OPINION & ORDER
Defendant Bankers Life and Casualty Company (“Bankers”), through its authorized agents, sold an individual retirement annuity to plaintiff Heather Johnson and her now-deceased husband. Plaintiff alleges that she and her husband purchased this annuity, which replaced an existing annuity purchased from another company,
Before the court is defendant’s motion to dismiss all of plaintiffs claims. (Dkt. # 25.) For the reasons that follow, the court finds (1) Johnson has standing pursuant to Article III to pursue her claims; (2) the complaint fails to allege a fiduciary relationship; (3) the complaint alleges a misrepresentation with sufficient specificity to form the basis of negligent and intentional misrepresentation claims and a civil theft claim; and (4) the complaint fails to allege an enterprise separate from defendant to plead a WOCCA claim. Accordingly, the court will grant defendant’s motion to dismiss plaintiffs breach of fiduciary duty and WOCCA claims and deny it in all other respects.
ALLEGATIONS OF FACT
In April 2005, Heather and Gary Johnson sold their primary residence and purchased an annuity from Security Benefit Life Insurance Company in the amount of approximately $144,000. Sometime after that, the Johnsons were contacted by one of Bankers’ agents, Craig Chapp, asking them to meet with him to discuss an annuity his company was offering to senior citizens that would protect certain assets during retirement.
In November or December 2005, the Johnsons met with Chapp at their condominium. During that meeting, they informed Chapp of certain health issues Mr. Johnson was experiencing. Chapp allegedly then advised the Johnsons that “they should take advantage of a new product offered by Bankers that would protect their assets even if Mr. Johnson had to enter into a nursing home.” (Am. Compl. (dkt. # 22) ¶ 10.) The Amended complaint further alleges that
Chapp fraudulently represented that the annuity included a rider entitled ‘annuity income preservation amendment rider,’ which, Mr. Chapp represented, would protect and/or exclude the assets and/or income of the deferred annuities from Medicaid eligibility and spend down provisions/requirements, thereby allowing them to take full advantage of the Medicaid and/or other governmental aid and benefits for which they were to be eligible without having to use the assets of the annuity to pay expenses otherwise covered by Medicaid.
(Id. at ¶ 11.)
Some two years after their meeting with Chapp, the Johnsons decided to liquidate their previously-purchased annuity, resulting in significant penalties, and purchase the Bankers’ annuity in the reduced amount of $132,683.72. This annuity was issued in Mr. Johnson’s name with Mrs.
On page nine of the twenty page annuity document, which is attached to the complaint, appears the following language:
TAX AND LEGAL CONSEQUENCES
This rider may have tax consequences or affect eligibility for Medicaid or other government benefits. Consult a tax advisor or attorney to assess the impact of this ridér on Your specific situation.
(Id., Ex. A (dkt. # 22-1) p. 9.)
Mr. Johnson . passed away in August 2008. Following his death, Heather Johnson “learned that the representations made by Mr. Chapp concerning the annuity income preservation amendment rider were false and that the annuity would not protect and/or exclude the assets and/or income of the deferred annuities from Medicaid eligibility and spend down provisions/requirements.” (Id. at ¶ 15.)
Heather Johnson seeks to represent a class of Wisconsin residents who, based upon representations by Chapp or another Bankers’ agent, purchased Bankers annuities that include the annuity income preservation amendment rider. Plaintiff alleges the following causes of action: (1) breach of fiduciary duty; (2) negligent misrepresentation; (3) intentional misrepresentation; (4) civil theft under Wis. Stat. §§ 895.446 and 943.20; and (5) violation of WOCCA.
PRELIMINARY MATTER
Defendant also moves for submission of material outside of the pleadings, attaching two documents to a declaration of defendant’s counsel: (1) a purported check from Security Benefit Life Insurance to Bankers Life and Casualty, dated January .18, 2008; and (2) a purported check from Bankers Life and Casualty Company to Heather Johnson, dated September 22, 2008. (Def.’s Mot. to Submit Material Outside of Pleadings (dkt. # 27); Declaration of Adam J. Kaiser, Exs. A, B (dkt. ## 28-1, 28-2).) In addition to plaintiffs complaint, the court may consider documents to which the complaint had referred, which are “concededly authentic” and “central to” the plaintiffs claim. Decker v. Deere & Co.,
In her amended complaint described above, plaintiff alleges that she and her husband liquidated their previously-purchased annuity and purchased the Bankers’ annuity in the amount of
As for the second check — the one issued by Bankers to plaintiff — the complaint does not allege that defendant issued Johnson a check or otherwise refer to payment under the policy. More importantly, the issuance of the check is not “central to” plaintiffs claims, which concern alleged misrepresentations and at the point of sale; nor is the check even material to the present motion to dismiss. The court will, therefore, grant defendant’s motion to consider the check from Security Benefit to Bankers (dkt. # 28-1), but deny defendant’s motion to submit the check paid by Bankers to Heather Johnson (dkt. # 28-2).
OPINION
Bankers moves to dismiss this claim, arguing that (1) Johnson as a third-party beneficiary lacks standing to pursue the present action; (2) plaintiffs breach of fiduciary duty claim fails as a matter of law because Bankers has no independent duty to potential purchasers and was not in a position of trust because of the disclaimer described above; (3) plaintiffs breach of fiduciary duty claim is barred by the statute of limitations; (4) the negligent and intentional misrepresentation claims and civil theft claim all fail because they are premised on a representation about the law and/or a future event; (5) plaintiffs misrepresentation and civil theft claims fail as a matter of law because she cannot establish reasonable reliance due to the presence of the so-called “disclaimer” in the policy; and (6) plaintiff fails to state a WOCCA claim for several reasons, most notably because the defendant is the same entity as the alleged “enterprise.” The court will review each in turn, starting, as it must, with jurisdiction, including defendant’s challenge to this court’s subject matter jurisdiction.
I. Jurisdiction
As an preliminary matter, this court appears to have jurisdiction over the putative class action pursuant to the Class Action Fairness Act of 2005 (“CAFA”) 28 U.S.C. § 1332(d). First, the complaint and notice of removal contain allegations sufficient to demonstrate that there is complete diversity, thus meeting the minimal diversity requirement of CAFA. See 28 U.S.C. § 1332(d)(2)(A) (providing diversity under CAFA is met if “any member of a class of plaintiffs is a citizen of a state different from any defendant”).
This brings the court to Bankers’ motion to dismiss all claims because plaintiff Heather Johnson was not a party to the contract between Bankers and her deceased husband and, therefore, lacks standing to proceed, depriving this court of jurisdiction over the dispute. (Def.’s Br. (dkt. #26) 18.) To establish standing, a plaintiff must have:
(1) 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) a causal connection between the injury and the conduct complained of, that is, the injury is fairly traceable to the challenged action of the defendant, not the result of the ‘independent action of some third party not before the court’; and (3) a favorable decision likely will redress the injury.
O’Sullivan v. City of Chi.,
Bankers argues that Johnson lacks standing as a third-party beneficiary to pursue her fraud claims. The cases cited by defendant in support, however, are easily distinguishable because the plaintiffs in these cases were not privy to the alleged misrepresentations and/or did not take part in the purchase decision. See Prater v. Wackenhut Corrections Corp., No. 01-50792,
On the facts here, Bankers’ argument is nothing more than a red herring. Plaintiff does not premise her standing on her status as a third-party beneficiary. Rather, the complaint alleges (1) Heather Johnson was present for the agent’s sales pitch when the alleged misrepresentation occurred (Am. Compl. (dkt. # 22) ¶¶ 9-11); (2) she and her husband jointly decided to
II. Breach of Fiduciary Duty Claim
Next, Bankers argues that plaintiffs breach of fiduciary duty claim should be dismissed because Bankers owed no such duty to the Johnsons. The court agrees that plaintiffs’ allegations fail as a matter of law to establish any fiduciary relationship existed between the Johnsons and Bankers generally, or Chapp specifically. Accordingly, the court will grant defendant’s motion to dismiss this claim.
Wisconsin recognizes two types of fiduciary relationships: “(1) those specifically created by contract or a formal legal relationship such as principal and agent, attorney and client, trust and trustee, guardian and ward, and (2) those implied in law due to the factual situation surrounding the transactions and relationships of the parties to each other and to the questioned transactions.” Prod. Credit Ass’n of Lancaster v. Croft,
As to the first kind of fiduciary relationship, Bankers argues that “[ujnder Wisconsin law, insurers do not owe fiduciary duties to potential purchasers of their policies.” (Def.’s Opening Br. (dkt. # 26) 19 (citing Novotny v. Nat’l W. Life Ins. Co.,
Here, the alleged breach of fiduciary duty occurred during Chapp’s sales pitch to the Johnsons, which occurred over two
Plaintiff implicitly acknowledges that any fiduciary relationship must be premised on the second category — ones that arise because of “special circumstances.” The court could not find-nor did the parties direct the court to — any cases recognizing “special circumstances” that create a fiduciary relationship arising out of the purchase of an annuity or an insurance policy generally (as opposed to the annuity contracts themselves). This court, however, finds cases describing the fiduciary duties of financial investment brokers or banks analogous to the situation at issue here. Indeed, the Wisconsin Supreme Court has indicated that “persons offering financial investment services have a fiduciary duty to disclose to their clients all material information concerning the transaction involved.” Gries v. First Wis. Nat'l Bank of Milwaukee,
In more recent cases, however, the court appears to have walked back any broad application of a fiduciary relationship in the financial brokerage or banking arena. For example, in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck,
[a] fiduciary relationship does not arise merely because a broker offers advice and counsel upon which a customer has a right to place trust and confidence. The right to place trust and confidence in the reliability of representations involving commercial transactions already is protected by the law of misrepresentation.
Id. Similarly, in Croft, the Wisconsin Court of Appeals rejected the plaintiffs argument that a fiduciary relationship arose out of defendant bank’s “sophistication and superior knowledge in the marketplace regarding business, money and finances or [plaintiffs] reliance on the trust, honesty, integrity and representations of’ the bank.
While plaintiff nevertheless argues that such “special circumstances” are present here because of “the inequality of the plaintiffs position compared to the defendant’s agent, who made representation of fact allegedly based upon his superior knowledge of the annuity and its effect and purpose” (PL’s Opp’n (dkt. #29) 17), the case law described above forecloses a fiduciary relationship solely based on an alleged inequality of knowledge. Accordingly, the court will grant defendant’s motion
III. Misrepresentation Claims
Bankers also moves to dismiss plaintiffs negligent and intentional misrepresentation claims, as well as her civil theft claim, which is premised on the same alleged misrepresentation. First, defendant argues that the alleged misrepresentation at issue — that the annuity would protect the assets of the deferred annuities from affecting Medicaid eligibility and spend down restrictions — cannot form the basis of such a claim because it is either a legal opinion or an opinion about a future event (or both). Second, defendant argues that plaintiffs misrepresentation claim fails as a matter of law because the “disclaimer” in the policy undermines any claim of reasonable reliance. The court rejects both arguments.
A. Future Promise or Legal Opinion
Under Wisconsin law, “[a]n unfulfilled promise or statement of future events cannot provide the basis of a misrepresentation claim.” Badger Pharmacal, Inc. v. Colgate-Palmolive Co.,
Here, plaintiff alleges that Chapp misrepresented a key feature of the annuity offered for sale to the Johnsons: that the annuity and income derived from it would be excluded for purposes of determining Medicaid eligibility and spend down requirements. This alleged misrepresentation is not a promise or hope about future actions on the part of the promisor. E.g., Badger Pharmacal,
Bankers also argues that plaintiffs misrepresentations claims fail because any representation as to the annuity’s effect on Medicaid eligibility and spend down requirements constitutes a legal opinion, which also cannot form the basis of a misrepresentation claim. In Bentley v. Fayas,
Here, plaintiff alleges that the alleged misrepresentation was a key selling point of the annuity at issue and not an ancillary representation as part of a larger negotiation as was true in Bentley. See also Radford Co. v. Ruan Transport Corp., No. 08-Q-461,
Still, whether the alleged misrepresentation constitutes a legal opinion is a closer question, and one plaintiff wholly fails to address. Ultimately, it may be that statements made here regarding tax implications of an annuity rider are not actionable under Wisconsin law, but given the disparity in the parties’ relationship, the implicit allegation that Bankers and Chapp knew or should have known that the tax consequences were other than represented, and the allegation that these tax advantages were the key to Bankers’ marketing this annuity, the court will allow these claims to go forward for now.
B. Reasonable Reliance
Next, defendant points to the language in the policy (1) advising that “[t]his rider may have tax consequences or affect eligibility for Medicaid or other governmental benefits” and (2) suggesting that the purchaser “[c]onsult a tax advisor or attorney.” Accordingly to defendant, this language undermines as a matter of law any finding that plaintiffs reliance on Chapp’s alleged misrepresentation was reasonable or justified. In support, defendant relies on the Seventh Circuit explanation in Lauterbach,
As an initial observation, the language in the policy is not a true “disclaimer.” The language does not instruct the purchaser
While the language may certainly be received by some as a warning, whether this language undercuts a finding of reasonable reliance is ordinarily a question of fact. See Metavante Corp. v. Emigrant Sav. Bank,
IV. WOCCA Claim
Finally, while Bankers moves to dismiss plaintiffs WOCCA claim on several grounds, the court need only address one: plaintiffs failure to adequately allege an enterprise separate and distinct from the defendant. WOCCA, Wis. Stat. § 946.83(3), provides in pertinent part: “No person employed by, or associated with, any enterprise may conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity.” Putting aside the injury requirements, plaintiff acknowledges that to state a WOCCA violation, she “must allege that defendant (1) conducted (2) an enterprise (3) through a pattern (4) of racketeering activity.” (Pl.’s Opp’n (dkt. #24) 29.) See also Evers v. Calhoon,
It is well established that the “person” or defendant must be separate from the “enterprise.” See, e.g., State v. Judd,
The sole defendant in this action is Bankers, and therefore Bankers is necessarily the “person” alleged to have violated WOCCA. Plaintiff also alleges in her amended complaint that Bankers “is an ‘enterprise’ within the meaning of Wis. Stat. § 946.87(4).” (Am. Compl. (dkt. # 22) ¶ 49; see also Pl.’s Opp’n (dkt. # 29) 24 (citing to allegation that Bankers is the alleged “enterprise” under WOCCA).) Because the pleadings in the complaint as to this element of a WOCCA claim are not only insufficient, but affirmatively allege facts demonstrating that plaintiff cannot prevail as a matter of law, the court will grant defendant’s motion to dismiss this claim with prejudice.
ORDER
IT IS ORDERED that:
1) Defendant Bankers Life and Casualty Company’s motion to dismiss the amended complaint (dkt. # 25) is GRANTED as to plaintiffs breach of fiduciary duty claim (first cause of action) and WOCCA, Wis. Stat. § 946.83, claim (fifth cause of action) and DENIED in all other respects; and
2) Defendant’s motion for submission of material outside of pleadings (dkt. # 27) is GRANTED IN PART AND DENIED IN PART as provided in the above opinion.
Notes
. For the purposes of this motion, the court will construe all of plaintiff's factual allegations as true and draw all reasonable inferences in her favor. Santiago v. Walls,
. Defendant cites to a Seventh Circuit case, including in a parenthetical the following quoted standard adopted by the court: "documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim.” (Def.’s Mot. to Submit (dkt. # 27) 1-2 (citing Wright v. Associated Ins. Co.,
. Plaintiff Health Johnson is a citizen of Wisconsin. Defendant Bankers Life and Casualty Company is incorporated in the State of Illinois, with its principal place of business in Chicago.
. In Novotny, the Court of Appeals affirmed the dismissal of a breach of fiduciary duty claim because plaintiffs simply alleged that the defendant insurer breached the insurance contract.
. Plaintiff does not allege, and this court does not decide, whether the sale of the annuity at issue could constitute a "security” under federal or state law.
. Given this holding, the court does not need to decide the merits of defendant’s position that the language in the annuity policy itself suggesting that purchasers contact an attorney to understand the impact the annuity may have on Medicaid eligibility, either undermines the notion that the broker held a "position of trust” or discharges any fiduciary duty arguably owed. The court also need not reach defendant’s argument that such a claim is time barred, though it notes that plaintiff alleges that she only discovered the misrepresentation in late 2010 or early 2011, within two years of filing of the present action in November 2012. (Pl.’s Opp’n (dkt. #29) 19-20). Whether Mrs. Johnson should have discovered the misrepresentation earlier is a fact issue, which cannot be resolved in a motion to dismiss.
. Wisconsin courts have instructed that "case law interpreting RICO is persuasive authority when [ ] interpreting] WOCCA.” MBS-Certified Public Accountants, LLC v. Wis. Bell Inc.,
. In light of this finding, the court need not address defendant’s argument that plaintiff has failed to allege legally cognizable damages.