal. The first concerns alleged errors of Rhode Island law in
the district court's decision to allow PHL to retain the premiums;
the second concerns alleged errors in the finding that the Trust
engaged in fraudulent conduct.9 We take each in turn.
A. Rhode Island Law on Retention of Premiums
The Trust's first argument centers on what the Trust
characterizes as Rhode Island's "tender back rule." According to
the Trust, a party who seeks rescission of a contract -- even when
that contract was procured by fraud which imposes losses -- is
always required to return the entire consideration received under
the contract to the other party, under all circumstances.
This argument is based on an erroneous reading of Rhode
Island law. The cases primarily relied upon by the Trust do not
stand for such a broad and inflexible proposition. Rather, a court
sitting in equity under Rhode Island law has the power to make
9
The Trust does not contest that part of the Memorandum and
Order declaring the Policy rescinded.
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whole a party who seeks rescission of a contract procured by fraud,
and that is exactly what the district court did.
In Wells v. Great Eastern Casualty Co., 100 A. 395, a
beneficiary of an insurance policy sued the insurer for policy
benefits, and one of the insurer's defenses was that it had
rescinded the contract before the death of the insured, based on
the insured's fraudulent misrepresentations. Id. at 395-96. At
the time of the suit, the insurer had already returned the policy
premiums. Id. at 396. It was in this context that the Rhode
Island Supreme Court stated that "upon the discovery of the false
and fraudulent nature of a material statement contained in [an
insurance] application . . . , the [insurer is] entitled to return
the premiums paid and rescind the contract of insurance" -- in
other words, it found that the insurer's actions were a valid
defense to a suit on the policy. Id. The court did not hold that
the insurer's actions were the only way to effect rescission.
Similarly, in Pelletier v. Phoenix Mutual Life Insurance
Co., 141 A. 79 (R.I. 1928), the Rhode Island Supreme Court stated
that an insured's release of a claim under an insurance policy "is
a bar to an action on [the released] claim," including when the
release was allegedly procured by fraud, so long as the release "is
not rescinded or avoided by a return or offer to return the money
or other valuable consideration given for it." Id. at 80. This
conclusion was based on the commonsense recognition that a
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plaintiff "cannot affirm the release as valid and operative so far
as it is for his benefit, and disaffirm that part which is
beneficial to the releasee." Id. While Pelletier's holding
recognizes that an "offer to return" consideration is generally
part of seeking rescission, it does not establish an ironclad rule.
Here, PHL at no time attempted to "affirm [the Policy] as
valid," id., and in fact, in its complaint, PHL stated that it
stood "ready, willing, and able to refund or otherwise make payment
of all or any portion of the premiums paid for the Policy as
directed by the Court." PHL "fully and unconditionally tender[ed]
the Policy's premiums to the Court's registry." Thus, to the
extent that Pelletier endorses a "tender back" requirement, PHL
undoubtedly fulfilled it.
The Trust's implication that PHL, during the pendency of
its lawsuit for rescission, had to hand over the premiums to the
Trust (the party that PHL alleged had conspired to defraud it in
the first place), rather than to the court, is not supported by any
cited authority. In fact, at least one Rhode Island case suggests
the opposite. Cf. Cruickshank v. Griswold, 104 A.2d 551, 552 (R.I.
1954) ("[A] bill in equity to obtain a rescission is not like an
action at law brought on the footing of a rescission previously
completed; rather, the foundation of the bill is that the
rescission is not complete and that the plaintiff asks the aid of
the court to make it so.").
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Moreover, the Trust's argument that the "tender back"
requirement flatly prohibited the court from using the Policy
premium to offset PHL's consequential damages runs contrary to
other settled rules of Rhode Island law. The Rhode Island courts
have held that a trial court sitting in equity has "discretion to
determine the appropriateness of, and to formulate, equitable
relief," and that this discretion "should be guided by 'basic
principles of equity and justice.'" Ruggieri v. City of E.
Providence, 593 A.2d 55, 57 (R.I. 1991) (quoting City of E.
Providence v. R.I. Hosp. Trust Nat'l Bank, 505 A.2d 1143, 1146
(R.I. 1986)).
One of these basic principles is that contract rescission
"seeks to create a situation the same as if no contract ever had
existed," Dooley v. Stillson, 128 A. 217, 218 (R.I. 1925), an
endeavor that may include allowing a party to recover costs it
would not have incurred but for the formation of the contract, see
Lummus Co. v. Commw. Oil Ref. Co., 280 F.2d 915, 927 (1st Cir.
1960) (describing "[t]he purpose of an action for rescission" as
"to permit the defrauded party to obtain restitution of the
benefits conferred by him," including "such special damages as are
necessary to make [the defrauded party] whole"); Tarpinian v.
Daily, No. 95-0104, 1997 WL 838150, at *3-4 (R.I. Super. Ct. Aug.
15, 1997). Another such principle is that parties should not gain
advantage from their own fraud. See Silva v. Merritt Chapman &
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Scott Corp., 156 A. 512, 514 (R.I. 1931). And yet another is that
"a court of equity, when its jurisdiction has been invoked for any
equitable purpose, will proceed to determine any other equities
existing between the parties which are connected with the main
subject of the suit [and] grant all relief necessary to an entire
adjustment of the litigated matters, provided they are authorized
by the pleadings." Sparne v. Altshuler, 90 A.2d 919, 923 (R.I.
1952).
Taken together, these equitable principles provide ample
support for the district court's decision to make PHL whole by
allowing it to retain the premium. PHL paid a commission to
Rainone of $172,365 that it would not have paid but for the
misrepresentations that led it to issue the Policy.10 Mere
rescission of the contract would not have compensated PHL for this
expense. While PHL apparently did not provide a precise accounting
of the other costs it incurred with respect to the Policy, see PHL
Variable, 889 F. Supp. 2d at 277 n.1, it was reasonable for the
district court to conclude that the costs alleged in PHL's
complaint -- including underwriting, administration, and servicing
of the Policy, as well as investigation into the misrepresentations
10
The Trust's argument that PHL could not recover this amount
as damages against the Trust is discussed below.
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in the application -- justified awarding PHL the remaining $19,635
from the premium, particularly in light of the Trust's fraud.11
The district court, following Rhode Island law, was
warranted in refusing to reward the Trust for its "unclean hands."
See, e.g., Cullen v. Tarini, 15 A.3d 968, 975, 979 (R.I. 2011)
(affirming lower court's finding that, in equitable suit regarding
real property, defendants had come to court with unclean hands and
this could have been a basis for rejecting their affirmative
defenses). The court could reasonably view the record as
demonstrating that the Trust did not pay the premium from its own
funds; indeed, it had no funds. The payment was funded by the loan
from Imperial meant to perpetrate the fraud. If PHL were ordered
to refund all or part of the premium to the Trust, the Trust would
be enriched with money that it never had in the first place. That
is, the Trust would not be placed back in its pre-contract
position, but in a better position, while PHL would be worse off
than it would have been had the contract never existed. Or,
whether or not the Trust would be put in a better position,12 as
11
The district court denied PHL's motion for attorneys' fees,
PHL Variable, 889 F. Supp. 2d at 284, and as such we interpret the
court's award of special damages to include expenses incurred by
PHL other than amounts paid to its attorneys in this action.
12
It is worth noting that, under the terms of the Amended and
Restated Trust Agreement, the Trust would be obligated to turn over
any premium refund to Imperial. If it did so, the refund would
result in an inequitable windfall to Imperial rather than to the
Trust itself. Imperial has already received a kickback of $67,025
from Rainone's commission, and the entire refunded premium would be
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between the Trust and PHL it was entirely equitable to impose the
costs of the fraud on the former. See Randall v. Loftsgaarden, 478
U.S. 647, 663 (1986) ("[I]t is more appropriate to give the
defrauded party the benefit even of windfalls than to let the
fraudulent party keep them." (quoting Janigan v. Taylor, 344 F.2d
781, 786 (1st Cir. 1965)) (internal quotation marks omitted)). The
flexibility of equity is designed to avoid unjust results.
Next, the Trust argues that the district court's decision
violated Rhode Island's election of remedies rule. Under Rhode
Island law, a party who asserts that a contract was procured by
fraud can choose either to seek rescission of the contract or to
affirm the contract and sue for damages. See LaFazia, 575 A.2d at
184. The Trust asserts that the district court's order, which both
granted rescission and awarded damages, ran afoul of this rule. In
its view, once PHL obtained rescission, it was barred from seeking
any damages.
Again, the Trust misstates the law. The election of
remedies rule simply does not apply in this case. PHL did not seek
damages on the Policy: that is, it did not affirm the contract and
then file an action on that contract, seeking contractually based
damages. Instead, PHL elected its equitable remedy of rescission,
more than the original principal amount of its loan to the Trust
($189,000). Imperial would thus realize a profit of up to $70,025
on the fraudulent transaction, while PHL would be worse off than it
began.
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and, consistent with the purposes of rescission, sought only such
damages as would return it to the position it would have been in
had it never entered the contract. Cf. FUD's, Inc. v. State, 727
A.2d 692, 696-97 (R.I. 1999) (citing Justice Story for the
proposition that money damages are available in cases at equity
when they are "incidental" to the equitable relief sought (quoting
2 Commentaries on Equity Jurisprudence § 794, at 1-2 & n.1 (12th
ed. 1877))); R.I. Dairy Queen, Inc. v. Burke, 187 A.2d 521, 526
(R.I. 1963) (same). The damages that the district court awarded in
this case were for expenses incidental to the rescinded contract,
and reimbursement for those expenses was necessary to craft an
equitable remedy that would make PHL whole.
Finally, the Trust argues that the district court's
decision was contrary to Rhode Island law holding that a party who
has an adequate remedy at law cannot seek relief in equity. See
Kocon v. Cordeiro, 200 A.2d 708, 710 (R.I. 1964). The Trust
alleges that PHL had an adequate remedy at law because it could
have sued Rainone to recover the commission it paid him. However,
Rhode Island law also provides that, in order to defeat equity
jurisdiction, the remedy at law must be "as certain, prompt,
complete and efficient as can be granted by a chancellor." Id.The evidence does not support a conclusion that any alleged remedy
at law would meet this standard.
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First, PHL was clearly entitled to invoke the court's
equity jurisdiction by seeking rescission of the Policy: no award
of damages against any party involved in procuring the Policy would
have adequately compensated PHL for the prospect of having to pay
a death benefit of $5 million. Once PHL was properly before the
court on its claim for rescission, the court had authority to
"proceed to determine any other equities existing between the
parties which are connected with the main subject of the suit,"
Sparne, 90 A.2d at 923 -- including the special damages associated
with the Trust's role in the fraud.
Further, the Trust has not put forth any evidence to show
that PHL's supposed remedy at law against Rainone is at all
"certain" or "complete." PHL has alleged that Rainone is judgment-
proof, and the Trust has not argued to the contrary. See Thew
Shovel Co. v. McCormick, 166 A. 354, 355 (R.I. 1933) (holding that
claim against insolvent estate would be "neither a complete nor an
adequate remedy" at law). Additionally, if the Trust believed that
Rainone – or Bowie, or Vianello, or Imperial -- was the party
liable to PHL for the company's losses, the Trust could have
impleaded any one or more of those parties in this action.
B. Fraud
The Trust first argues that the issue of fraud was
entirely irrelevant once the Trust agreed to rescission, since, on
the Trust's view, return of the premium should have been automatic
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upon rescission regardless of other circumstances. Given our
determination that the Trust misconstrues Rhode Island rescission
law, we likewise reject this argument.
The Trust then argues that the uncontested record
evidence was insufficient to find that the Trust engaged in
fraudulent conduct. The Trust's argument fails. We need not find,
as the district court did, that the Trust's conduct met the
elements of common law fraud, see PHL Variable, 889 F. Supp. 2d at
281-83, since PHL did not plead a claim of fraud. Rather, we
conclude that the uncontested evidence showed that there was a
conspiracy, of which the Trust was an integral part, to deceive PHL
into issuing a policy based on false pretenses, and that this
evidence of the Trust's unclean hands justified the equitable award
of special damages to PHL.
The Trust asserts that the only representation Baldi made
to PHL on behalf of the Trust was that the statements in the April
28 application were those of the proposed insured and that the
statements were true to Baldi's "best knowledge and belief." Since
Baldi did not know when he signed the application that the
statements were false, the Trust argues, he could not have made a
fraudulent misrepresentation.
This argument is disingenuous at best. First, as he
admitted at his deposition, Baldi had never met or spoken to Peter
Bowie at the time he signed the application, and Baldi did not see
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Bowie sign the application. He thus had no basis for believing
that the statements made in the application were in fact those of
the proposed insured, as he attested with his signature. Baldi
also admitted that he made no inquiries as to the source or truth
of the representations in the application, so he could not have had
any "knowledge or belief" as to whether or not those
representations were "full, complete, and true." See Transitron
Elec. Corp. v. Hughes Aircraft Co., 649 F.2d 871, 875 n.6 (1st Cir.
1981) (noting that "[o]rdinary fraud embraces a material
misrepresentation in which the maker has no basis for belief, as
well as that which he knows to be false" (emphasis added)).
Finally, no later than May 26, 2008, when he signed the loan
agreement with Imperial, Baldi knew that Bowie was not the one
paying the Policy premiums, as both the application and the
Statement of Client Intent had attested. Yet Baldi made no attempt
to correct this known misrepresentation. Instead, he participated
in the scheme to have Imperial secretly take an interest in the
Policy, while keeping himself as uninformed as possible about the
transactions.
The Trust also argues that PHL relied only on the earlier
February 28 application, not signed by the Trust, in conducting its
underwriting, and thus that any representations made by the Trust
were irrelevant to PHL's damages. While it is true that PHL began
its underwriting on the earlier application, the April 28
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application repeated all of the same statements on which PHL had
based its underwriting -- including Bowie's career, income, and net
worth. By signing that application on behalf of the Trust, Baldi
averred that all of that information was true to the best of his
knowledge. The Policy Acceptance Form, which Bowie also signed on
behalf of the Trust, specifically recognizes the April 28
application as the operative one for the Policy: the form states
that "[t]here is no coverage under application #OL4250.1 dated
02/29/2008." Further, in addition to the April 28 application,
Baldi signed the Statement of Client Intent and the Policy
Acceptance Form; the former document included additional assurances
that Bowie would pay the premiums, and the latter confirmed that
the representations in the application continued to be true.
The Trust's argument attempts to avoid the conclusion,
inescapable from the record evidence, that Baldi, Bowie, Rainone,
and Imperial were part of a common fraudulent scheme that sought to
obtain for Imperial a life insurance contract that Imperial could
not have purchased on its own. The misrepresentations by all of
these parties, working in concert, led PHL to issue a policy on
false pretenses and to incur costs associated with that policy.
Given these findings, there was no error in the district
court's weighing of equities that led it to conclude that PHL was
entitled to retain the Policy premium as special damages. See PHL
Variable, 889 F. Supp. 2d at 282-83.
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IV.
The district court's grant of summary judgment in favor
of PHL, including its order allowing PHL to retain the Policy
premium, is affirmed.
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