Lincoln Benefit Life Company, Nebraska Domestic Insurance Corporation, Appellant/cross-Appellee v. Robert R. Edwards, Appellee/cross-Appellant
243 F.3d 457
8th Cir.
2001
Check Treatment
Docket

*1 Moring sisted that Ms. “owed” him for her room,

job. He would not leave hotel

although Moring repeatedly Ms. asked him Finally, bed,

to leave. he sat on her thigh

touched her leaned as if to her. TMs was

Mss sufficient evidence to

support a jury’s finding reasonable

the incident at the hotel was severe

еnough to alter the terms and conditions of Moring’s employment.

Ms.

III.

Thus, considering the evidence in the

light most favorable to Ms. Moring, and

giving her the benefit of all reasonable

inferences, we hold that the District Court

did not in denying err the motion for

judgment aas matter of law. We also

hold the District Court did not abuse discretion in denying

its new trial.

Accordingly, judgment is affirmed. COMPANY,

LINCOLN BENEFIT LIFE Corpo-

Nebraska Domestic Insurance

ration, Appellant/Cross-Appellee,

v. Appellee/Cross- EDWARDS,

Robert R.

Appellant. 99-1980,

Nos. 99-2245. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted: 2000.

Filed: March

PER CURIAM.

These cross-appeals arise dispute from a between an insurance company and its for- agent mer over amounts due under several contracts. We affirm.
Robert R. began working for (“LBL”) Lincoln Benefit Life in December 1980 as a general agent. LBL agents earned commissions based on a percentage year of the first premium on any new business responsible written. Those for overseeing agents earned “overwriting commissiоns” on new business written agents subordinate to them. LBL did not require agents to await a subscriber’s en- year’s tire first payment before drawing Rather, the commission. once a new sub- completed scriber filed a application, un- any derwent required exam, medical paid the first premium, month’s LBL would advance an agent the entire commis- sion. Should a subscriber permit later a policy lapse, the agent repay had to the advance.

In Edwards entered into “Mar- (“MDA”) keting Director Agreement” with with, LBL agreed wherein he to meet recruit, train provide support for agents in return for overwriting commis- sions and bonuses. LBL retained the ul- right approve timate disapprove or hiring Edwards’ Agents selections. sub- ordinate to Edwards submitted insurance LBL, applications directly to which would process then and return them directly to agent. The MDA’s “tie-in” clause prohibited adjustments to any marketing director’s commission rate without a cor- responding adjustment for all other mar- MDA, keting directors. Under the Ed- Nedved, Gary Lincoln, argued, J. NE accepted wards responsibility for Wittier, (Terry Tracy R. Oldemeyer, A. on debts incurred agеnts. his subordinate brief), appellant. for The MDA remained in effect until Ed- wards’ termination. Lincoln, Ogborn, argued, Robert M. NE Summerlin, (Murray Ogborn, V. Among Gene agent-recruits was Kester, Holloran, Krista L. P. James on Don Clark. LBL by Clark defrauded al- brief), appellee. tering premium rate reflected on new

applications submitted, he artificially thus BEAM, HEANEY, Before inflating premium JOHN he could claim as an GIBSON, R. Judges. During period, Circuit advance. LBL fre- ad- parties entered an governing rules its own waived

quently Indebtedness advances, without com- dendum to the them permitting $2,755 pay- pay LBL exams or Edwards would medical which plete applications, months, As premium. month’s LBL would the first after which ment of directly to applications in full. LBL later satisfied agents submitted deem debt opportunity trial, to discov- LBL, had payments. At suspended these 1, 1986, ‍‌‌​‌​​​‌​​​‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‌​‌​​​‌​‍nor malfeasance March stipulated er neither Clark’s that from found itself subsequently 31, 1998, waivers. a total of through March premi- fictitious to collect Clark’s [by unable “payments Edwards] responsible under held Edwards ums and applied to the debt. and credits” was the MDA. much Edwards how LBL never informed by money generated was irreg- Edwards of the notified first *4 By litiga- the time increased commissions. Wraith, LBL Gene in 1983 when ularities LBL that Edwards began, tion asserted di- overseeing marketing vice-president $1,066,596.88. owed it at rectors, Edwards’ debt estimated $107,000. not raise the issue LBL did 1985, LBL July In Edwards and also February 1985 when until Wraith again Compensation Ad- “Continuing entered a out- discuss the suggested that the‘two (“CCA”) LBL under which dendum” discussion oc- debt. No such standing pay to continue to Edwards com- agreed until March 1986. curred LBL under following leaving his missions 1986, LBL Edwards met with In March specified conditions. The CCA also con- On to discuss his indebtedness. officials which no-compete tained a clause under 7,1986, an “Indebtedness signed March he if payments ceased Edwards became (the whereby “Agreement”) Agreement” LBL. LBL never made competitor of has responsibility acknowledged he agreement, payments under in $433,100.72 plus subagent interest at trial the amount due. contested in attributed the increase LBL debts. 1985, early In late 1984 or LBL decided and 1986 to interest between 1983 amount away from change marketing strategies, to debt, has never been on the but Edwards system to a “life marketing director debt portion of the variоus informed what brokerage system.” This distribution or inter- principal statements constituted brokerage agencies model envisioned pay to off the debt agreed est. Edwards business, personally did not solicit but in 1989. Under monthly installments num- managed large rather recruited and promised LBL to assist Agreement, undertaking This would agents. bers of increasing payments by his Edwards with marketing campaigns, travel and involve rates. These increased his commission fi- expertise require significant and would actually paid to not to be amounts were expected The demands nancial resources. Edwards, were to be retained but rather placed brokerage agents to be on exceeded against his debt bal- by LBL and credited placed marketing on directors. LBL those agreed assign ance. LBL also Edwards ultimately replaced all MDA contracts ex- Ed- agents. Wraith assured cept Brokerage with “Master Edwards’ permit changes wards that these (“MBA”) LBL did not Agency” contracts. actual cost satisfaction of the debt without upset- alter Edwards’ contract for fear of him. further told Edwards Wraith Agree- ting the terms of the Indebtedness would result sign Agreement failure to ment. signed in his Edwards termination. Agreement because of this threat. request In made a formal Effective March accounting. LBL reas- for an Agreement,

Pursuant to the Edwards, LBL terminated Edwards’ contracts. signed agents and credit- termination, LBL Following until Edwards’ ed him with increased commissions declaratory judgment filed an action for in a larger award under the CCA and alleging Nebraska state court reasserts his dismissed tort claim. $452,558.29 owed it under the various

agreements. Edwards removed the action Appeal LBL’s Claims on to federal court and Ed- counterclaimed. A. Rescission Offset (1) wards asserted: LBL breached MDA “tie-in” by paying clause Weber and The district court found that LBL in- higher Liberda rates of than commission duced signature on the Indebt- (2) Edwards; LBL breached an oral edness Agreement by fraud and coercion. agreement to all assign agents of its in the court consequently rescinded the (3) Edwards; Dallas-Fort Worth area to Agreement, and LBL pay ordered Ed- 1986 Indebtedness should wards the stipulated paid be rescinded as induced fraud and coer- and credited towards the debt. The dis- (4) ciоn; LBL breached the CCA rejected trict court LBL’s claim for an (5) it, and; any payments making under offset, ruling “LBL cannot now claim an implied violated an good covenant of was, offset effect, for what the ‘bait’ faith and fair dealing the CCA. LBL dangled to fraudulently induce Ed- wards to sign Agreement. Put simply, rejected district recoup cannot the costs of its fraudu- *5 LBL’s of statute limitations defense. Lin appeal, lent scheme.” On LBL argues the Edwards, coln Co. v. 966 Benefit Life by court erred awarding not it an offset for (D.Neb.1997). F.Supp. 911 We affirmed. paid amounts it or credited to Edwards Edwards, Lincoln Co. v. 160 Benefit Life under the Agreement. (8th Cir.1998). F.3d 415 We review a district court’s ap trial, After a bench the district court plication of law state de novo. Regi Salve rejected LBL’s claim that Edwards owed Russell, 225, 239, na Coll. v. 499 U.S. 111 money. it The court found that MDA the 1217, (1991); S.Ct. 113 L.Ed.2d 190 Sioux made only Edwards liable agents’ for his City Foundry v. City, Co. South Sioux 968 debts accrued within the contract terms. (8th 777, Cir.1992). F.2d 779 We review a Accordingly, he responsible was not district equitable court’s denial of relief for debts incurred when LBL waived the con- abuse of Foy discretion. v. Klapmeier, tractual limitations on advances. The dis- (8th 774, Cir.1993). 992 F.2d 779 We re trict court ruled for LBL on Edwards’ view the findings district court’s of fact for first, second and fifth counter-claims. On clear error. Fed.R.Civ.P. 52. claim, third Edwards’ the court rescinded the Indebtedness as induced Nebraska’s law of Rescission is coercion, fraud and 'and awarded Ed- clear. This equitable remedy dissolves $255,718.77 wards restitution of the stipu- and renders a written agreement a nullity. paid lated as credited towards Bank, Haumont v. Security State 220 plus pre- debt and post-judgment interest. 809, (1985). Neb. 374 7 N.W.2d Rescis The district refused to LBL award requires judicial sion place “a effort to an any paid amounts it offset credit- or in, parties contractual nearly possi as as ed to Edwards the Agreement. under On ble, substantially the same condition which claim, fourth Edwards’ the court awarded existed when the contract was entered.” him under the CCA. Loseke, Kracl v. 236 Neb. 461 N.W.2d appeals (1990). both the district Rescission, court’s 76 ordering refusal to award it an offset and require also court must all parties to return prejudgment award of interest. they On cross- whatever gained under the rescinded appeal, Edwards challenges Garrett, the dismissal document. Gnuse v. 129 Neb. cross-claim, (1935). 143, 144 his first claims entitlement 261 N.W. parties. explained Agreement, ing The court below

Under LBL, payments remedy is “[b]ecause to make rescission agreed income agreed returning to increase Edwards’ aimed at to a contract to raising commission rates and as it quo, his the status involves not agents. contract, The signing him additional cancellation of the but also ‘a classify LBL to those Agreement required judicial place par- effort to the contractual as Ed in, increased commissions income tо nearly possible, substantially ties as wards, them and to but then to retain the same condition which existed whén the ” directly against his debt. To Kracl, credit them was entered.’ (citing contract Agree 76). that LBL followed the the extent N.W.2d at The court awarded Ed- against ment and credited these amounts stipulated wards with the amount of account, they Edwards’ amount at best to $255,713.77 him restore to the status procedure and enti accounting an cannot quo; we that this coun- judgment believe requires tle LBL to an offset. Rescission unjust terbalances LBL’s enrichment actually the return of all benefits con premiums generated earned under ferred. As Edwards never received these supervision, subsequently Edwards’ amounts, they did not confer a benefit on affirm. Moreover, him. as the district court Pre-Judgment B. did not in fact owe Interest

found any Agreement, debt under the due to The district court awarded Edwards fraud, reduction Edwards’ pre-judgment interest under Nebraska then debt also consti outstanding does not 45-103.02(2) statutes and 45-104. LBL may tute a benefit ‍‌‌​‌​​​‌​​​‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‌​‌​​​‌​‍conferred. LBL argues that right recover and have an offset for such credited controversy the amоunt in rea- were both amounts. sonably during litigation, contested analysis does not end here. When may and that Edwards therefore not re- *6 a rescinding pre-judgment real estate contract it is clear cover interest. that the benefits to be returned include the governs State law whether a di property, purchase price, and the rent- versity litigant may pre-judgment recover property al value of it for the time that Tarnavsky Tarnavsky, interest. v. 147 occupied by buyers.

was Equitable (8th Cir.1998). 674, Nebraska, F.3d 679 rescission in field of insurance sales is unpaid interest аccrues on the balance of complex. impossible more It is for LBL any claim liquidated from the date the to return all benefits it received a result cause of action through arose the date of of its fraudulent contract with Edwards. judgment only when “no con reasonable monthly premiums LBL earned the [exists], troversy plaintiffs as to either policies accrued as a result of the right to recover or as to the amount of by were subagents; sold it can- Edwards’ recovery.” Lange such Indus. v. Hallam policies “unsubscribe” the that were Co., 465, 465, 244 Grаin Neb. 507 N.W.2d purchased supervision. under Edwards’ (1993); § 477 see also Neb. Rev. Stat. 45- LBL still benefits from the rescinded 103.02(2). contesting The mere of the fraudulent contract it because continues to right recovery amount of or does not premiums collect from Edwards’ subscrib- a controversy. alone create reasonable ers. The rescission of the contract is im- Bank, See A.G.A. Inc. v. Nat’l First 239 perfect case, in this in and results 74, 655, (1991); Neb. 474 N.W.2d 658 spite attempt enrichment in of the court’s Wiebe Constr. Co. v. School Dist. Mil of place pre-contractual in their lard, 730, 413, 198 Neb. 255 N.W.2d 416- pоsitions. (1977). Rather, 17 challenge asserted

A equity court of has inherent must inquiry be reasonable. Id. This re power justice quires by restore between contract- an of discretion exercise

463 district court. Lackawanna Leather Co. v. whether actually owed a debt. Stewart, Ltd., 1197, Martin & 730 F.2d The district court found that but for LBL’s Cir.1984). (8th coercion, 1204 While we review the fraud and Edwards would never applicable statutory determination of the signed have the contract. seriously We novo, rate of interest de Society Nat'l doubt whether a procured document Ltd., 574, Bank v. 122 P’ship, Parsow F.3d trickery and grounds threat creates for a (8th Cir.1997), 577 we review the decision dispute reasonable as to plaintiffs whether to award interest for abuse of See, right to recovery. e.g., Fletcher v. Thus, discretion. at Id. we review Mathew, 853, 233 Neb. 448 N.W.2d 576 the district court’s decision to award inter (1989) (finding no reasonable defense 45-103.02(2) est under section of abuse where defendant elderly defrauded client discretion. transferring into assets to his name de spite court’s having disputed to resolve a The certainty right of Edwards’ to re legal question); Bank, Society Nat’l cover an requires evaluation of the merits F.3d at 576 (noting that “[interest is not of LBL’s defense. Nebraska case law according recovered a rigid theory of subjective demonstrates the nature of this compensation withheld, money but is inquiry. Pre-judgment interest has been given response to of fair considerations inappropriate in disputes over genuinely ness”); Vogt v. Country Realty Town & ambiguous language, Lange contractual Lincoln, 194 Neb. 231 N.W.2d 496 Indus., 507 N.W.2d at 477 (disputing (1975) (awarding pre-judgment interest whether a contractor had substantially where real agent estate violated fiduciary contract), performed а under un areas of fraud).1 duties participating law, settled Blue Corp. Tee v. CDI Con raised no reasonable defense to Edwards’ tractors, Inc., 247 Neb. 529 N.W.2d right to recover. (1995) 16, 21 (disputing party whether was sub-contractor), materialman or a and in In order to recover prejudg cases where possible resolution ‍‌‌​‌​​​‌​​​‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‌​‌​​​‌​‍was ment interest the sought amount must also after the district court exercised its fact- reasonably be certain. A reasonably cer finding discretion. Daubman v. CBS Real tain amount may be calculated trial Co., Estate 254 Neb. 580 N.W.2d “opinion without rеsort and dis (1998) (withholding pre-judgment in process.” cretion in the factfinding Lange agent’s terest where an ambiguous con Indus., 507 at 477. Examples N.W.2d duties). duct was held to fiduciary violate *7 “promises sum, such pay include to a fixed However, where the issue reasonably is received, money claims for had and claims clear, spirited even the most opposition out, money paid and claims for goods precluded has not recovery pre-judg paid or services to be for at an agreed Inc., ment interest. A.G.A. 474 N.W.2d at Leather, rate.” Lackawanna 730 F.2d аt (holding 658 that a bank had no reasonable Abbott, 61, 1204 (citing Abbott v. 188 Neb. argument liability to avoid clearly under a 204, (1972)). 195 N.W.2d 209 The evidence stated agreement). escrow These cases all which, believed, “furnish[ must data if ] necessarily required an judg exercise of possible it compute makes to the amount ment. exactness, with opinion without reliance on Fletcher,

Edwards sought restitution of the or discretion.” 448 at N.W.2d 583 omitted). payments he made under the (quotation Indebtedness An right asserted to Agreement. interposed that the evi an offset does not render an amount unliq dence dispute Co., raised a reasonable as to uidated. Wiebe Constr. 255 N.W.2d at (8th Rather, losing party engaged Cir.1991). 1. That the wrongdo may 42 such conduct ing justify pre does not itself an award of party's diminish the reasonableness of that judgment interest. See Yonker Constr. Co. v. asserted defense. 936, Contracting Western Corp., 935 F.2d 941- 464 payments pursuant parties stipulate to an commission made

417. Where substantially BMD contract amount, reasonably different may it be considered MDA. did not violate Edwards’ certain. Id. stipulated at trial to pieces Edwards directs us tо two awarded. Ed ultimately First, testimony. points he to Wraith’s $37, is entitled to the 325.35 wards that with testimony agreements his oral Continuing payments due under Com only higher and Liberda concerned Weber 10, 1985, July Addendum dated pensation payments commission and did include 1995, 1996, and 1997. years for calendar provisions included in the remaining this, BMD contracts. From he would have Cross-Appeal on Edwards’ Claims wholly that the two were unre- us conclude Second, points testimony lated. he Marketing Director A. The Jonske, president from Fred a former and challenges first the district LBL, that the CEO of to the еffect BMDs finding that LBL did not violate court’s did not take effect until after the paid when it the “tie-in” clause Weber increased commission rates commenced. higher rates than Liberda commission reflects, that though, The record Wraith paid those to Edwards. The district court fully to relate the boosted com- intended that LBL found did not do so because to the mission rates to transition payments pursuant higher were made system. market He tes- brokerage-based Marketing Weber’s and Liberda’s Broker payments help were “[t]o tified contracts. for clear age Agent We review 52(a); them make the transition to this new dis- error. Fed.R.Civ.P. Moore v. No (8th Cir.1998). system tribution and to also to enlist vak, [sic] 146 F.3d We support positively in speaking their about if may reverse the district court left proposed changes existing to the field firm with “the definite and conviction Moreover, arrangement force.” “the I a mistake has been committed.” United Co., [Weber Liberda] made with had noth- Gypsum States v. United States 364, 395, ing marketing to do with their director’s 68 S.Ct. 92 L.Ed. 746 U.S. addition, (1948). conviction, contract.” Jonske testified Led to no such we that LBL on brokerage embarked affirm. marketing strategy in 1985. He detailed The “tie-in” the al clause forbade required the “skill set” for this undertak- any marketing teration of director’s com ing, explained why opinion in his Web- mission rates without a similar amendment it, er and Liberda had while Edwards did marketing for all other directors. Howev Finally, explained why not. he this effort er, agree entered an oral startup capital, require Leroy ment with Tony Liberda and Web be funded the increased commission er, directors, marketing pay both them rates. at higher commission rate. The district *8 cоurt found that “[w]hile not intended to The district court found that the MDA writing, Brokerage Marketing ability be in the did not foreclose to create marketing systems, Director contracts with Weber and Liber new and to enter dif- da ... are an higher accurate written statement ferent contracts at rates of commis- agreements of confidential oral between sion agents. with other Edwards does not Weber, Eugene challenge Liberda and Bernard findings. these Our review of Moreover, the district court arguments Wraith.” counsel’s and the record leave pointеd suggesting opinion to evidence that the of the that the district court us did any finding two did not receive not clear in that increased commis commit error the year payments sion rates until that the made to and Liberda did Weber signed. BMD’s were The court found that not violate Edwards’ MDA.

465 Continuing Compensation B. The Ad- presently Nebraska recognizes a dendum tort claim for the implied violation of an duty good faith and’fair dealing in only Our resolution of argu- Edwards’ first two third-party first-party ment moots his claim for com- cases— against claims companies.2 insurancе pensation See under the Accordingly, CCA. we Co., Braesch v. Union Ins. find that 237 Neb. the district court did not commit (1991) in clear error its 464 N.W.2d 769 (first-party calculation of suit insured); compensation due under ‍‌‌​‌​​​‌​​​‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‌​‌​​​‌​‍the Co., CCA. Olson v. Union Fire Ins. (1962) 174 Neb. 118 N.W.2d 318 Implied C. Tort of Violation of an victim). (third-party suit accident Acci Covenant of Good Faith and Fair dent victims and parties may insured sue Dealing companies insurance to recover damage Finally, appeals the district in awards excess of policy limits where the ruling court’s that Nebraska law does not company insurancе previously refused in recognize would not a tort claim for faith to policy bad settle at the limits. Id. implied the violation of an covenant of These causes of action are anchored in the good faith and fair dealing. The tort Ed- obligation insurer’s “good to act in faith alleges wards arises out of LBL’s failure where the rights of an insured are con to him pay anything under CCA. Olson, cerned.” 118 N.W.2d at 321. Ed court, the district LBL did not contest wards exhorts this court find that were contract, liability under this but did con- Supreme Nebraska Court faced with test the amount owed. arguеs case, the facts of his it would extend all, that in refusing pay at him permit Braesch to him to sue LBL in tort acted bad faith urges this court to its alleged bad faith pay refusal to him Supreme hold Court of Nebraska under CCA. would, presented if with question, rec- ognize such a tort claim. We decline the In expanding permit Olson to a first- invitation. Braesch, party suit in the Nebraska Su- preme recognized potential Court for a Again, this court reviews the dis flood of contract-based tort suits. To application trict court’s of state law de result, this narrowly avoid tаi- court Regina novo. Salve College, 499 at U.S. holding great lored its and took care to 231, 111 presented S.Ct. 1217. When with its tort limit to insurance contracts. It law, a question upon of state which the distinguished insurance being contracts as ruled, highest yet state’s court has not particular interest, public incorporat- onus falls to this court to determine what do, ing interests, some non-commercial presented were it and as question. being particularly with the Lindsay Mfg. subject to bargaining Co. v. Co., Braesch, Accident & inequities.3 118 Indem. F.3d at 774- N.W.2d Hartford (8th Cir.1997). 1263, 1267-68 76. recognizes howevеr, good Nebraska lawyering, covenant of argu- With careful dealing every faith and fair might contract. apply Every Stra ment well contract. Roseland, tegic Mgmt., Inc. v. 260 Neb. peace contract is entered into for of mind and Staff 682, 689, (2000). 619 N.W.2d security. ground Contracts establish rules to such Breach of govern a covenant affords a contract parties’ future conduct and interac- Here, remedy. Edwards sues not in contract They attempt disputes, pre-empt tion. but in reached, tort. plow ground yet and to establish principles apprоaching anticipated or un- *9 argues 3. anticipated problems. Edwards that he bargained satisfies Braesch in part because he entered compensation the CCA not for certain in return for certain gain security financial but also for peace pay and LBL services. As failed to him under that This, contract, argues, parallels in retirement. he the contract law will enforce the deal give non-commercial notions in bargain. discussed Braesch. him the of his But benefit LBL. The by Supreme upon ferred the Nebraska

Because uр the district court’s then takes limit its tort to care to took such Court $255,713.77 As to that award to Edwards. the Braesch contracts, opinion insurance amount, court found: the district a sufficient basis provide does not simply stipulated that Nebraska tort law The have the realm of expand to $255,713.77 Accordingly, “payments [by Edwards] in court. in federal litigatable been made towards Supreme and credits” have that the Nebraska we hold LBL from indebtedness owed to Court, question, would if faced with Only March to March claim. permit Edwards’ not indebtedness —as “credits” to Edwards’ BEAM, dissenting in Judge, Circuit payments by Ed- opposed by [sic] part. September after of wards —were made re- the court’s conclusion I dissent from “put LBL agreed 1991 because Ed- court’s award to the district garding until could payments [Edwards] limbo wards, nor neither Nebraska law because enough agents to kind of accumulate it. support the record that compensation [LBL] that ... offset clear, citations make even away the court’s [him].” As took from involved, Nebraska rescission if fraud is record) (brackets in.original). trial (quoting to return the ben- party each rеquires law that language This makes clear In bargain. order to efits of the rescinded only partially pay- consists one must first problem, understand LBL, and by ments made Edwards to also Agreement’s scheme. understand LBL partially of amounts credited provided LBL Agreement, Pursuant to the Edwards certain- against Edwards’ debt. rates higher commission Edwards with of the former ly deserves restitution sub-agents. Ed- assigned amounts, monies that they constitute wards, return, promised repay his have been Agreement but for the LBL out of his increased alleged debt to story. a different his. But the credits are The did not affect income. credited Agreement, Absent the monies policyholders to LBL. premiums paid by against LBL Edwards’ debt would have Rather, larger it to Edwards a allocated Therefore, belonged to LBL. these credits books, its premiums. of those On slice a conferred on do not constitute benefit larger slice as income registered LBL Agreement, LBL Edwards under the Edwards, pay than it out to but rather given not be to him as rescis- should him, it and credited it simply retained sion restitution. purported debt. As the district against his The district court made no effort clear, makes Ed- court’s rescission order parse stipulated amount to determine LBL actually owed that debt. wards never proper award of rescission restitution Therefore, against amounts credited required by Nebraska law. district actually by LBL did not confer debt erroneously it court failed to do so because the Agreement benefit on Edwards. Had support of fraud to its finding used the amounts, existed, increased never those approach, judgment to the entered. to Edwards under the treated as income award, order to sustain the district court’s directly to Agreement, would have flowed law, dealing and to avoid with this error of LBL. the court fabricates benefits that scheme, by virtue of the correctly purportedly the court received Given this it The court assumes that ab- Agreement. amounts denies restitution debt, Agreement, Edwards would have as those sent the credited towards new insurance business for represent a benefit con- attracted less amounts do floodgates represent in the Although he the first crack contract law will do no more. it, sought keep closed. argumеnt the Braesch court denies Edwards' does in fact *10 LBL, that agents reassigned to him or poli-

would have sold fewer insurance UNITED America, STATES of absolutely support cies. There is no Appellee, assumption. approach This new is v. simply designed support the result reached the court even as it ignores Larry NATION, Appellant. Jack Indeed, precedent. established Nebraska record, law,

neither the Nebraska case nor America, Appellant, United States of supports common sense prem- the court’s v. ise. Because LBL would have all received ‍‌‌​‌​​​‌​​​‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‌​‌​​​‌​‍policy premiums anyway, such Larry Nation, Appellee. Jack amounts should not be included in any 00-1931, Nos. 00-1941. rescission calculus. United

The States Appeals, court’s resolution Court of unnecessarily Eighth clouds Nebraska law. Circuit. logic, any Under its contract could be argued to contain un- Submitted: Dec. 2000. quantifiable intangibles that can be used to form the basis of rescission judgment. Filed: March precedent court claims that Nebraska upon is based real estate contract law and

not the complex more world of insurance

sales. correctly But one can argue that of a agreement

rescission real estate would goodwill up

not return built the use of

the property, anguish mental over a con- demise,

tract’s or number of other

purported “benefits.”

Rather than contort Nebraska law to

sustain the district court’s ap- award on

peal, I simply would remand the damages

question to the district court for determi- portion

nation what of the payments by LBL,

constitutes Edwards to portion represents

and what credits from

LBL against the debt.4 This is Ne- what clearly

braska requires. law dissent, I point

On this but am otherwise

happy to concur in a concisely reasoned

opinion.

4. This require ing. outcome also district pre-judgment court to revisit its interest rul-