Recent Developments
Several major 2019 developments in the case are described in No. 327. On January 30, by which time Gary was afflicted with dementia, Transamerica offered to settle with Gary for $10,000. On February 5 Gary accepted the offer and withdrew from the lawsuit. On February 22 the Trust filed an amended complaint that omitted Gary as a plaintiff, leaving the Trust as the only plaintiff. The amended complaint included five counts: (1) declaratory relief, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) reformation, and (5) rescission.
On July 19 the judge issued an order granting the Trust's claim for breach of contract. The other four counts were denied by the judge or later withdrawn by the Trust. On July 30 the judge held a ten-minute conference. He canceled the trial, which had been set for August 5, because the parties said they had resolved the case. (A transcript of the conference is in the complimentary package offered at the end of this post.)
On August 9 the judge issued an order setting the briefing schedule to resolve the issue of damages on the Trust's breach-of-contract claim. The issue of damages is the only remaining issue in the case. The judge ordered the Trust to file, by August 30, a motion for summary judgment (MSJ) on damages. He also provided for the filing of possible further briefs on September 30, October 21, and November 8.
The Trust's MSJ on Damages
On August 30 the Trust filed its MSJ on damages. The MSJ incorporates a memorandum of law. Here is the concluding sentence of the MSJ (the full MSJ is in the complimentary package offered at the end of this post):
For the foregoing reasons, [the Trust] respectfully request[s] that the Court enter summary judgment in [its] favor as to damages, awarding [the Trust] a return of all premiums paid to Transamerica in the sum of $1,670,140.91, along with prejudgment interest.
The prejudgment interest rates the Trust suggests are the Florida statutory rates at the time of each premium payment. The Trust does not anticipate a dispute over the calculation of the damages, and says it will provide the interest figure prior to the entry of final judgment.
General Observations
The MSJ provides a detailed discussion of the Trust's reasoning. It is important to note that the Trust claims damages for its breach-of-contract claim, which the judge had granted, rather than its rescission claim, which the judge had denied. The MSJ discusses in detail the distinction between a breach-of-contract claim and a rescission claim.
The judge's briefing schedule provides that Transamerica's reply brief, or its cross-motion for summary judgment on the damages relating to the breach-of-contract claim, is due September 30. I plan to report further developments.
The judge's briefing schedule provides that Transamerica's reply brief, or its cross-motion for summary judgment on the damages relating to the breach-of-contract claim, is due September 30. I plan to report further developments.
Available Material
I am offering a complimentary 32-page PDF consisting of the transcript of the judge's July 30 conference (9 pages) and the Trust's August 30 MSJ on damages (23 pages). Email jmbelth@gmail.com and ask for the September 2019 package about Lebbin v. Transamerica.