4 A “ ‘living trust mill’ ” involves “salespeople, posing as experts in estate planning, ngage[ing] in the unlawful practice of law, advis[ing] senior citizens to establish a living trust, and to invest in . . . annuities.” (People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, 1263.)
(p12) - Pantaleoni testified that he understood that it was unlawful to use pretext interviews to sell annuities, but said he did not know that it is unlawful to use a trust mill to sell an annuity, nor did he understand what constituted a
trust mill.
(p23) - NWL’s compliance manuals were consistent with industry practice. Pantaleoni’s conduct did not constitute a trust mill because it was not a repetitive practice. “The classic trust mill situation is senior seminars for trust services and everybody walks out with an annuity.” Pantaleoni met with Williams not to sell an annuity but on learning his situation thought he might benefit from an annuity.
2022 0304 (Date Filed) - LC - Williams v. National Western Life Insurance - Opinion on Transfer, Appeals Court - 52p
2021 0611 (Date Filed) - LC - Williams v. National Western Life Insurance, APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions. - 38p
APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions.
National Western Life Insurance Company (NWL) appeals from a jury verdict holding the company liable for negligence and elder abuse arising from an NWL annuity sold to Barney Thomas Williams by Victor Pantaleoni, an independent agent.
Elder Abuse
NWL contends it did not financially abuse Williams within the meaning of the elder abuse statute.
Williams counters that substantial evidence supports the jury’s finding that NWL was directly liable to Williams for financial abuse.
We agree with NWL.
The evidence of elder financial abuse Williams presented does not fall within the scope of the statute.
To conclude otherwise would transform every dispute between a person over 65 regarding the conduct of an independent agent into an elder abuse action
against an insurer.
def....Elder Abuse
In Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, the court held it was not “wrongful use” of property for a commercial lender to lend money, take collateral and foreclose on collateral when a debt is not paid. (Id. at p. 528.) “[A] lender does not engage in financial abuse of an elder by properly exercising its rights under a contract, even though that conduct is financially disadvantageous to an elder.” (Paslay, supra, 248 Cal.App.4th at p. 657, citing Stebley, supra, at pp. 527-528.)
By the same token, it is not wrongful use for an insurance company to accept the premium for an annuity, issue the annuity, and deduct the surrender charge specified in the terms of the annuity policy when the annuitant demands early surrender. There was no evidence that NWL, in accepting a premium and issuing an annuity or processing a surrender request and assessing a surrender charge, knew or should have known of Pantaleoni’s fraudulent conduct, i.e., that Pantaleoni had deceived Williams into applying for the first annuity when he only wanted a revision to a living trust and had Williams sign a blank document to use to forge letter of instruction directing NWL to reissue the second annuity after Williams cancelled the first one. For the same reasons, this evidence did not show wrongful use by NWL within the meaning of the elder abuse statute. The elder abuse statute does not impose a duty to investigate even by a financial institution mandated to report suspected elder financial abuse to local law enforcement or adult protective services. (Welf. & Inst. Code, § 15630.1, subd.
For the same reasons, this evidence did not show wrongful use by NWL within the meaning of the elder abuse statute. The elder abuse statute does not impose a duty to investigate even by a financial institution mandated to report suspected elder financial abuse to local law enforcement or adult protective services. (Welf. & Inst. Code, § 15630.1, subd. (e)(1)
[“The mandated reporter of suspected financial abuse of an elder for dependent adult is not required to investigate any accusations”].) Much less does an insurance company, which is not a mandated reporter, have to duty investigate under the statute.
Assuming NWL had monitored Pantaleoni as Williams suggested, there was no evidence showing that NWL knew or should have known of Pantaleoni’s fraud. (Das, supra, 186 Cal.App.4th at p. 745.) For example,...
C. Motion for Judgment Notwithstanding the Verdict
NWL raised agency and wrongful use issues as grounds for judgment notwithstanding the verdict. We conclude the trial court should have granted the motion for judgment notwithstanding the verdict.
Motion for judgment notwithstanding the verdict.
“ ‘The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict is rendered without foundation.’
Denial of a motion for judgment notwithstanding the verdict rests largely in the discretion of the trial judge. (Sukoff, supra, at p. 744.) However, when the evidence fails to support an essential element of a cause of action, the judgment cannot stand. (Ibid.) Here, as discussed, the record failed to support the duty of care element of Williams’ negligence claim and wrongful use required to support his elder financial abuse claim.
Therefore, we will reverse the judgment and direct the trial court to enter judgment in favor of NWL.