764 F.2d 1437 (11th Cir. 1985), 84-5595, Gregory v. Massachusetts Mut. Life Ins. Co.

Docket Nº:84-5595.
Citation:764 F.2d 1437
Party Name:Ledford GREGORY, Howard Kurzner, Neil J. Rohan and Ronald A. Gioffre, as Trustees of Gregory, Kurzner and Rohan Orthopedic Associates, P.A., Pension Plan and Trust Agreement, Plaintiffs-Appellants, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
Case Date:July 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 1437

764 F.2d 1437 (11th Cir. 1985)

Ledford GREGORY, Howard Kurzner, Neil J. Rohan and Ronald A.

Gioffre, as Trustees of Gregory, Kurzner and Rohan

Orthopedic Associates, P.A., Pension

Plan and Trust Agreement,

Plaintiffs-Appellants,

v.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 84-5595.

United States Court of Appeals, Eleventh Circuit

July 9, 1985

Page 1438

Dwight Sullivan, Miami, Fla., for plaintiffs-appellants.

Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, P.A., Thomas E. Scott, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HENDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Four physicians, Dr. Ledford Gregory, Dr. Howard Kurzner, Dr. Neil Rohan, and Dr. Ronald Gioffre, as trustees of a pension fund for their professional association, appeal from a directed verdict for the defendant, Massachusetts Mutual Life Insurance Company ("the Insurance Company") in a breach of contract action. Because this is an appeal from a directed verdict, the facts will be stated in the light most favorable to the plaintiffs.

Early in 1978, Dr. Kurzner had preliminary discussions with Norman Clarke, regional group pension manager in Miami for the Insurance Company. Kurzner told Clarke what the doctors were looking for in a contract. On May 23, 1978, the doctors signed a preliminary application and sent it to the Insurance Company. That one page application stated only that it was for a group pension contract.

Some time later, the Insurance Company sent a sample contract to the doctors. Dr. Gregory looked it over, could not understand it, and sent it to the doctors' attorney, Martin Kurzer. Kurzer reviewed it and reported back to Gregory. 1

In July 1978 the Insurance Company sent another sample contract to Bob Crecelias, a financial planner retained by plaintiffs. Crecelias looked at the contract briefly but did not review it. 2 The contract was similar to, but not identical with, the one Kurzer had reviewed.

On August 4, 1978, the doctors had a telephone conversation with Clarke. Gregory told Clarke that the sample contract which Kurzer had reviewed did not meet their objectives. He told Clarke that the doctors were looking for a contract which would provide:

(1) the ability to get out of the contract at their option;

(2) a guarantee that the doctors would get all their money back, principal plus interest, if they terminated the contract; and

(3) the highest interest rate they could earn.

Page 1439

Clarke replied that he thought the Insurance Company could provide such a contract. He suggested that they meet and discuss it.

On August 10, 1978, the doctors met with Clarke. Crecelias and his wife, Sylvia Crecelias, who was also a financial planner, were present as observers. Gregory reiterated the three provisions for which the doctors were looking. Clarke said the insurance company could furnish a contract that would allow the doctors to get back their principal and any interest on it if they withdrew. There would be a slight penalty if the doctors terminated the contract during the first year but not if they terminated after that. Clarke told them that they did not have enough money to qualify for a contract with a guaranteed rate of interest and recommended one with a floating interest rate instead. When the meeting ended, the only item open was the...

To continue reading

FREE SIGN UP