In an October 28, 2010 decision by Justice Bucaria, the Court considered motions to dismiss the complaint for failure to state a claim and statute of limitations. The case arises out of plaintiff’s exchange of a whole life insurance policy issued by United States Life Insurance Company for a Flexible Premium Variable Universal Life insurance policy issued by Nationwide Insurance on November 29, 2001. While the death benefit under the United States Life policy was fixed at $125 000, the death benefit for the Nationwide policy varies with the investment experience of the policy. The exchange of the policies was handled by defendant Moss, who was at the time an insurance agent with defendant David Lerner Associates. Plaintiff claims he requested a whole life policy from defendants with a $125 000 death benefit equivalent to the one he then had with United States Life, namely, that he wanted a similar replacement whole life policy with a different company. He alleges that defendants made the change to a variable premium life insurance policy without his knowledge or consent and he did not learn of the change until March 18, 2009.
The Court granted defendants David Lerner Associates and Martin Lerner’s motion to dismiss the breach of contract and conversion causes of action based on statute of limitations, but denied the motion as to the fraud and misrepresentation claims. As to defendants’ motion to dismiss for failure to state a claim, the Court granted the motion as to claims for forgery, collusion and violation of Insurance Department regulations, but denied that branch as to the fraud and misrepresentation claims. The Court also denied plaintiff’s cross-motion for summary judgment.