United States District Court, D. Delaware
THE OLGA J. NOWAK IRREVOCABLE TRUST, Plaintiff,
VOYA FINANCIAL, INC.; SECURITY LIFE OF DENVER INSURANCE COMPANY; Defendants.
before the court is a motion filed by Plaintiff, The Olga J.
Nowak Irrevocable Trust, to remand this action to the
Superior Court of the State of Delaware pursuant to 28 U.S.C.
§ 1447 on the ground that diversity of citizenship is
lacking. (D.I. 12).
18, 2017, Plaintiff filed a civil action in the Delaware
Superior Court against defendant Voya Financial, Inc.,
asserting several state law claims based on Voya's
failure to pay a death benefit purportedly owed under a life
insurance policy. (D.I. 1-2). On September 6, 2017, Plaintiff
amended its complaint to add a subsidiary of Voya, defendant
Security Life of Denver Insurance Company (collectively with
Voya, "Defendants"). (D.I. 1-4). Security
thereafter removed the action to this court pursuant to 28
U.S.C. § 1441. (D.I. 1). Security contends that this
court has diversity jurisdiction over the matter even though
Plaintiff and Voya are both citizens of Delaware, because
Voya was fraudulently joined. (Id.).
support of its fraudulent joinder assertion, Security
attached the declaration of Jean Weng, Voya's Corporate
Secretary and Deputy General Counsel, to the removal notice.
(D.I. 1-1). In response, Plaintiff has filed a motion to
strike the Weng declaration. (D.I. 16). Plaintiff argues that
the declaration sets forth unsupported facts and conclusions
of law that contradict the allegations in the complaint.
(D.I. 13 at 1). For the reasons set forth below, Plaintiffs
motion to remand is granted, and Plaintiffs motion to strike
is dismissed as moot.
The Insurance Policy
1999, the Nowak family was exploring strategies to preserve
the wealth of Olga J. Nowak, who was then 83 years old. (D.I.
1-4 at ¶ 17). Acting on the advice of Mark Wilcock, an
agent of Southland Life Insurance Company, the Nowak family
established The Olga J. Nowak Irrevocable Trust. The Trust
then purchased a life insurance policy on the life of Ms.
Nowak from Southland. (Id.). The policy had an
annual premium of approximately $250, 000 and a death benefit
of $4 million. (Id. at ¶ 18).
to the amended complaint, at the time Plaintiff purchased the
life insurance policy, Mr. Wilcock represented that the $4
million death benefit would continue to be payable even if
Ms. Nowak lived beyond 100. (D.I. 1-4 at ¶ 18).
Defendants repeatedly confirmed Plaintiffs understanding of
the mechanics of the insurance policy by providing
illustrations on January 3, 2002, March 5, 2004, February 1,
2006, February 7, 2008 and April 9, 2009 that did not show
the death benefit declining or terminating after the attained
age of 100. (Id. at ¶ 19). Instead, the
illustrations showed the policy paying a $4 million death
benefit until Ms. Nowak reached an "end of year
age" of 110. (Zd. at¶20).
2010, however, Mr. Wilcock sent Plaintiff an illustration
prepared by Defendants which ended at an "end of year
age" of 100, not 110. (Id. at ¶ 22).
Plaintiff raised questions about the change in the
illustration and language in the policy regarding the
"surrender value." (Id. at ¶¶
21-24). Mr. Wilcock assured Plaintiff that it was misreading
the policy and that "the death benefit is the surrender
value thus 4M is the surrender value." (Id. at
¶ 23). Separately, Defendants said that their system
"now cannot illustrate past age 100." (Id.
at ¶ 24). In 2011, however, Plaintiff received a policy
illustration which illustrated the policy out to the age of
110. (Id. at ¶ 25). It showed, for the first
time, that after age 100 the death benefit changed from $4
million to the "surrender value," which was a
significantly smaller sum than the death benefit.
(Id. at ¶¶ 25-27).
the position Defendants now take in litigation: the $4
million death benefit was payable only until the
insured's "attained age" of 100. (D.I. 7 at ¶
1)- Once the insured reached the attained age of 100, the
death benefit became the "surrender value." (D.I.
1-4 at ¶ 11; D.I. 7 at ¶ 11). Ms. Nowak passed away
on June 29, 2016, 130 days past the attained age of 100.
(D.I. 1-4 at ¶¶ 11, 31). Thus, Plaintiff is
entitled to the surrender value of $336, 242. (Id.).
Plaintiff, however, has paid over $3 million in premiums.
The Parties' Involvement in the Insurance Policy
before January 2002, Internationale-Nederland Group of the
Hague ("ING") acquired Southland, the company from
whom Plaintiff had purchased the insurance policy.
(See D.I. 12-1, Exs. Al and A2). Two years later, in
October 2004, ING caused its subsidiary, Southland, to merge
into another wholly-owned subsidiary, Security, with Security
as the surviving entity. (Id. at Ex. B). Security is
a Colorado corporation with its principal place of business
in Minnesota. (D.I. 1 at ¶ 10; D.I. 1-4 at ¶ 16).
In 2014, ING changed its name to Voya. (D.I. 1-4 at ¶
2). Voya is a Delaware corporation. (Id. at ¶
complaint alleges that Defendants sent several communications
to Plaintiff on ING letterhead and included various
self-references (used interchangeably) to "Southland
Life Insurance Company," "ING," "ING
Southland Life," and "ING Security Life"
without making any substantive distinction among the entities
and without suggesting that each had not assumed liabilities
under the insurance policy. (D.I. 1-4 at ¶ 2). Plaintiff
makes particular note of an October 1, 2004 communication on
ING letterhead informing policyholders of the merger between
Southland and Security which states: "So, while
Southland Life has merged into Security Life, our commitment
to you is constant, and fulfilling our contractual
obligations to you is our highest priority. ING remains
dedicated to helping its member companies provide first-rate
service, diversified product options, and exceptional
communications to all its customers." (D.I. 12-1, Ex.
B.). That letter directs inquiries for more information to
the 'TNG Service Center" and lists its return
address as the 'TNG Service Center." (Id.).
It also states that requests for forms from Security are to
be directed through the "ING Service Center."
(Id.). Other documents Plaintiff notes are: a March
5, 2004 policy illustration faxed from an ING fax number with
an ING return address stating it is from the "ING
ILLUSTRATIONS DEPARTMENT, Minot Service Center" (D.I.
12-1, Ex. A2); a February 1, 2006 policy illustration faxed
from an ING fax number with an ING return address, stating it
is from "ING," and stating that the policy was
"Serviced by: ING Security Life" (Id. at
Exs. A3 and A4); a February 7, 2008 policy illustration faxed
from an ING fax on ING letterhead, indicating that the policy
is "serviced by: Home Office PO Box 5065, Minot, ND
58702-5085," which is the home office address for ING,
not Security (Id. at Ex. A5); and a July 14,
2015 email enclosing policy illustrations on "Voya
Financial" letterhead, including Voya's address in
Minot, and stating that the illustration was prepared by
"Voya Service Center." (Id. at Ex. A6).
Plaintiff asserts that none of these "entities"-ING
Illustrations Department, ING Security Life, ING Security or
ING Service Center-is registered as a separate corporation
nor as a fictitious name under which any Defendant is
transacting business. (D.I. 12-2).
to 28 U.S.C. § 1441(a), a defendant in a state court
action can remove the case to federal court if the federal
court would have original jurisdiction over that action. This
court has original jurisdiction over "all civil actions
where the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interests and costs, and is between
... citizens of different States." 28 U.S.C. §
1332(a). When a case involves multiple parties, there must be
complete diversity- i.e., "no plaintiff [may] be a
citizen of the same state as any defendant."
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d
412, 419 (3d Cir. 2010). However, the ...