United States District Court, W.D. Wisconsin
ANTHONY P. BRZEZINSKI and ANTHONY P. BRZEZINSKI REVOCABLE TRUST, Plaintiffs,
JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant.
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
a civil removal action in which the plaintiffs, Anthony P.
Brzezinski and Anthony P. Brzezinski Revocable Trust, seek
rescission of a life insurance policy issued by defendant
Jackson National Life Insurance Company in 1997. Plaintiffs
contend that defendant violated a state administrative
provision that in 1997 required insurers to notify a
policyholder that he or she had 20 days to return the policy
after delivery for a full refund of all premiums paid on the
policy. Although the policy contains this notice,
plaintiffs insist they never received a copy of the policy
when it was issued, and that therefore they can retroactively
invoke their right to return the policy and obtain a full
refund of 20 years' worth of premiums totaling $567, 840.
the court accepts plaintiffs' claim that they did not
receive a copy of the policy until 2016, plaintiffs cannot
recover on their claim. The reasons are legion: Plaintiffs
cannot bring a private cause of action to enforce
Wisconsin's insurance regulations; plaintiffs were not
the owners of the policy when it originally issued;
plaintiffs' have not alleged any misrepresentations of
fact by defendant; and, plaintiffs acknowledged and
benefitted from the policy prior to bringing this lawsuit.
Accordingly, the court is granting summary judgment to
defendant and denying plaintiff's cross-motion.
material facts are largely undisputed. In 1997, defendant
Jackson National Life Insurance Company (JNL) issued a $750,
000 life insurance policy on the life of plaintiff Anthony B.
Brzezinski, who then was 69 years old. The policy had a
maximum term of 31 years with a $750, 00 death benefit. The
policy was a form of a whole life policy, the cost of which
was adjusted annually based on actuarial calculations and
interest rates. It guaranteed a monthly premium of $2, 535
for at least 15 years. In addition to providing a death
benefit of $750, 000, the policy built cash value, meaning
that the owner could take loans against it and use it as
owners of the policy were Brzezinski's brother Bernard
and his nephew, Paul Stankowski. Ownership changed when the
plaintiff Trust was created in 2003 and took sole ownership
in 2004. Anthony Brzezinski has never owned the policy, but
for nearly 20 years he paid the monthly premiums.
January 2016, JNL advised Brzezinski that it was increasing
his monthly premium from $2, 535 to $10, 000. Dismayed at
this large jump, Brzezinski filed a complaint with
Wisconsin's Office of the Commissioner of Insurance,
asserting that he was not aware from his agent or the policy
that his premiums would increase, and requesting that JNL
maintain his monthly premiums at the original rate. In
response, JNL offered Brzezinski an endorsement to the policy
that would have allowed him to continue paying $2, 535
monthly premiums for the life of the policy. Brzezinski
refused to sign the endorsement. The policy subsequently
early 2017, Brzezinski and the Anthony P. Brzezinski
Revocable Trust, for which Brzezinski is sole trustee and
which is listed as the owner of the policy, filed a lawsuit
seeking rescission of the life insurance
policy. Plaintiffs contend that they are entitled
to rescission because Brzezinski did not receive a copy of
the policy in 1997. Plaintiffs' claim for rescission is
grounded solely on Wis. Admin. Code Ins. §
2.07(6)(a)(4), which in 1997 required that an insurer selling
a replacement policy through an agent must:
Guarantee to the policyholder at least a 20-day right to
return the policy after delivery for a full refund of
premium, and provide a written notice attached to, or as part
of, the first page of the policy informing the policyholder
of this right.
Code § Ins. § 2.07(5)(a)(4)(d) (1997).
allege that JNL violated this provision by not providing
Brzezinski with a copy of the policy when it was issued in
1997; therefore, they argue, Brzezinski was not provided with
notice of his right to return the policy and receive a
refund. According to plaintiffs, this failure now entitles
them, 20 years later, to return the policy for a full refund
of all premiums paid. Plaintiffs are mistaken.
initial observation, Brzezinski's claim that he never
received a copy of the policy is, at best, implausible. Mark
Henry, the insurance agent who sold the policy, avers that he
hand-delivered a copy of the policy to Brzezinski at his
home, which was Henry's customary practice for all life
insurance policies that he sold then. Dtk. 27, ¶18.
Brzezinski, on the other hand, does not recall any of the
circumstances surrounding the application and issuance of
this policy other than his belief that he obtained it at the
urging of his accountant. Brzezinski admits that he never
asked anyone how life insurance worked in general and he
never asked anyone any questions about this particular policy
until the instant dispute arose over the premium hike.
Brzezinski admits that he did not read or pay attention to
policy-related documentation provided by JNL; in fact, he
routinely threw away correspondence from JNL without reading
it. All of this being so, whether Brzezinski actually
received a copy of the policy in 1997 is a disputed fact. It
is, however, immaterial to the outcome. Plaintiffs' claim
fails for a number of other reasons, none of which turns on
any disputed fact.
starters, Brzezinski has never owned the policy, and
the Trust did not become its owner until 2004. Indeed, the
Trust, which was established on December 18, 2003, did not
exist at the time the policy was issued in 1997. For reasons
that no one recalls with certainty, the owners of the policy
until the Trust took ownership in 2004 were Brzezinski's
brother Paul and nephew Bernard. Wis. Admin. Code § Ins.
2.07 required that notice be provided to “the
policyholder, ” which was neither Brzezinski nor the
case, even if plaintiffs could establish that they were
entitled to receive notice under Section 2.07, they cannot
assert a private right of action against JNL under that
provision. As other courts in this circuit have recognized,
“the statutes and regulations of Wisconsin's
insurance industry do not create a private right of
action.” Van Den Heuvel v. AI Credit Corp.,
No. 12-C-0327, 2014 WL 12651232, *11 (E.D. Wis. Apr. 11,
2014) (citing Kranzush v. Badger State Mut. Cas.
Co., 103 Wis.2d 56, 76-82, 307 N.W.2d 256 (1981)).
N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d
287, 302 (7th Cir. 1992) (“Wis. Stat. §
601.64(3)(c) and (4) set out penalties for transgressions
against insurance statutes and rules; damages in private
actions are not among them.”); Mohs v. Metro. Life
Ins. Co., No. 00-C-0543-C, 2000 WL 34236003, at *1 (W.D.
Wis. Nov. 24, 2000) (“Nothing in Wis.Stat. §§
610.21or 180.1502 (formerly, § 180.847) suggests that
these statutes create private rights of action, that is,
rights that would accrue to an individual and allow the
individual to sue for violations of the right.”);
Duir v. John Alden Life Ins. Co., 573 F.Supp. 1002,
1010 (W.D. Wis. ...