6 Mofty Shulman (Pro Hac Vice to be filed)

Transcription

1 I BOlES, SCHILLER & FLEXNER LLP Alan B. Vickery (Pro Mac Vice to be Filed) 2 avickery@bsfl1p.com John F. LaSalle (Pro Hac Vice to be Filed) 3 j1asa11ebsfllp.com 575 Lexington Avenue, 7th Floor 4 New York, New York 022 Telephone: Facsimile: Mofty Shulman (Pro Hac Vice to be filed) 7 mshulman@bsfllp.com 333 Main Street Armonk, New York 504 $ Telephone: facsimile: Sean P. Rodriguez (SBN 22437) srodriguezbsfllp.com 1999 Hamson Street, Suite 900 ii Oakland, California 9412 Telephone: facsimile: Attorneys for Defendant John Hancock Life Insurance Company (U$.A.) o z C) U SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA BARBARA LARSON, Individually and On ) Case No. RG Behalf of All Others Similarly Situated, ) ) 1$ Plaintiff, ) DEFENDANT S ANSWER AND 19 ) AFFIRMATIVE DEFENSES vs. ) 20 ) Date: NONE SET JOHN HANCOCK LIFE INSURANCE ) Time: NONE SET 21 COMPANY (U.S.A.), ) Department: 30 ) Judge: Hon. Brad Seligman 22 Defendant. ) 23 Trial Date: None Set ) Complaint Filed: April 29, $ DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG813$03

2 2 3 Defendant John Hancock Life Insurance Company (U.S.A.) ( John Hancock ) hereby answers the Complaint of Plaintiff Barbara Larson ( Plaintiff or Larson ) filed April 29, 20, (the Complaint ) as follows: 4 INTRODUCTION 5 1. John Hancock admits that Plaintiff purports to bring this action as a class action 7 on behalf of members of an alleged class of John Hancock policyholders, but denies that Plaintiff has brought a proper class action and denies that Plaintiff is entitled to any relief from John $ Hancock. John Hancock denies the remaining allegations in paragraph z states that the copy of the policy attached to the Complaint as Exhibit A is stamped DUPLICATE and is not a full, accurate, and complete copy of Plaintiffs policy. John Hancock denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph John Hancock admits that Plaintiff purports to bring this action as a class action under the California Code of Civil Procedure, but denies that Plaintiff has brought a proper class 22 action and denies that Plaintiff is entitled to any relief from John Hancock. John Hancock denies the remaining allegations in paragraph For ease of reference, John Hancock uses the same headings as contained in the Complaint, but such use should not be deemed an admission of anything stated or implied in those headings. If 27 and to the extent that the headings contained in the Complaint are deemed to be allegations, John 28 Hancock denies those allegations. 1 DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG813803

3 PARTIES 2. John Hancock is without knowledge or information sufficient to form a belief as 3 to the allegations in paragraph John Hancock admits that it is a life insurance company organized and existing 5 under the laws of Micigan and that its principal place of business is Boston, Massachusetts. JURISDICTION AND VENUE 7 8. John Hancock admits that it issued Policy No to Plaintiff, and that 8 Plaintiff represented that she resided in California at the time that the policy was issued. John 9 Hancock states that at the time that the policy was issued, Plaintiff resided in California. John Hancock refers to Plaintiffs policy for its true, complete, and accurate terms. The remainder of 11 Paragraph 8 states a legal conclusion for which no response is required Paragraph 9 states a legal conclusion for which no response is required. 13. John Hancock admits that its principal place of business is Boston, Massachusetts. 14 John Hancock states that it holds an active business registration with the California Secretary of State, with a registered service agent in Sacramento, California. John Hancock admits that life insurance policies issued by John Hancock are sold and have been sold in Alameda County and 17 further states that John Hancock contracts with insurance agents who are authorized to sell life 18 insurance products in Alameda County. John Hancock denies the remaining allegations in 19 paragraph, except to the extent that it states a legal conclusion, for which no response is 20 required. 21 GENERAL ALLEGATIONS John Hancock admits that Plaintiff purchased the policy attached to the Complaint 23 as Exhibit A. John Hancock states that John Hancock Variable Life Insurance Company merged 24 with John Hancock Life Insurance Company into John Hancock Life Insurance Company 25 (U.S.A.). John Hancock refers to Plaintiffs policy for its true, complete, and accurate terms. 2 John Hancock denies the remaining allegations in paragraph John Hancock admits that according to its records the owner of policy number fv is Barbara Larson and that John Hancock has treated Barbara Larson as the owner of 2 DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG813$03

4 the policy, which is in force. The remainder of paragraph 12 states a legal conclusion for which 2 no response is required John Hancock admits that John Hancock Variable Life Insurance Company 4 merged with John Hancock Life Insurance Company into John Hancock Life Insurance 5 Company (U.S.A.). John Hancock denies that it is liable to Plaintiff or that Plaintiff is entitled to any relief from John Hancock. John Hancock denies the remaining allegations in paragraph Paragraph 14 states a legal conclusion, for which no response is required denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph $ denies the remaining allegations in paragraph admits that term life insurance policies usually do not contain an investment, savings, or interest 23 component. John Hancock denies the remaining allegations in paragraph denies the remaining allegations in paragraph DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG

5 admits that, in the Complaint, Plaintiff purports to use the term Account Value to refer to the 2 savings component of Plaintiffs policy and the individual policies of each purported class 3 member. John Hancock denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate 5 terms. John Hancock denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate 13 terms. John Hancock denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate z 15 terms. John Hancock denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate 17 terms. John Hancock denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate 19 terms. John Hancock denies the remaining allegations in paragraph John Hancock refers to Plaintiffs policy for its true, complete, and accurate 21 terms. John Hancock denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG

6 denies the remaining allegations in paragraph z 15 1< 17 1$ 19 denies the remaining allegations in paragraph denies the remaining allegations in paragraph refers to the document attached as Exhibit B to the Complaint for its true, complete, and accurate terms. John Hancock denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph denies the remaining allegations in paragraph 3$ denies the remaining allegations in paragraph DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG

7 denies the remaining allegations in paragraph 40, except to the extent that it states a legal 2 conclusion, for which no response is required John Hancock denies the allegations contained within paragraph 41, except to the John Hancock denies the allegations contained within paragraph 42, except to the 7 CLASS ALLEGATIONS John Hancock admits that Plaintiff purports to bring this action on behalf of a 9 class, but denies that this action can properly be pursued or maintained as a class action, that Plaintiff is a qualified class representative, and that class relief is available from John Hancock John Hancock denies the allegations contained within paragraph 44, except to the John Hancock denies the allegations contained within paragraph 45, except to the John Hancock denies the allegations contained within paragraph 4, except to the John Hancock denies the allegations contained within paragraph 47, except to the John Hancock denies the allegations contained within paragraph 48, except to the John Hancock denies the allegations contained within paragraph 49, except to the John Hancock denies the allegations contained within paragraph 50, except to the John Hancock denies the allegations contained within paragraph 51, except to the John Hancock denies the allegations contained within paragraph 52, except to the 28 DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RGI$ 13803

8 z John Hancock denies the allegations contained within paragraph 53, except to the FIRST CAUSE OF ACTION 4 (Breach of Contract Applied Monthly Rate and Mortality-Based Rate Provisions) John Hancock realleges and incorporates its responses to the paragraphs above as if fully set forth herein John Hancock admits that according to its records the owner of policy number fv a is Barbara Larson and that John Hancock has treated Barbara Larson as the owner of the policy. John Hancock admits that Plaintiff purports to bring this claim on behalf of both herself and a class of people who purchased life insurance policies from John Hancock. John Hancock denies that this action can properly be pursued or maintained as a class action, that Plaintiff is a qualified class representative, and that class relief is available from John Hancock. 5. Paragraph 5 states a legal conclusion, for which no response is required. 57. John Hancock denies the allegations contained within paragraph 57, except to the 58. John Hancock denies the allegations contained within paragraph 58, except to the 59. John Hancock denies the allegations contained within paragraph 59, except to the John Hancock denies the allegations contained within paragraph 0, except to the John Hancock denies the allegations contained within paragraph 1, except to the SECOND CAUSE OF ACTION 25 (Breach of Contract Maintenance and/or Expense Charge Provisions) 2 2. John Hancock realleges and incorporates its responses to the paragraphs above as 27 if fully set forth herein DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG

9 3. John Hancock denies the allegations contained within paragraph 3, except to the John Hancock denies the allegations contained within paragraph 4, except to the John Hancock denies the allegations contained within paragraph 5, except to the 7 THIRD CAUSE OF ACTION $ (Breach of Contract Expectations of Future Mortality Experience Provisions) 9. John Hancock realleges and incorporates its responses to the paragraphs above as if fully set forth herein denies the remaining allegations in paragraph $. John Hancock denies the allegations contained within paragraph $, except to the John Hancock denies the allegations contained within paragraph 9, except to the 17 1$ 70. John Hancock denies the allegations contained within paragraph 70, except to the FOURTH CAUSE OF ACTION 21 (Declaratory and Injunctive Relief) John Hancock realleges and incorporates its responses to the paragraphs above as 23 if fully set forth herein Paragraph 72 states a legal conclusion, for which no response is required John Hancock denies the allegations contained within paragraph 73, except to the Paragraph 74 seeks a legal conclusion, for which no response is required Paragraph 75 seeks a legal conclusion, for which no response is required. 8 DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG813$03

10 18 1 PRAYER FOR RELIEF 2 No response to the Prayer for Relief is required as no new allegations are contained 3 therein. To the extent necessary, John Hancock denies that Plaintiff is entitled to any relief. 4 AFFIRMATIVE DEFENSES 5 The affirmative defenses below are directed to Plaintiffs, by which is meant both Plaintiff and members of any purported class. 7 FIRST AFFIRMATIVE DEFENSE 8 Plaintiffs lack standing to bring their claims. 9 SECOND AFFIRMATIVE DEFENSE Plaintiffs have waived their claims against John Hancock. 11 THIRD AFFIRMATIVE DEFENSE 12 Plaintiffs claims are barred by the statute of limitations, ladies, and the statute 13 FOURTH AFFIRMATIVE DEFENSE 14 Plaintiffs are barred from asserting or recovering any damages or receiving any relief 2 15 because of the doctrine of equitable estoppel. of repose. FIFTH AFFIRMATIVE DEFENSE 17 The claims asserted in the Complaint are barred or limited with respect to any policies that are void or voidable under applicable public policy or state law. 19 SIXTH AFFIRMATIVE DEFENSE 20 Plaintiffs claims against John Hancock are barred, in whole or in part, because Plaintiffs 21 have suffered no damages. 22 SEVENTH AFFIRMATIVE DEFENSE 23 John Hancock is not liable because Plaintiffs ratified or otherwise acquiesced to the 24 actions that are the subject of the Complaint. 25 EIGHTH AFFIRMATIVE DEFENSE 2 Plaintiffs claims are barred by the voluntary payment doctrine. 27 NINTH AFFIRMATIVE DEFENSE 28 Plaintiffs have failed, in whole or in part, to mitigate any alleged damages. 9 DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG813803

11 TENTH AFFIRMATIVE DEFENSE 2 Plaintiffs are barred from asserting or recovering any damages or receiving any relief 3 because Plaintiffs released their claims. 4 ELEVENTH AFFIRMATIVE DEFENSE 5 7 John Hancock has not knowingly or voluntarily waived any applicable affirmative defense and reserves the right to assert, and rely upon, such additional affirmative defenses to the Complaint as may become available or apparent as discovery progresses in this action. D 8 II 9 II :< II z z wq 12 II 13 Respectfully submitted, - Z 15 DATED: June, 20 BOlES, SCHILLER & FLEXNER LLP o By Alan B. Vickery (Pro Hac Vice to be filed) John F. LaSalle (Pro Hac Vice to be filed) 575 Lexington Avenue New York, New York 022 Phone: fax: Motty Shulman (Pro Hac Vice to be Filed) 333 Main Street Armonk, New York 504 Phone: fax: Sean P. Rodriguez (SBN 22437) 1999 Harrison Street, Suite 900 Oakland, California 9412 Telephone: facsimile: Attorneys for Defendant John Hancock L7 Insurance Company (U.S.A.) DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES CASE NO. RG