Doherty v. Allianz Life Insurance Company of North America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARIAN E. DOHERTY, as

Guardian of Frances R.

Gorman and Executor of the

Estate of Patrick J. Gorman,

Plaintiff,

v. Case No: 2:18-cv-377-FtM-29NPM

ALLIANZ LIFE INSURANCE

COMPANY OF NORTH AMERICA, a

foreign corporation

authorized to do business in

the State of Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on the defendant’s Motion

for Final Summary Judgment (Doc. #31) filed on April 19, 2019.

Plaintiff filed a Response (Doc. #38) on May 17, 2019. For the

reasons set forth below, the motion is denied.

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004)(citing Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.

1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts”)). “If

a reasonable fact finder evaluating the evidence could draw more

than one inference from the facts, and if that inference introduces

a genuine issue of material fact, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

II.

On May 17, 2018, Marian E. Doherty, as Guardian of Frances

Gorman and Executor of the Estate of Patrick Gorman, filed an

Amended Complaint against defendant Allianz Life Insurance Company

of North America (Defendant) in the Circuit Court of the Twentieth

Judicial Circuit in and for Collier County, Florida.1 (Doc. #2.)

On May 30, 2018, Defendant removed the Amended Complaint to this

Court on the basis of diversity jurisdiction. (Doc. #1.) The

Amended Complaint asserts claims against Defendant for negligence

(Count I) and breach of fiduciary duty (Count II).

The undisputed facts are as follows: In May of 2003, Patrick

Gorman purchased a BonusDex annuity (the Patrick Annuity) from

Defendant for a premium of approximately $202,403.00.2 (Doc. #32-

4, p. 3.) Frances Gorman also purchased a BonusDex annuity (the

Frances Annuity) from Defendant in May of 2003 for a premium of

1 The Court will refer to Patrick and Frances Gorman

collectively as “the Gormans.”

2 The precise value of the premium paid for the Patrick Annuity

is unclear to the Court. The parties assert the initial premium

was $201,591.00; however, the Policy Schedule for the Patrick

Annuity reflects that the initial premium was for $202,403.00.

(Doc. #32-4, p. 3.)

approximately $101,775.00.3 (Doc. #32-3, p. 3.) The Gormans lived

part-time in Naples, Florida at this time in 2003. (Doc. #32-1,

p. 5.) In or about 2013, the Gormans began living full-time in

Illinois with their daughter, Caroline Silha. (Id. p. 31.)

On May 21, 2015, Defendant received two phone calls from

Frances Gorman, or a person purporting to be Frances Gorman.4 In

those phone calls, the caller asked, “if I want to take the cash

value out [of the Frances annuity], what do I need to do?” (Doc.

#42-5, p. 3.) The caller also stated, “I need to get a total of

$210,000, between [the Frances Annuity and the Patrick Annuity],”

and asked, “do I have to cash out fully, or how does that work?”

(Doc. #42-5, p. 8.) The caller asked that any relevant annuity

surrender forms be emailed to Caroline Silha’s email address. (Id.

p. 7.) Also on May 21, 2015, Defendant received a faxed Withdrawal

Request Form for Annuity Contract, which requested a full surrender

of the Patrick Annuity and the Frances Annuity. (Doc. #32-11.)

It requested that the funds be wired into the Gormans’ shared

3 The precise value of the premium paid for the Frances Annuity

is also unclear to the Court. The parties allege that the initial

premium was $103,147.80; however, the Policy Schedule for the

Frances Annuity reflects that the initial premium was $101,775.00.

(Doc. #32-3, p. 3.)

4 Plaintiff asserts that Frances Gorman did not make these

phone calls. Plaintiff alleges that Frances Gorman’s daughter,

Barbara Gorman, made these phone calls and posed as Frances Gorman.

It is unclear to the Court whether Defendant disputes this alleged

fact.

Regions bank account and that federal income tax be withheld at

the rate of 10%. (Id.) On May 22, 2015, Defendant received

another call from Frances Gorman, or someone purporting to be

Frances Gorman.5 (Doc. #42-5, p. 12.) In the phone call, the

caller inquired about the status of the surrender requests for the

Patrick Annuity and the Frances Annuity. (Id. pp. 12-16.)

On May 26, 2015, Defendant mailed a letter to Frances Gorman,

indicating that it received and was reviewing her annuity surrender

request. (Doc. #32-13.) The letter stated: “Your contract's

current Accumulation/Annuitization Value is $141,602.00 and its

Surrender Value is $86,706.01. By surrendering your contract now,

you are giving up the difference between these two values.” (Id.

p. 2.) Defendant completed the surrender of the Frances Annuity

on June 1, 2015 and wired $78,052.63 – the post-tax surrender value

- into the Gormans’ Regions bank account in Collier County,

Florida. (Doc. #32-14, p. 2; Doc. #32-1, pp. 16-17.)

On May 28, 2015, Defendant mailed Patrick Gorman a letter,

stating that it could not process his annuity surrender request

because “[t]he signature on [his] request form [did] not match

[his] original owner's signature on the application.” (Doc. #32-

15, p. 2.) The letter further requested that Patrick Gorman

5 Plaintiff also asserts that this phone call was made by

Barbara Gorman posing as Frances Gorman.

provide a notarized signature. (Id.) On May 29, 2015, Frances

Gorman, or someone purporting to be Frances Gorman, called

Defendant to inquire about the status of the Patrick Annuity

surrender.6 (Doc. #40-3.) The caller informed Defendant’s

representative that Patrick Gorman’s signature did not match

“because he has health issues and his hand doesn't operate like it

did when it was 20 years ago.” (Id. p. 7.) The caller further

informed Defendant’s representative that she was “in the process

of getting [] power of attorney paperwork submitted” because

Patrick Gorman was in the hospital and unable to travel to have

his signature notarized. (Id. pp. 7-8.)

On June 2, 2015, Defendant received an email from Caroline

Silha, which stated that it attached “the final paperwork []

Frances Gorman thinks is needed to finish processing the funds

[Patrick and Frances Gorman] want to access.” (Doc. #32-16, p.

2.) Attached to the email was a Power of Attorney for Property,

which stated in relevant part:

I, Patrick J. Gorman of 574 Laguna Royal Blvd., Naples,

Fl. 34119, hereby appoint my Wife, Frances Gorman, if

for any reason Frances is unable to make the decisions,

I hereby appoint my daughters, Barbara Gorman of 2800 N.

Talman Ave. Unit Q. Chicago, IL 60618 and Caroline Silha

of 6180 Indian Trail Rd., Gurnee, IL 60031 as my

attorney-in-fact (my "agent") to act for me and in my

name (in any way I could act in person) . . . .

6 Plaintiff again asserts this phone call was made by Barbara

Gorman posing as Frances Gorman.

(Id. p. 5.) The Power of Attorney for Property was signed by

Frances Gorman and notarized by Sabine Landshof, a Notary Public

of the State of Illinois. (Id. p. 8.) Defendant mailed a letter

to Patrick Gorman on June 4, 2015, stating that it received “a

request to register the Power of Attorney on [his account],” but

was unable to process the request because the Power of Attorney

for Property was not signed by Patrick Gorman. (Doc. #32-17, p.

2.)

On June 5, 2015, Defendant received a call from a Regions

Bank branch manager; the branch manager was with Frances Gorman

and Frances Gorman’s daughter, Barbara Gorman. (Doc. #40-5, p.

2.) The branch manager noted to Defendant’s representative that

Frances Gorman was anticipating a wire transfer from the Patrick

Annuity, but that it had not yet been received by Regions Bank.

(Id.) Defendant’s representative spoke with Barbara Gorman about

the status of the Patrick Annuity surrender and informed her that

the Power of Attorney for Property was invalid and, as a result,

the surrender had not been initiated. (Id. p. 9.) Defendant’s

representative also noted to Barbara Gorman that, “[y]our mom

doesn’t seem like she’s really, you know, fully understands

everything, what’s [sic] going on. You may wanna write a letter

saying that you can also speak on your dad’s behalf.” (Id. p.

15.)

On June 10, 2015, one of Defendant’s representatives

attempted to call Patrick Gorman. (Doc. #32-19.) Caroline Silha

answered the phone and stated Patrick Gorman was unavailable

because he “[was] in the hospital.” (Id. p. 2.) Defendant’s

representative explained to Caroline Silha that the Power of

Attorney for Property was invalid because Patrick Gorman did not

sign it and “he has to actually sign it in order for it to be

valid.” (Id. p. 3.) Caroline Silha then told Defendant’s

representative that he did not sign the Power of Attorney for

Property because “he can’t even hold [a] fork any longer” and “his

fingers are all . . . curled up underneath.” (Id.)

Defendant’s representative informed Caroline Silha that,

because of Patrick Gorman’s condition, Defendant required

“guardianship paper[s] from [a] court” in order to process the

Patrick Annuity surrender. (Id. at 5.) Caroline Silha responded

by asking Defendant’s representative, “if I take a piece of paper

[to the hospital] and [Patrick Gorman] scribbles whatever he

scribbles in front of a notary . . . and he scribbles, whatever

it is, I mean, I’m asking, if it’s illegible, if I, I mean I’m

gonna print . . . his name underneath it for you . . . can you

release the funds?” (Id. p. 6.) Defendant’s representative

stated, “[i]f it’s notarized, official stamp, notary seen as

Illinois, then, yes. Then we can, we can process [the surrender].”

(Id.) Defendant’s representative further stated to Caroline

Silha, “just get a signature page or a letter of instruction typed

up or best thing would be at least the signature page for the

withdrawal form. Just have him do that” and the Patrick Annuity

would be surrendered within one day. (Id.)

Later on June 10, 2015, Caroline Silha faxed Defendant a

signed signature page of the Withdrawal Request Form for the

Patrick Annuity. (Doc. #32-20.) The Withdrawal Request Form

signature page indicated it was page “3 of 3”; pages 1 and 2 were

not included. (Id. p. 3.) The Withdrawal Request Form contained

an “Official Seal” notary stamp and signature of Nina Marie

Ingoglia, Notary Public of the State of Illinois. (Id.)

On June 11, 2015, Defendant mailed a letter to Patrick Gorman,

informing him that Defendant had processed his request and “sent

a wire transfer in the amount of $162,587.42” to his Regions bank

account in Collier County, Florida. (Doc. #32-21, p. 2; Doc. #32-

1, p. 17.) By fully surrendering the Patrick Annuity, Defendant

retained the difference between the Patrick Annuity’s

Accumulation/Annuitization Value of approximately $289,723.16 and

the Surrender Value of approximately $180,365.81. (Doc. #42-5, p.

33.)

On or about December 17, 2018, Caroline Silha and Barbara

Gorman were charged with financial exploitation of an elderly

person under Illinois state law. (Doc. #32-27; Doc. #32-28.)

Caroline Silha and Barbara Gorman pled not guilty to the charges.

(Doc. #32-29; Doc. #32-30.)

III.

Defendant now moves for summary judgment on Counts I and II.

Defendant argues it is entitled to summary judgment because (1)

Plaintiff has “not asserted any tortious act independent of the

parties’ contractual relationship” (Doc. #31, p. 22); (2)

Defendant owed Plaintiff no legal duty under Florida negligence

principles; (3) no fiduciary duty exists between an insurer and an

insured; (4) Plaintiff “failed to put forth admissible evidence to

demonstrate an injury” (Id. p. 25); and (5) as a matter of law,

Defendant could not be the proximate cause of the Gormans’ alleged

damages.

A. The Economic Loss Rule

Defendant argues it is entitled to summary judgment on Counts

I and II because, pursuant to Florida’s economic loss rule, a tort

claim must be independent of a breach of contract claim. The Court

disagrees.

Historically under Florida law7, the economic loss rule barred

a plaintiff’s claim “where the parties are in contractual privity

7 This action is governed by Florida law. See Tech. Coating

Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th

Cir. 1998)(“[A] federal court sitting in diversity jurisdiction

applies the substantive law of the forum state.”).

and [the plaintiff] seeks to recover damages in tort for matters

arising out of the contract.” Curd v. Mosaic Fertilizer, LLC, 39

So. 3d 1216, 1223 (Fla. 2010). The economic loss rule had “its

roots in the products liability arena, and was primarily intended

to limit actions in the products liability context.” Tiara Condo.

Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399,

401 (Fla. 2013). Florida courts eventually extended the economic

loss rule beyond the products liability context. Id. at 402.

In Tiara, the Florida Supreme Court recognized that the

economic loss rule had undergone an “unprincipled extension”

beyond its roots in the products liability arena and thus

“return[ed] the economic loss rule to its origin in products

liability.” Id. at 406-07. In so holding, the court “recede[d]

from [its] prior rulings” expanding the economic loss rule beyond

products liability cases and expressly “limit[ed] the application

of the economic loss rule to cases involving products liability.”

Id. at 407. The court reasoned that the “expansion of the rule

beyond its origins was unwise and unworkable in practice.” Id.

In a concurring opinion, Justice Pariente noted that, despite

the majority limiting the economic loss rule to products liability

cases, “in order to bring a valid tort claim, a party still must

demonstrate that . . . the tort is independent of any breach of

contract claim.” Id. at 408. In contrast, Justices Canady and

Polston noted in dissenting opinions that, as a result of Tiara,

“there are [now] tort claims and remedies available to contracting

parties in addition to the contractual remedies which, because of

the economic loss rule, were previously the only remedies

available.” Id. at 410. The Eleventh Circuit has noted that

whether the concurring or dissenting approach controls is “still

unclear . . . .” Lamm v. State St. Bank & Tr., 749 F.3d 938, 947

(11th Cir. 2014).

Following Tiara, some district courts have adhered to Justice

Pariente’s interpretation and found that a tort claim must be

independent of any claim for breach of contract. See Kaye v.

Ingenio, Filiale De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL

2215770, at *4 (S.D. Fla. May 29, 2014)(finding that a party “must

[still] allege action beyond and independent of breach of contract

that amounts to an independent tort” (citations omitted));

F.D.I.C. v. Wolkowitz Appraisal Consultants, Inc., No. 12-CV-

60916, 2014 WL 12862210, at *1 (S.D. Fla. Jan. 16, 2014)(same).

Other district courts have found the dissent’s approach more

persuasive. See F.D.I.C. v. Floridian Title Grp. Inc., 972 F.

Supp. 2d 1289, 1298 (S.D. Fla. 2013)(finding that the economic

loss rule did not bar the plaintiff’s claims for breach of

fiduciary duty and negligent misrepresentation because the “case

[was] not a products liability case” and “[t]hus[] the economic

loss rule [did] not apply”); Carl's Furniture, Inc. v. APJL

Consulting, LLC, No. 15-60023-CIV, 2015 WL 1467726, at *4 (S.D.

Fla. Mar. 30, 2015)(noting that “the Florida Supreme Court has not

adopted Justice Pariente's concurrence as controlling law”).

This Court has previously found that, after Tiara, the

economic loss rule does not bar claims in a non-products liability

context. See B&H Farms, LLC v. Winfield Sols., LLC, No. 2:16-CV-

323-FTM-99, 2016 WL 6138625, at *2 (M.D. Fla. Oct. 21, 2016)(noting

that “the economic loss rule [did] not bar the [plaintiff’s

negligence] claim” because the case was not a products liability

case); Zoom Tan, LLC v. Heartland Tanning, Inc., No. 2:12-CV-684-

FTM-29, 2013 WL 5720140, at *5 (M.D. Fla. Oct. 21, 2013)(noting

that “the economic loss rule cannot serve as a basis for dismissing

[the] plaintiff's claims for negligent misrepresentation” because

the Florida Supreme Court “confined the application of the economic

loss rule to cases involving products liability”). Because this

is not a products liability case, the Court finds Plaintiff’s

claims are not barred by the economic loss rule.

Assuming arguendo that the Tiara concurrence approach

applies, the Court finds plaintiff has nonetheless alleged torts

independent of breach of contract.8 As discussed infra, Florida

8 Defendant argues that any alleged tort is not independent

of a claim for breach of contract because Plaintiff testified at

deposition that she believes Defendant’s duty to the Gormans arises

out of the annuity contracts. The Court, however, is unpersuaded

by Plaintiff’s lay opinion as to the source of Defendant’s legal

duty.

law recognizes that the negligent disbursement of funds is an

independent tort. See Nat'l Title Ins. Co. v. Lakeshore 1 Condo.

Ass'n, Inc., 691 So. 2d 1104, 1108 (Fla. 3d DCA 1997)(“[O]ne who

undertakes to act for another in the disbursing of funds is

answerable for failure to do so with due care.” (citation and

quotation omitted)). Moreover, a claim for breach of fiduciary

duty is a “well-established [independent] tort[] . . . even if

there is an underlying oral or written contract.” Invo Fla., Inc.

v. Somerset Venturer, Inc., 751 So. 2d 1263, 1267 (Fla. 3d DCA

2000).

B. Whether Defendant Owed the Gormans a Duty under Florida

Negligence Principles

As to Count I, Defendant argues that it owed the Gormans no

legal duty as a matter of Florida law. The Court disagrees.

The elements of a claim for negligence under Florida law are

(1) duty, (2) breach, (3) causation, and (4) damages. Clay Elec.

Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). “[T]he

determination of whether a duty is owed presents a question of law

to be determined by the court.” Jackson Hewitt, Inc. v. Kaman,

100 So. 3d 19, 28 (Fla. 2d DCA 2011). Thus, “if no legal duty

exists, then no action for negligence may lie.” Jenkins v. W.L.

Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003)(citations

omitted).

Florida law recognizes that “[t]he obvious duty of care when

managing funds for others is to use reasonable care to avoid

depletion through negligent management or mismanagement.” Nat'l

Title Ins. Co. v. Lakeshore 1 Condo. Ass'n, Inc., 691 So. 2d 1104,

1107 (Fla. 3d DCA 1997). This is so because a party that manages

funds for others creates “[t]he foreseeable risk [of] the depletion

of the [funds] belonging to others.” Id. Thus, “[o]ne who

undertakes to act for another in the disbursing of funds is

answerable for failure to do so with due care.” Id. at 1108

(citation and quotation omitted).

In this case, Defendant undertook “to act for [the Gormans]

in the disbursing of funds” from the Patrick and Frances Annuities.

Id. Thus, the Court finds Defendant owed the Gormans a duty “to

avoid depletion through negligent management or mismanagement.”

Id. at 1107.

C. Whether Defendant Owed the Gormans a Fiduciary Duty

As to Count II, Defendant agues it is entitled to summary

judgment because no fiduciary duty existed between the Gormans and

Defendant. The Court disagrees.

Defendant contends that it owed the Gormans no fiduciary duty

because, “as a matter of well-settled Florida law, insurers do not

owe a fiduciary duty to their insured . . . .” (Doc. #31, p. 24.)

Defendant is correct that a fiduciary duty does not exist between

an insurer and insured “in a first-party bad faith action . . . .”

State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 59 (Fla.

1995). This case, however, is not a first-party bad faith action.

Indeed, although Defendant is a life insurance company, the Buyer’s

Guide to Fixed Deferred Annuities attached to both the Patrick and

Frances Annuities expressly states that such an “annuity is neither

a life insurance nor a health insurance policy.” (Doc. #32-3, p.

11; Doc. #32-4, p. 11.)

Defendant also argues it owed the Gormans no fiduciary duty

because their “relationship [was] contractual in nature.” (Doc.

#31, p. 24.) Defendant is again correct that, in a first-party

bad faith action, the relationship between an insurer and an

insured is akin to that of a creditor and debtor, and “[i]n the

usual creditor-debtor relationship a fiduciary duty does not

arise.” Watkins v. NCNB Nat. Bank of Fla., N.A., 622 So. 2d 1063,

1065 (Fla. 3d DCA 1993)(citation omitted); Cardenas v. Miami-Dade

Yellow Cab Co., 538 So. 2d 491, 495 (Fla. 3d DCA 1989), abrogated

on other grounds by Auto-Owners Ins. Co. v. Conquest, 658 So. 2d

928 (Fla. 1995). As noted above, however, this is not a first-

party bad faith action. Moreover, Florida law recognizes a

fiduciary duty in a creditor-debtor relationship where the

creditor “establishes a confidential or fiduciary relationship

with a customer and the transaction is one from which the

[creditor] is likely to benefit.” Watkins, 622 So. 2d at 1065.

To establish such a fiduciary relationship, “a party must allege

some degree of dependency on one side and some degree of

undertaking on the other side to advise, counsel, and protect the

weaker party.” Id. Whether a fiduciary duty exists is an issue

of fact. Crusselle v. Mong, 59 So. 3d 1178, 1181 (Fla. 5th DCA

2011); Morton v. Young, 311 So. 2d 755, 756 (Fla. 3d DCA 1975).

Here, Plaintiff has raised an issue of fact as to whether the

Gormans placed their confidence in Defendant and whether Defendant

undertook to “to advise, counsel, and protect” the Gormans.

Watkins, 622 So. 2d at 1065. For instance, in a letter “[p]repared

especially for” Patrick and Frances Gorman, Defendant thanked and

congratulated the Gormans for purchasing a BonusDex annuity and

stated, “[w]e appreciate your confidence and are mindful of our

responsibility to you and your family or business.” (Doc. #32-3,

p. 41; 32-4, p. 41.) The letter further provides that “you have

peace of mind knowing that your money is safe . . . [u]tmost in

our minds is the safety of the funds you entrust to our care.”

(Id.)

Viewing the foregoing evidence in the light most favorable to

Plaintiff, the Court finds Plaintiff has raised an issue of fact

as to whether Defendant owed the Gormans a fiduciary duty to

protect the Gormans from fraudulent surrenders of the Patrick and

Frances Annuities. Resolution of this factual matter is

inappropriate on a motion for summary judgment. Crusselle v. Mong,

59 So. 3d 1178, 1181 (Fla. 5th DCA 2011)(Whether “an implied

fiduciary relationship existed . . . should be considered by a

jury.”); Browning v. Peyton, 918 F.2d 1516, 1522 (11th Cir.

1990)(Under Florida law, summary judgment is inappropriate where

“questions of fact [exist] as to whether a fiduciary relationship

ha[s] been established.”).

D. Whether Plaintiff Has Submitted Evidence Demonstrating Injury

Defendant argues that, aside from the mere fact that the

Patrick and Frances Annuities were surrendered, Plaintiff has

submitted no evidence raising an issue of fact was to whether the

annuities “were ‘improperly surrendered’ because the Gormans did

not intend to surrender them.” (Doc. #31, p. 26.) The Court

disagrees.

As to the Frances Annuity, Plaintiff has submitted an

affidavit in which she avers that Frances Gorman’s daughter,

Barbara Gorman, impersonated Frances Gorman on the phone calls

attempting to expedite the Frances Annuity surrender. (Doc. #41-

1, p. 2.) In addition, as discussed supra, Plaintiff has set forth

evidence detailing that one of Defendant’s representatives, after

speaking on the phone with Frances Gorman, noted that Frances

Gorman did not “seem like she[] really . . . fully underst[ood]

everything, what’s [sic] going on.” (Doc. #40-5, p. 15.)

As to the Patrick Annuity, Plaintiff has submitted evidence

indicating that the surrender form - purportedly notarized by Nina

Marie Ingoglia – bears a forged signature of Ms. Ingoglia. At

deposition, Ms. Ingoglia testified that her signature next to her

notary stamp on the withdrawal form was “definitely not [hers]”

and that she did not notarize the surrender form. (Doc. #42-11,

p. 7.) The Court finds that the foregoing evidence raises an issue

of fact as to whether the Patrick and Frances Annuities were

“improperly surrendered.”

E. Proximate Causation

Defendant lastly argues it is entitled to summary judgment on

Counts I and II because, as a matter of law, Defendant cannot be

the proximate cause of the Gormans’ alleged damages. The Court

disagrees.

To establish claims for both negligence and breach of

fiduciary duty, a plaintiff must demonstrate that the defendant

was the proximate cause of his or her damages. Gracey v. Eaker,

837 So. 2d 348, 353 (Fla. 2002); Curd v. Mosaic Fertilizer, LLC,

39 So. 3d 1216, 1227 (Fla. 2010). The issue of proximate causation

“is generally a question of fact concerned with whether and to

what extent the defendant's conduct foreseeably and substantially

caused the specific injury that actually occurred.” Goldberg v.

Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005)(citation

and quotation omitted). “[H]arm is ‘proximate’ in a legal sense

if prudent human foresight would lead one to expect that similar

harm is likely to be substantially caused by the specific act or

omission in question.” McCain v. Fla. Power Corp., 593 So. 2d

500, 503 (Fla. 1992)(citation omitted).

As a matter of Florida law, proximate causation cannot be

established where “an intervening cause is completely independent

of, and not in any way set in motion by, the tortfeasor's

negligence . . . .” Deese v. McKinnonville Hunting Club, Inc.,

874 So. 2d 1282, 1287–88 (Fla. 1st DCA 2004). Thus, as a general

principle, “an intervening criminal act breaks the chain of

causation, and therefore the original negligence of the defendant

cannot be the proximate cause of the damage resulting from the

intervening criminal act . . . .” Nicholas v. Miami Burglar Alarm

Co., 266 So. 2d 64, 66 (Fla. 3d DCA 1972). However, when an

“intervening criminal act, or the loss therefrom, is foreseeable,

then the original actor's negligence may be considered the

proximate cause of the loss, and he may be liable, notwithstanding

the intervening criminal act.” Singer v. I. A. Durbin, Inc., 348

So. 2d 370, 372 (Fla. 3d DCA 1977)(citation omitted).

The issue “of foreseeability as it relates to proximate

causation generally must be left to the fact-finder to resolve.”

McCain, 593 So. 2d at 504. Thus, where “reasonable persons could

differ as to whether the facts establish proximate causation . .

. then the resolution of the issue must be left to the fact-

finder.” Id.

Here, Defendant argues it was not foreseeable that the funds

from the Patrick and Frances Annuities would be misappropriated by

Barbara Gorman and Caroline Silha after being wired to the Gormans’

Regions bank account. Defendant reasons that Barbara Gorman and

Caroline Silha’s allegedly criminal actions were unforeseeable

intervening acts that broke the chain of causation. Thus,

Defendant contends, Plaintiff cannot satisfy the proximate

causation element as a matter of law. In response, Plaintiff

argues that Defendant’s internal policies demonstrate that the

Gormans’ damages were indeed foreseeable.

In relevant part, Defendant’s internal policies provide that

“[s]ignature verification is . . . the 1st line of defense in

mitigating the risk of fraudulent requests being processed and the

disbursement of funds to malicious fraudsters.” (Doc. #39-3, p.

7.) Defendant’s internal policies also provide that a senior

citizen’s use of email may be a “red flag” indicating that

fraudulent activity is occurring, because it is “not common for a

senior citizen to use email as a form of communication.” (Id. p.

16.)

As noted supra, there are several unresolved factual issues

in this case, including whether Barbara Gorman posed as Frances

Gorman on phone calls to Defendant and whether the Patrick

Annuity’s surrender form contains Patrick Gorman’s forged

signature. In light of these issues of fact, and given that

Defendant’s own internal policies contemplate the potential

“disbursement of funds to malicious fraudsters,” the Court finds

that “reasonable persons could differ as to whether the facts

establish” that Barbara Gorman and Caroline Silha’s alleged

misappropriation of the Gormans’ funds was foreseeable. McCain,

593 So. 2d at 504. Thus, resolution of the issue of proximate

causation is not appropriately decided on summary judgment in this

case. Id.

Accordingly, it is now

ORDERED :

Defendant’s Motion for Final Summary Judgment (Doc. #31) is

DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 20th day of

August, 2019.

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J9GHN E. STEELE

SHYIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record