Blau v. Allianz Life Ins. Co. of N. Am.

• Decision Date: 17 August 2015
• Docket Number: No. 14–CV–3202 (NGG)(VMS).,14–CV–3202 (NGG)(VMS).
• Citation: 124 F.Supp.3d 161
• Parties: David BLAU, Trustee of the Zupnick Family Trust 2008 C, Plaintiff, v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant.
• Court: U.S. District Court — Eastern District of New York

124 F.Supp.3d 161

David BLAU, Trustee of the Zupnick Family Trust 2008 C, Plaintiff,

v.ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant.

No. 14–CV–3202 (NGG)(VMS).

United States District Court, E.D. New York.

Signed Aug. 17, 2015.

David Benhaim, Ira S. Lipsius, Phillip M. Manela, Lipsius Benhaim Law, LLP, Kew Gardens, NY, for Plaintiff.

Dawn B. Williams, Roland C. Goss, Carlton Fields Jorden Burt, P.A., Washington, DC, Vitaly David Rivkin, Carlton Fields Jorden Burt, New York, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Plaintiff David Blau ("Blau"), Trustee of the Zupnick Family Trust 2008 C (the "Trust"), brings this action against Defendant Allianz Life Insurance Company of North America ("Allianz North America")¹ seeking declaratory relief concerning a life insurance policy issued by Allianz North America of which the Trust is the owner and beneficiary. Allianz North America has moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 12(b)(6).² (Not. of Mot. (Dkt. 14).) For the reasons discussed below, Allianz North America's motion to dismiss for lack of personal jurisdiction is DENIED; Allianz North America's motion to dismiss for improper service is DENIED; and Allianz North America's motion to dismiss for failure to state a claim is GRANTED WITHOUT PREJUDICE.

I. BACKGROUND

A. Factual Background

1. Facts Alleged in the Complaint

The following facts are alleged in the Complaint, and are taken as true except where otherwise noted.

a. The Policy

Blau alleges that on or about July 5, 2007, Allianz North America issued a life insurance policy with a face value of $8,000,000 on the life of Dora Zupnick (the "Policy"). (Compl. (Not. of Removal (Dkt. 1), Ex. B (Dkt. 1–2)) ¶ 3; see also Policy (Aff. of David Blau in Opp'n to Def.'s Mot. to Dismiss ("Blau Aff.") (Dkt. 15–2), Ex. A (Dkt. 15–3)) at 1 (showing Allianz North America as issuer of Policy).) According to Blau, the Policy was "delivered" in New York. (Compl.¶ 5.) The Trust is the owner and beneficiary of the Policy. (Id. ¶ 6.) Blau is the trustee of the Trust. (Id. ¶ 1.) Zupnick was alive as of the filing of the Complaint, and therefore no demand on the Policy has been made. (Id. ¶ 35.)

Blau alleges that Allianz North America has claimed that the Policy has lapsed (id. ¶ 7), and seeks a contrary declaration from this court "that the Policy is in full force and effect and has been continuously in full force and effect since the Policy was issued without any lapses in coverage" (id. ¶ 8). Specifically—although, as discussed below, without much in the way of the particulars—Blau alleges that Allianz North America miscalculated the premiums due under the Policy and New York law (id. ¶¶ 9–15), transmitted a deficient notice of cancellation (id. ¶¶ 16–19), and otherwise failed to comply with the terms of the Policy and "applicable law (id. ¶¶ 20–29).

Blau further alleges that Allianz North America is estopped from canceling the Policy, and that Blau is, in fact, "prepared and has always been prepared to pay any outstanding premiums on the Policy...." (Id. ¶¶ 30–32.)

b. Jurisdictional Allegations

Blau does not allege either his own citizenship or the citizenship of the Trust. He alleges that Zupnick (the insured) is a citizen of New York residing in Brooklyn (id. ¶ 4), and that Allianz North America is a Minnesota corporation "engaged in the business of selling insurance products insuring the lives of citizens of the State of New York" (id. ¶ 2; see alsoDecl. of Dawn B. Williams in Supp. of Allianz North America's Mot. to Dismiss ("Williams Decl.") (Dkt. 14–2), Ex. 1 (Dkt. 14–3) (declaring that Allianz North America is incorporated in Minnesota).)

2. Additional Factual Materials Submitted by Parties

Both parties submitted additional factual materials in connection with the motion to dismiss.³

Cynthia Rice, Senior Operations Manager for Allianz North America, declared that between 2008 and the present, Allianz North America has not maintained any offices in New York State; rather, business activities in New York State under the "Allianz" name are conducted by Allianz Life Insurance Company of New York ("Allianz New York"), a distinct corporate entity. (Decl. of Cynthia Rice in Supp. of Allianz North America's Motion to Dismiss ("Rice Decl.") (Dkt. 14–6) ¶ 3.) During that same time period, Allianz North America's agents and employees were not authorized to solicit or sell life insurance policies in New York. (Id. ¶ 4; see also Allianz Compliance Guide to Successful Business (Rice Decl., Ex. 2 (Dkt. 14–8)) at 11 ("It is never acceptable for an agent to ... [s]olicit or sell an Allianz Life Insurance Company of North America product in New York. Only Allianz Life Insurance Company of New York products may be sold in New York.").) Indeed, Allianz North America is not licensed to do business in New York. (See Apr. 24, 2014, Ltr. from N.Y. State Dep't of Fin. Servs. (Not. of Removal, Ex. B) at ECF page 2 ("Allianz Life Insurance Company of North America formerly known as North American Life and Casualty Company ... is not authorized to do business in this State...."); see also Williams Decl., Ex. 2 (Dkt. 14–4) (search results of insurance companies licensed by New York Department of Financial Services ("DFS"), listing Allianz New York but not listing Allianz North America).)

Both parties submitted the Policy (referenced throughout the Complaint) in connection with the pending motion. (See Policy (Rice Decl., Ex. 4 (Dkt. 14–10); Blau Aff., Ex. A (Dkt. 15–3)).) On the Policy application, Zupnick listed her place of residence as Brooklyn, New York, and listed the Trust's address as Brooklyn, New York. (See Policy at ECF page 12.) The Policy itself also references the State of New Jersey in several ways.⁴ The letters "NJ" appear in the lower left-hand corner of almost all pages of the Policy. (Id. ) According to Ms. Rice, "[w]hen ‘NJ’ is used as a prefix or suffix to a policy form number, that indicates that the policy was issued in New Jersey." (Rice Decl. ¶ 11.) Although Plaintiff alleges in the Complaint that the Policy was "delivered" in New York (see Compl. ¶ 5), documentary evidence submitted by the parties appears to demonstrate that the Policy was delivered in New Jersey,⁵as attested by Zupnick on the Policy itself. (See Life Insurance Policy Worksheet (Rice Decl., Ex. 3 (Dkt. 14–9)) at 1, 5 (listing "Delivery state" as "NJ" and signed by Zupnick); Policy at ECF page 20 (indicating that Zupnick signed Policy application in Hackensack, New Jersey, on April 11, 2008); Illustration Prepared for Zupnick, Dora (Rice Decl., Ex. 5 (Dkt. 14–11)) at 1, 5 (sales materials prepared by agent and signed by Zupnick, indicating "State" as "New Jersey"); Statement of Policy Cost and Benefit Information (Rice Decl., Ex. 7 (Dkt. 14–13)) at 1, 5 (summary of Policy prepared by agent and signed by Zupnick, indicating "State" as "New Jersey"); see also Policy Delivery Invoice (Rice Decl., Ex. 1 (Dkt. 14–7)) at 1 (letter from Innovative Brokers Corp. to agent, noting that "[t]he State of Sale for this Contract is New Jersey; any Signatures for Delivery Requirements should be signed in New Jersey to be acceptable").)

Zupnick applied for the policy through a broker and an insurance agent, both of whom were located in New York. (See Blau Aff. ¶ 4; see also Policy Delivery Invoice at 1 (listing New York address for Innovative Brokers Corp., and listing New York address for Abraham Friedman, Zupnick's agent).) Allianz North America routinely mailed invoices and grace notices to the Trust's address in New York. (See Blau Aff. ¶ 6; see also, e.g., Jan. 9, 2011, Not. of Premium Due (Blau Aff., Ex. C (Dkt. 15–5)); Mar. 10, 2011, Grace Period Not. (Blau Aff., Ex. E (Dkt. 15–7)); Apr. 9, 2011, Lapse Not. (Blau Aff., Ex. F (Dkt. 15–8)).) The Trust mailed premium payments to Allianz North America from New York, in the form of checks drawn upon a New York bank. (See Blau Aff. ¶ 8; see also, e.g., Check No. 191 (Blau Aff., Ex. G (Dkt. 15–9)).) Agents acting on behalf of Blau frequently called Allianz North America via telephone from New York to inquire about premiums due. (See Blau Aff. ¶ 7.) And, on one occasion, Allianz North America sent investigators to New York to interview Zupnick concerning Zupnick's Policy application. (Id. ¶ 10.)

B. Procedural History

1. Removal from New York Supreme Court

Blau originally filed the instant action in New York Supreme Court, Kings County, Index No. 502877/2014. (See Not. of Removal.) On May 22, 2014, Allianz North America removed the action to this court on the basis of diversity jurisdiction. (See id. at 1–4.) During a pre-motion conference held on July 1, 2014, the court granted Allianz North America leave to file its motion to dismiss. (See July 1, 2014, Min. Entry.)

2. Service of Process

Allianz North America received notice of Blau's state court action by mail from the Minnesota Secretary of State on April 22, 2014. (See Decl. of Sandra Gudvangen in Supp. of Allianz North America's Not. of Removal ("Gudvangen Decl.") (Dkt. 2) ¶ 3; Not. of Removal, Ex. A (Dkt. 1–1).) Allianz North America also received notice of Blau's state court action by mail from DFS on April 28, 2014. (See Gudvangen Decl. 4; Not. of Removal, Ex. B (Dkt. 1–2).) As of September 2, 2014, the date on which the motion to dismiss was filed, "Allianz [North America] ha[d] not received from the plaintiff in this matter, via certified or registered mail with return receipt requested, any notice or a copy of process served upon the New York Department of Financial Services." (Rice Decl. ¶ 5.)

However, according to Blau's counsel, as of August 8, 2014 (the day Blau served his opposition brief), "[Blau] [was] in the process of re-serving the summons and complaint upon Allianz." (Decl. of Alexander J. Sperber in Opp'n to Def.'s Mot. to Dismiss (Dkt. 15–1) ¶ 2.) Indeed, on August 21, 2014, Blau electronically filed a letter dated ...