May 31, 2013
WELLS FARGO BANK, N.A., as trustee for BENJAMIN CABAL 2007 INSURANCE TRUST Plaintiff,
AMERICAN NATIONAL INSURANCE COMPANY, a Texas corporation, Defendant. AMERICAN NATIONAL INSURANCE COMPANY, a Texas corporation, Counterclaimant,
WELLS FARGO BANK, N.A., as trustee for BENJAMIN CABAL 2007 INSURANCE TRUST, Counterdefendant.
LARY ALAN RAPPAPORT, PROSKAUER ROSE LLP, Attorneys for Plaintiff and Counter defendant, WELLS FARGO BANK, N.A., as Trustee for BENJAMIN CABAL 2007 INSURANCE TRUST.
JUDGMENT ON COMPLAINT AND COUNTERCLAIM
DEAN D. PREGERSON, District Judge.
WHEREAS, on May 20, 2010, the Renewed Motion for Summary Judgment As To The Complaint and Counter-Claim (the "Summary Judgment Motion") filed by plaintiff and counterdefendant Wells Fargo Bank N.A. as Trustee for Benjamin Cabal 2007 Insurance Trust (the "Insurance Trust") was taken under submission by the Court without oral argument;
WHEREAS, on August 4, 2010, after full consideration of the points and authorities and evidence submitted in support of and in opposition to the Summary Judgment Motion, including the Declarations filed in support of and in opposition to the Motion, the Exhibits attached thereto, the Court issued its Order (1) Granting in Part and Denying in Part Wells Fargo's Motion for Summary Judgment and (2) Sua Sponte Granting Summary Judgment in Favor of ANICO on its Counterclaim for A Judicial Declaration that the Policy is Rescinded Based on Material Misrepresentations (the "August 4, 2010 Order");
WHEREAS, on September 9, 2010, this Court entered Judgment;
WHEREAS, defendant and counterclaimant American National Insurance Company ("ANICO") appealed that portion of the Court's August 4, 2010 Order holding that the $4, 000, 000 ANICO LTG universal life insurance policy number U0586714 insuring the life of Benjamin Cabal (the "Policy") issued to the Insurance Trust by ANICO had an insurable interest and, further, the August 12, 2009 Order striking from ANICO's Counterclaim allegations seeking to retain part of the premium to offset commissions and overrides that ANICO alleged it had paid;
WHEREAS, in its Memorandum Opinion dated August 10, 2012, the Ninth Circuit affirmed this Court's August 4, 2010 Order finding that the Policy had an insurable interest, but reversed the August 12, 2009 Order granting the motion to strike as procedurally improper and remanded the action;
WHEREAS, in the August 10, 2012 Memorandum Opinion, the Ninth Circuit noted that "the district court may not have considered California Civil Code section 1692, " and stated that "Although ANICO is not entitled to its requested relief, on remand the district court may determine whether, under Section 1692, a consideration of the equities permits ANICO to retain some or all of its incurred costs";
WHEREAS, on May 15, 2013, this Court took under submission without oral argument the Insurance Trust's Motion for the Entry of Judgment Following Appeal and Remand (the "Motion for Entry of Judgment");
WHEREAS, on May 17, 2013, after full consideration of the points and authorities and evidence submitted in support of and in opposition to the Motion for Entry of Judgment, including the declarations filed in support of and in opposition to the Motion for Entry of Judgment and the exhibits attached thereto, the Court issued its Order for Entry of Judgment Following Appeal and Remand (the "May 17, 2013 Order"),
WHEREAS, for the reasons set forth in the August 4, 2010 Order affirmed by the Ninth Circuit and the May 17, 2013 Order,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. Judgment is hereby entered in favor of ANICO on the Insurance Trust's Complaint for declaratory relief;
2. Judgment is hereby entered in favor of the Insurance Trust on ANICO's Counterclaim for a judicial declaration that the Policy is void ab initio;
3. Judgment is hereby entered in favor of ANICO on ANICO's Counterclaim for a judicial declaration that the Policy is rescinded based on material misrepresentation; and
4. ANICO is hereby ordered to return to the Insurance Trust the entire $593, 868.28 in premiums paid to ANICO for the Policy, together with prejudgment interest at the California legal rate of 7% per annum from April 20, 2009 or, if a premium was paid after April 20, 2009, from the date of payment, without any offset.