[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No s. 17

- 10189, 17

- 10415

________________________ D.C. Docket No s . 9:13

- cv - 80385

- DLB , 9:13

- cv - 80730

- DLB SUN LIFE ASSURANCE COMPANY OF CANADA, Plaintiff

- Appellee,

versus
IMPERIAL PREMIUM FINANCE, LLC, Defendant

- Appellant.

SUN LIFE ASSURANCE COM PANY OF CANADA, Plaintiff

- Appellant,

versus IMPERIAL HOLDINGS, INC., IMPERIAL PREMIUM FINANCE, LLC, IMPERIAL LIFE FINANCING II, LLC, IMPERIAL LIFE SETTLEMENTS, LLC, I MPERIAL PFC FINANCING, LLC, et al.,

Case: 17-10189 Date Filed: 09/18/2018 Page: 1 of 572 Defendants

- Appellees.

________________________ Appeal s from the United States District Court for the Southern District of Florida

________________________ ( September 18 , 2018) Before MAR TIN , JORDAN , and WALKER , * Circuit Judges WALKER, Circuit Judge: These two appeals arise from dueling lawsuits pitting Sun Life Assurance Company of Canada (“Sun Life”) , a life insurance company, a gainst Imperial Holdings, Inc. and its affiliates (“Imperial”) , a company that offers financing for insureds to pay their monthly premium payments

. Both suits relat e to life insurance policies that were issued by Sun Life to non - parties and that were subsequently acquired by Imperial

. Imperial is therefore a stranger to the insureds , yet , as the owner of the policies , it stands to receive the life insurance benefits
up on the deaths of the insureds

. Sun Life allege s that Imperial’s ownership of the policies violates state law s that are designed to prohibit wagering on human lives , but, more centrally , that Imperial secured the policies through a n unlawful and tortious conspiratorial scheme. Imperial, for its part, contends that its acquisition and ownership of the policies is lawful, and alleges that Sun Lif e’s attempts to

* Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit Court of Appeals, sitting by designation.

Case: 17-10189 Date Filed: 09/18/2018 Page: 2 of 573 interfere with its ownership of and rights under t he policies , including its filing of its lawsuit here , is itself part of Sun Life’s own fraudulent scheme and in breach of the policy contracts. In a series of rulings after consolidating the two cases, the United States District Court for the Southern District of Florida (Dave Lee Brannon, Magistrate Judge ) 1 dismissed all claims in both cases, some at the pleading stage and the remainder at summary judgment. We VACATE in part, AFFIRM in part, and REMAND both cases for further proceedings. BACKGROUND These appeals require us to address several issues surrounding the rights to acquire and own life insurance polic ies that , up on the death of the insured, distribute benefits to an entity that had no specific interest in the continuation of the insured’s life

. In some contexts referred to as “ stranger

- originated life insurance, ” or “STOLI,” courts and lawmakers have been grappling for more than a century with such policies, juggling two competing conc erns: (i) limiting the ability to wager on human life and (ii) promoting the free assign ability of property rights. See Grigsby v. Russell , 222 U.S. 149, 155

– 57 (1911) (Holmes, J. ) (concluding that , despite the wagering concerns , a life insurance policy is akin to

1 Pursuant to 28 U.S.C. § 636(c), the parties consented for a magistrate judge to conduct the proceedings in both cases, including the entry of final judgment. See No. 13

- 80385, Dkt. N o. 88 (S.D. Fla. Nov. 5, 2013) (hereinafter generally, “Dkt. []”).

Case: 17-10189 Date Filed: 09/18/2018 Page: 3 of 574 any other property and may be sold) ; see also Sciarretta v. Lincoln Nat ’l Life Ins.
Co. , 778 F.3d 1205, 1207

– 09 (11th Cir. 2015)

. The life insurance policies subject to these disputes were issued initially to senior citizens by Sun Life but were ultimately procured by Imperial through an affiliate d company that offered loans to the insureds to cover their policy premiums

. As to nearly all of the policies relevant to these cases, 2 Imperial’s ownership came about as follows: (i) a senior citizen applied for and received a life insurance policy from Sun Life, nam ing as the policy beneficiary an irrevocable life insurance trust established for the benefit of his or her spouse and/or c hildren; (ii) the insured secured non

- recourse fi nancing for the payment of the monthly policy premiums from Imperial, with the poli cy serving as collateral; (iii) pursuant to the loan agreements , Imperial was permitted to foreclose on and acquire the

2 Although there is some overlap in the policies that are at issue in these two actions, the set of policies in each case is distinct. Indeed, the parties dispute which specific policies are at issue in each case. Imperial contends that Sun Life’s claims are limited to the 23 policies identified in Sun Life’s operative complaint, Dkt. 231 ¶¶ 2

– 3, but Sun Life contends that “the scope of [its] complaint goes beyond those 23 policies to inc lude at least 64 policies, as [listed] by Imperial in response to Sun Life’s interrogatories.” Dkt. 214 ¶ 2 (sealed). The parties also dispute which claims are at issue in the action brought by Imperial’s affiliate, Imperial Premium Finance, LLC (“IPF”) . IPF identified 29 policies in its complaint, No. 13

- cv 80730, Dkt. No. 1 ¶ 58 (S.D. Fla July 29, 2013), but asserted in opposition to summary judgment that its suit involves 33 policies, Dkt. 472 ¶ 16, the same contention it asserts on appeal, see, e.g. , No. 17

- 10189 Br. of Appellant at 2. Sun Life contends, however, that Imperial failed to support the existence of two of those policies (even though, we note, that one such policy, issued on the life of Robert Good, is included in Sun Life’s complaint). Dkt. 494 ¶ 16. We need not resolve these disputes at this stage.

Case: 17-10189 Date Filed: 09/18/2018 Page: 4 of 575 policy if the borrower defaulted ; and (iv) the borrower default ed , leading Imperial to take ownership of the insured ’ s polic y . Once Sun Life learned of Imperial’s procurement of the policies, it began to question the proprie ty of Imperial’s ownership, both under the insurance contracts and under state and federal law. Sun Life’s doubt s as to the lawfulness of Imperial’s acquisition and owne rship of the policies led to the two competing lawsuits that are the subject s of the instant appeal s . S un Life’s Complaint . Sun Life filed suit in the Southern District of Florida, alleging not just that Imperial’s ownership of the policies violates state law restrictions on the wagering on human life, but, in what Sun Life refers to as the “nucleus” of its suit , that Imperial secured its Sun Life policies through a fraudulent and conspiratorial scheme. No. 17

- 10415 Br. of Appellant at 35. Sun Life alleged that Imperial knew that Sun Life , due principally to profitability

concerns, would not have issue d a life insurance policy if it knew of the applicant’s predetermined intent to use premium financing or to transfer ownership of the policy to a premium finance company , such as Imperial, that would use the policies primarily as an investment vehicle

. Des irous of obtaining profitable Sun Life insurance policies nonetheless, Imperial orchestrated a scheme to obtain them. The premise of Imperial’s alleged scheme rested upon the difference between policies likely to be in effect over a long period (profitable to Sun Life but

Case: 17-10189 Date Filed: 09/18/2018 Page: 5 of 576 not to Imperial) and policies that would likely be paid out in the short term (less profitable to Sun Life but more profitable to Imper ial). Under the scheme, if Imperial were the owner or beneficiary of multiple policies it could decide which ones were more likely to result in an early payout and stop paying premiums on the
rest. The alleged scheme worked as follows. “ A t the core of Im perial’s scheme was a network of insurance producers ” that served as “referral sources for [Imperial’s] premium finance business” by actively “recruit[ing] senior citizens in order to originate life insurance policies that would be funded by Imperial.” Dk t. 150 (“SL SAC”) ¶¶ 34

– 36. The producers, at the direction of Imperial , see SL SAC ¶¶ 34

– 35, “solicited senior citizens through advertisements in periodicals, seminars, flyers, and personal solicitation at senior care centers, hospitals, restaurants, and clubs frequented by senior citizens.” SL SAC ¶ 38. The producers would then assist the senio r citizens in obtaining the requisite medical records and life expectancy reports, which the producer s would submit in the first instance to Imperial for Imperial to “determine whether the proposed senior was suitable for Imperial’s purposes.” SL SAC ¶ 39 (emphasis added)

. If Imperial so concluded, Imperial would then direct the producer s “to move forward with a formal application, . . . typically direct[ing] the producer in selecting the insurer, the insurance product, and the face amount of the policy.” SL SAC ¶ 40.

Case: 17-10189 Date Filed: 09/18/2018 Page: 6 of 577 With each life insurance application submitted to Sun Life , Sun Life required the producers and the proposed insureds to answer certain questions , including whether premium financing wo uld be used to fund the policy. SL SAC ¶ 42. The producers falsely answered those inquiries in the negative, having full knowledge that Imperial had already made the decision internally to pr ovide financing for the insured s ’ premium payments. SL SAC ¶¶ 42

– 44. Although Sun Life paid the producers a commission for their services , the producers were required to turn over those commissions in full to Imperial, who would then remit
to the producers between 10 to 50% of the Sun Life commission. SL SAC ¶ 45.
A fter the policies were issued, Imperial hid from Sun Life the fact that it was making premium payments , which ultimately meant that Sun Life was unaware of Imperial’s procurement of the policies until it was too late for Sun Life to contest it. Imperial accomplished this by “funnel[ing] [the] premium payments through the Bank of Utah and the Family Insurance Trust. ” SL SAC ¶ ¶ 3 58, 392 . The Bank of Utah was a co - trustee of the irrevocable life insurance trusts that served as the ownership vehicles for each of the policies. SL SAC ¶¶ 46

– 47. Although at the policies’ outset there was a sole trustee

— generally a family member of th e insured

— “after the policy was issued Imperial immediately replaced the trust agreement with its own amended and restated trust agreement . . . [that] name[d] Bank of Utah as the co

- trust ee, and virtually eliminated any discretion on the part

Case: 17-10189 Date Filed: 09/18/2018 Page: 7 of 578 of the origi nal trustee to manage the trust assets.” SL SAC ¶ 47. Imperial would deposit the funds for the insureds’ policy payments into an account created at the Bank of Utah ( in the name of the Family Insurance Trust ) , which would then issue the payments to Sun Life, thereby concealing Imperial’s involvement. SL SAC ¶ 48. The Imperial loans were structured such that the borrowers would generally default after two years , allowing for Imperial to foreclose on the loans and take ownership of the insurance policies. Imperial would then “submit[] a policy ownership and beneficiary change request form to Sun Life,” which would be “the first time that Imperial revealed its interest in the policy [to Sun Life] .” SL SAC ¶ 67 . This was no accident, in that it meant Imperial arrived on the scene and acquir ed the policies after the expiration of the contractual two

- year period during which Sun Life could “ contest ” the policies

. See SL SAC ¶¶ 53, 67 ; see also Fla. Stat. § 627.455 (requiring that all insurance contracts “provide that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of 2 years from its date of issue [with certain exceptions]”)

. Consequently, Imperia l’s fraudulent scheme was complete: Sun Life was stuck with less profitable investor

- owned policies that it specifically sought to avoid. In light of these allegations, Sun Life brought seven claims : (i ) violation of the Racketeer Influenced and Corrupt Organiz ations Act (“RICO”), 18 U.S.C.

Case: 17-10189 Date Filed: 09/18/2018 Page: 8 of 579 § 1962 (a), (c); (ii) RICO conspiracy, 18 U.S.C. §1962(d); (iii) fraud; (iv) aiding and abetting fraud; (v) civil conspiracy to commit fraud; (vi) tortious interference with contractual relations; and (vii) declarator y judgment that the policies are void ab initio

. 3 Imperial Premium Finance, LLC ’s Complaint

. Imperial, for its part, not only denied Sun Life’s allegations regarding the lawfulness of Imperial’s acquisition and ownership of the Sun Life policies, it also (through its subsidiary, Imperial Premium Finance, LLC (“IPF”) ) filed suit in the Southern District of Florida , alleging in relevant part that Sun Life’s efforts to challenge Imperial’s ownership of the policies was (i) in breach of the policy agreements and (ii) itself part of Sun Life’s own fraudulent scheme

. 4
IPF’s contract claim alleged that Sun Life breache d two provisions in the policy agreements. First , IPF alleged that Sun Life breached the policies’ “incontestability clause , ” which provide s : After this Policy has been in force during the lifetime of the [ i ] nsured for a period of two years from its Issue date, we [Sun Life] cannot contest it except for non

- payment of [ p ] remiums.

3 The first six counts were brought only against Imperial Holdings, Inc., and the seventh count for a declaratory judgment was brought against all defendants. 4 IPF also brought claims for declaratory judgment, breach of the covenant of good faith and fair dealing, and promissory estoppel. See No. 13

- cv - 80730, Dkt. No. 1 (S.D. Fla. July 29, 2013). IPF voluntarily dismissed its declaratory judgment and promissory estoppel claims prior to s ummary judgment. See Dkt. 194, 212. The district court dismissed IPF’s implied covenant claim at summary judgment

. IPF does not appeal this ruling

.

Case: 17-10189 Date Filed: 09/18/2018 Page: 9 of 5710 Dkt. 472

- 1 at 14. Imperial not only invoked the incontestability c lause as a complete defense t o Sun Life’s affirmative claims ( which were brought more than two years after issuance of the policies ) , it also contended (through IPF ’s lawsuit ) that Sun Life ’s challenges to the policies breach ed the same clause entitl ing IPF to damages. Second , IPF conte nded that Sun Life breached the policies’ “rights

- and

privileges clause , ” which provide s : You [the policyowner] have the sole and absolute power to exercise all rights and privileges under [the Policy] without the consent of any other person

. Dkt. 4 72

- 1 at 16 . IPF ultimately contended that Sun Life interfered with Imperial’s

“ rights and privileges ” under the policies in four ways: (i) refusing to honor requests to name Imperial as a policyowner and beneficiary; (ii) fai ling to provide Imperial with timely notice that a policy was lapsing; (iii) interfering with Imperial ’s ability to assign rights under the policies; and (iv) contesting the policies outside of the contestable period. See Dkt. 471 at 4. IPF alleged that Imperial was harmed by the se breaches because they raised concerns about the propriety of Imperial’s ownership of the policies , which, in several ways, lowered the policies’ value and led to increased costs. Most relevant, IPF contended that the “cloud” placed over the policies by Sun Life’s actions prohibited Imperial from

Case: 17-10189 Date Filed: 09/18/2018 Page: 10 of 5711 using the policies as collateral for certain credit facilities

. See No. 17

- 10189 Br. of Appellant at 9, 14, 33.
IPF ’s fraud claim alleged principally that Sun Life falsely told the policy owners that it would not contest policies beyond the two

- year contestable period despite its hidden intent to contest beyond that period the validity o f any policy financed or acquir ed by Imperial (or any other premium finance compa ny). IPF also asserted a fraudulent omission theory, contending that Sun Life represented in post

- contract communications that the Imperial

- owned policies were in force, active, valid, and incontestable after two years, while omitting its true views to th e contrary . IPF alleged that Sun Life intended by these mis representations to induce “Imperial to continue to pay premiums that Sun Life intended to collect as excess profits and has been scheming to forever keep.” No. 13

- cv - 80730, Dkt. No. 1 ¶
11 5 (S.D. Fla. July 29, 2013). The district court, in a series of rulings after consolidating the two cases, dismissed all the claims in each action. We briefly summarize the relevant rulings. Dismissal of Sun Life’s Claims

. In a December 2014 ruling from the bench, the district court dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6) the following of Sun Life’s claims: (i) RICO conspiracy; (ii) aiding and abetting fraud; (iii) fraud conspiracy; (iv) torti ous interference with contractual

Case: 17-10189 Date Filed: 09/18/2018 Page: 11 of 5712 relations; and (v) declaratory judgment. 5 Dkt. 191

– 92. In a February 2015 ruling on Imperial’s motion for summary judgment, again from the bench, the district court dismissed Sun Life’s remaining claims for (i) RICO and (ii) fraud,

con cluding that those claims are barred by the policies’ incontestability c lause. Dkt. 293 at 18:14

– 19:21. Sun Life appeals the dismissal of each of its seven claims. Dismissal of IPF ’s Claims . In a June 2016 ruling from the bench, the district court dismissed under Fed. R. Civ. P. 12(c) one theory of IPF ’s breach of contract claim, specifically, that Sun Life’s filing of a declaratory judgment claim breached the incontestability c lause. 6 Dkt. 441

– 42. In a September 2016 written ruling, the district court granted Sun Life’s motion for summary judgment, dismissing each of IPF’ s remaining claims , including breach of contract and fraud

. See Sun Life Assurance Co. of Can. v. Imperial Holdings Inc. , 2016 WL 10565 034 (S.D. Fla. Sept. 22, 2016)

. I PF appeals the dismissal only of its breach of contract and fraud claims

.

5 The district court had previously granted Imperial’s motion to dismiss an earlier version of Sun Life’ s complaint, principally because Sun Life failed to plead with particularity an agency relationship between Imperial and its producers. Dkt. 142. 6 The district court had previously denied Sun Life’s motion to dismiss IPF’s complaint under Fed. R. Civ. P. 12(b)(6), rejecting Sun Life’s assertion that it was absolutely immune from IPF’s suit under Florida’s litigation privilege, see infra at 37

– 4 2 . Dkt. 291. Sun Life sought an immediate appeal to this Court under the collateral order doctrine, but we dism issed the appeal for lack of jurisdiction. See Sun Life Assurance Co. of Can. v. Imperial Holdings, Inc. , No. 15

- 10843 (11th Cir. Dec. 17, 2015) (unpublished).

Case: 17-10189 Date Filed: 09/18/2018 Page: 12 of 5713 DISCUSSION Because all of the claims on appeal by both sides were variously dismissed

on motions to dismiss, Fed. R. Civ. P. 12(b)(6), motions for judgment on the pleadings, Fed. R. Civ. P. 12(c), or motions for summary judgment , Fed. R. Civ. P. 56 , w e review each de novo

. Jara v. N úñ ez , 878 F.3d 1268, 1271 (11th Cir. 2018) (12(b)(6)); Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1335 (11th Cir. 2014) ( 12(c) ); Baas v. Fewless , 886 F.3d 1088, 1091 (11th Cir. 2018) ( 56 )

. The standards for reviewing decisions on motions to dismiss and motions for judgment on the pleadings are the same: “whether the count stated a claim for relief.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp. , 305 F.3d 1293, 1295 n.8 (11th Cir. 2002)

. To state a claim, a “complaint must include ‘allegations plausibly suggesting (not merely consistent with)’ the plaintiff’s entitlement to relief.” Lisk v. Lumber One Wood Preserving, LLC , 792 F.3d 1331, 1334 (11th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557 (2007)). In our review, we must accept all facts in the complaint as true and view those facts in the light most favorable to the plaintiff. See Jara , 878 F.3d at 1271

– 72; Perez , 774 F.3d at 1335. To prevail at summary judgme nt, the movant must demonstrate that there is “no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). A “material” fact is

one that “might affect the outcome of the suit under the gover ning law

. ” Baas , 886

Case: 17-10189 Date Filed: 09/18/2018 Page: 13 of 5714 F.3d at 1091 (internal quotation marks omitted). I n reviewing the summary judgment record, we must view the “submitted evidence in the light most favorable to the non

- moving party.” Id

. Turning to the merits, we now explain our decision s to affirm in part, vacate in part, and remand both causes for further proceedings.
I. Law Governing the Policies Prior to separately addressing the parties’ claims, we need to resolve a dispute over which state s ’ laws should be applied in interpreting the relevant policy agreements. Florida law, which controls our choice

- of

- law analysis, see Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487 , 496 (1941), provides that a contract must be interpreted according to t he law of the state of the contract’s execution. See State Farm Mut. Auto. Ins. Co. v. Roach , 9 45 So.2d 1160, 1163 (Fla. 2006). Determining a contract’s state of execution is generally a “fact

- intensive” analysis that looks to the location of the “last act n ecessary to complete [the] contract , ” which is most often the offe ree ’s communication of its acceptance to the offeror

. Prime Ins. Syndicate , Inc. v. B.J. Handley Trucking, Inc. , 363 F.3d 1089, 1092

– 93 (11th Cir. 2004). In dismissing Sun Life and IPF’s claims, the district court conducted no such choice

- of

- law analysis. Sun Life asserts this was in error , but we disagree

. Case: 17-10189 Date Filed: 09/18/2018 Page: 14 of 5715 Sun Life contends that the district court was required, under Florida’s choice

- of

- law rules , to interpret the policies at issue under the laws of the myriad states in which the individual life insurance policies were executed. In doing so, Sun Life points to American United Life Ins urance Co. v. Martinez , 480 F.3d 1043 (11th Cir. 2007) , where we applied Florida’s choice

- of

- law rules to interpret incontestability clauses in life insurance contracts executed outside of Florida. Id.
at 1059

– 60. There , w e affirmed dismissal of the insurers’ claims only after determining which state’s law applied to each policy and how each such state assesses the impact of incontestability clauses on the claims

. Id. at 1059

– 66 . For example, although Ohio law on incontestability clauses precluded one of the insurer’s claim s , id. at 1061

– 62, the same was not true as to California law, which had a potentially relevant exception allowing for circumvention of an incontestability clause, id. at 1063

– 64. Sun Life contends that the district court was required to follow Martinez and de termine which state’s law applied to each life insurance policy and then to subsequently apply that law to the claims in question

. Sun Life’s issue with the district court suffers from a fatal defect: unlike the insurers in Martinez , Sun Life neither provided information regarding contract formation in its pleadings that would have enabled the district court to conduct a choice

- of

- law analysis nor informed the district court which state s ’ law s it believed Case: 17-10189 Date Filed: 09/18/2018 Page: 15 of 5716 applied

. 7 Consequently , Sun Life waived its opportunity for the district court to apply non

- Florida law to the policies at issue. Under our precedents, a party waives its opportunity to rely on non

- forum law where it fails to timely provide

— typically in its complaint or the fir st motion or response when choice

- of

- law matters

— the sources of non

- for um law on which it seeks to rely

. See Stone v. Wall , 135 F. 3d 1438, 1442 (11th Cir. 1998) (per curiam) ( “Foreign law is a fact to be pleaded and proved; and when the contrary is
not alleged, the law of the sister state will be assumed to be the same as Florida law.” ) ( citing Collins v. Collins , 36 So.2d 417 , 417 ( Fla. 1948) ); see also Bethell v.
Peace , 441 F.2d 495, 497 (5th Cir. 1971) (“ [ T ] he party relying on foreign law must plead a nd prove it. [Plaintiff] . . . made no allegations in her pleadings, nor any showing at any point in the litigation, as to what is the relevant [foreign] law. In the absence of any such showing, the district court was entitled to assume that [foreign law] was the same as Florida law.” (citing Movielab , Inc. v. Davis , 217 So.2d 890, 891 (Fla. 3d DCA 1969))

. 8

7 The Martinez plaintiff, unlike Sun Life here, attached to its complaint the relevant insuran ce applications, which specifically noted the location where the applications were signed. See, e.g. , No. 04

- cv - 61143, Dkt. No. 33 at 170

– 74 (S.D. Fla. f iled Mar. 15, 2005) (Gerald Metoyer insurance application, noting it was signed in Riverside, California); see Martinez , 480 F.3d at 1063 (applying California law to Metoyer’s insurance policy because “[h]e signed the application in California”). 8 We are bound by Fifth Circuit decisions issued prior to September 30, 1981. See Bonner v. City of Pritchard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

Case: 17-10189 Date Filed: 09/18/2018 Page: 16 of 5717 Sun Life did not plead non - forum law. Its complaint is not just devoid of a stated intention to rely on non

- Florida law , it also contains almost no facts from which the court could have determined which state’s law might have appl ied to each policy. To be sure , Sun Life’s complaint listed detailed facts about the formation of many of the policies at issue , at times in granular detail, see, e.g. , SL
SAC ¶¶ 55

– 61, but it said very little as to where any of the policy contracts were executed , see generally SL SAC ¶¶ 55

– 348, which is the relevant inquiry under Florida law

. Sun Life also never proffered non

- forum law in opposition to IPF’s claims.
Not only did Sun Life fail to plead non

- forum law, it seemed quite content early in the litigation with the application of Florida law to each of the policies: its primary argument to the district court i n support of its declaratory judgment claim

was that the policies were void ab initio because they lacked an “ insurable interest ” under Florida’s insurable interest statute

. See Dkt. 61 at 18

– 19. At the time , Sun
Lif e likely viewed this as sound strateg y , evidenced by its citations to numerous federal dist rict courts applying Florida law to conclud e that life insurance policies originated by strangers to the insured lacked the statutorily required “ insurable interest. ” Despite the silence of its pleading as to non - forum law , Sun Life contends that it sufficiently raised the issue to the district court by referring to a choice

- of

Case: 17-10189 Date Filed: 09/18/2018 Page: 17 of 5718 law analysis in opp osition to Imperial’s dispositive motions. It relies on the fact that it told the district court a choice

- of

- law analysis was “premature” at the motion to dismiss stage in relation to its declaratory judgment claim, Dkt. 61 at 19

– 20; Dkt

. 160 at 3 n.1; see also Dkt. 182

- 1 at 2

– 3, and that it raised the issue again in opposition to Imperial’s summary judgment motion, assertin g that it was Imperial’s burden to “come forward with the authority” necessary for the

a pplication of out

- of

- state law, Dkt. 215 at 6

– 7 (sealed)

. We disagree that Sun Life ’s general references to a choice

- of

- law analysis in opposition to Imperial’s dispositive motions sufficiently raised the issue with the district court . Sun Life is the party now seeking the application of non - forum law , yet it repeatedly abdicated its responsibility to proffer the information necessary
f

or the choice

- of

- law analysis to take place. This is not in accord with the steps we require to raise non

- forum law before a district court

. See Stone , 135 F.3d at 1442; Bethell , 441 F.2d at 497

. We also disagree with Sun Life that it was “premature” for the district court to have conducted a choice

- of

- law analysis at the motion to dismiss stage. Cf. Martinez (conducting choice

- of

- law analysis at the 12(b)(6) stage). The responsibility for any failure by the district court to apply non

- forum law rests squarely with Sun L ife and not the district court.

Case: 17-10189 Date Filed: 09/18/2018 Page: 18 of 5719 For the foregoing reasons, w e conclude that Sun Life waived its opportunity to rely on non - forum law to interp ret the policies at issue

. Consequently, w e interpret the relevant policies in these cases pursuant to Florida law

. II. Sun Life’s Claims Sun Life appeals the dismissal of each of its claims, two of which (RICO and fraud) wer e dismissed at summary judgment and the rest (RICO conspiracy, aiding and abetting fraud, fraud conspiracy, tortious interference with contractual relations, and declaratory judgment) dismissed on the pleadings. We affirm the dismissal of Sun Life’s fraud conspiracy and dec laratory judgment claims, but we
vacate the dismissal of Sun Life’s remaining claims.

a. Count I (RI CO ) & Count III ( Fraud) Sun Life’s claims for RICO and common law fraud depend on the same alleged fraudulent scheme , discussed supra at 6

– 8

. 9 To summarize , Sun Life contends that Imperial orchestrated an elaborate scheme to procure Sun Life policies despite knowing that Sun Life did not want its policies owned by companies like Imperial , which intended to use the policies solely as investment vehicles. Using its network of producers, Impe rial recruited senior citizens to apply for Sun Life insurance policies and told them that Imperial would finance the premium payments

. Knowing that Sun Life would reject such an arrangement,

9 The specifically alleged predicate acts underlying Sun Life’s RICO claim are mail fraud, 18 U.S.C. § 1 341, and wire fraud, 18 U.S.C. § 1343. SL SAC ¶ 360.

Case: 17-10189 Date Filed: 09/18/2018 Page: 19 of 5720 Imperial directed the producers to falsely represent on the application forms (which they tra nsmitted to Sun Life through United States mail or interstate wire) that the insured s did not plan to acquire premium financing or to transfer the ir polic ies to the secondary marke t. Sun Life issued the policies which it would not have done had it known of the misrepresentations on the application s . Aware that Sun Life could c hallenge the validity of the policies during the contractual two

- year contestable period that followed their issuance , however, Imperial deceptively hid its involvement during that period , principally by funneling premium payments to Sun Life through the Bank of Utah and the Family
Insurance Trust as loans . After the expiration of the contestable period, I mperial forgave the insureds’ debts to induce the insureds to transfer ownership of the policies to Imperial

. Sun Life, now e ffectively time

- barred by the incontestability clause from contesting the validity of the policies, was stuck with the investor

owned policies that it actively sought to avoid. Sun Life was harmed by this scheme, it claims , because sophisticated investors such as Imperial can manipulate the value of the poli cies in ways that Sun Life knows a typical policy consumer does not, which makes the policies less profitable to Sun Life.
Th e district court dismissed Sun Life’s RICO and fraud claims bottomed on the foregoing scheme at summary judgment, conclud ing that those claims are time

barred by operation of the incontestability c lause. On appeal, Imperial defends the

Case: 17-10189 Date Filed: 09/18/2018 Page: 20 of 5721 district court’s conclusion

. 10 The issue here is there fore straight

- forward: do es the incontestability c lause bar Sun Life from asserting its RICO a nd fraud claims ? 11
We conclude that it does not and vacate the district court judgment to the contrary. As discussed, the i ncontestability c lause provide s that: After this Policy has been in force during the lifetime of the [ i ] nsured for a period of two years from its Issue date, we [Sun Life] cannot contest it except for non

- payment of [ p ] remiums. Dkt. 47 2

- 1 at 14. As Sun Life does not dispute that it brought its RICO and fraud claims more than two years after issuance of eac h of the relevant policies, t he only issue is whether, through those claims, Sun Life “contest[s]” the policies. Imperial argues that any fraud

- based cl aim that is related to the policies is a
“contest [ing]” of the policies and is therefore barred by the incontestability c lause. In fact, Imperial goes so far as to contend that the incontestability c lause bar s Sun

10 Imperial does not contend, as it did below, see Dkt. 201 at 6

– 21, that Sun Life’s RICO and fraud claims are otherwise deficient. See No. 17

- 10415 Br. of Appellees at 21

– 29. 11 Sun Life also contends that Imperial Holdings, Inc. (“IHI”) (the only defendant named in Sun Life’s RICO and fraud claims) lacks standing to invoke the incontestability clause as a defense to Sun Life’s claims because IHI is not a record owner of any of the policies. Although true that IHI is not a record owner, it is also undisputed that each record owner is itself an IHI subsidiary or affiliate. See Dkt. 200

- 61; SL SAC ¶¶ 13

– 20; Dkt. 193 ¶¶ 13

– 20. To the extent these subsidiaries or affiliates are agents of IHI, IHI would h ave standing to enforce their contractual rights. See Nardi v. Cont’l Nat’l Bank , 559 So.2d 307, 309 (Fla. 3d DCA 1990). Imperial (through its affiliate, IPF), later (after Sun Life’s RICO and fraud claims were dismissed) introduced unrebutted evidence t hat each of the policy owners are agents of IHI, see Dkt. 472

- 15 ¶ 3(i), but Sun Life ultimately disputed that assertion. Compare Dkt. 472 ¶ 33 n.5, with Dkt. 494 ¶ 33. As we conclude that the incontestability clause is not a bar to Sun Life’s RICO and f raud claims against IHI, we need not resolve this dispute.

Case: 17-10189 Date Filed: 09/18/2018 Page: 21 of 5722 Life from “mak[ing] the Policies the subject of a legal case.” 12 No. 17

- 10415 Br. of Appellees at 26

– 27. Sun Li fe disagrees, contending that an insurer “contest s ” a life insurance policy only where it seeks rescission of the policy as a remedy , which ultimately means a release from the obligation to pay benefits up on the death of the insured (or a repayment of death benefits already distributed)

. Here Sun Life argues that it does not seek to rescind any of the policies through its RICO and fraud claims, but that these claims seek only to recover lost profits attributable to the fact that the polic ies are investor

- owned rather than consumer

owned. We agree with Sun Life. Although Florida law strictly construes incontestability clauses against untimely claims to void life insurance policies, see Bankers Sec. Life Ins. Soc. v.
Kane , 885 F.2d 820, 822 (11th Cir. 1989), Florida courts have not addressed whether an incontestability clause may bar a n insurer’s fraud

- based claim that seek s a remedy other than a voiding of the policy

. 13 Nevertheless, this is not the

12 This position is certainly incorrect. See, e.g. , Allen v. Aetna Life Ins. Co. , 563 F.2d 1240, 1241 (5th Cir. 1977) (per curiam) (“An incontestable clause does not bar the insuror from proving t hat the loss was not covered by the terms of the policy.”). 13 Contrary to the district court’s analysis, we are not controlled on this question by Martinez

. There, we concluded that Ohio, West Virginia, Massachusetts, and Illinois law would each interpre t the incontestability clauses at issue to bar the plaintiffs

- insurers’ fraud

- based claims in those cases. 480 F.3d at 1059

– 66. Martinez is inapposite for at least two reasons: (i) we had no occasion in Martinez to address Florida law, which governs our review of the policies here, see supra at 1 4

– 18 ; and (ii) regardless, we see no indication that we were confronted in Martinez with the specific argument Sun Life poses here: that where a life insurer seeks non

- rescission damages, it does not seek to “co ntest” the policy.

Case: 17-10189 Date Filed: 09/18/2018 Page: 22 of 5723 first time we have confront ed the issue. In Kane , life insurance compan ies filed suit beyond the contestable period seeking to void policies on the ground that the insured fraudulently misrepresented his crimin al history in his application s . 885 F.2d at 820

– 21. As relevan t here, the insurers argued that even if the incontestability clause bar red their contract claims, the clause c ould not bar their fraud claims , citing Guar antee Trust Life Ins urance Co. v. Wood , 631 F. Supp. 15 (N.D. Ga. 1984), which stood for just that proposition (under Georgia law)

. Id. at 822

. Although we rejected the argument, we did not disagree with Wood , but rather concluded that it was inapposite on the facts before us given that the insurers’ fraud claims in Kane , as opposed to those in Wood , sought to void the life insurance policies : “[a] lthough Wood may have involved facts that justified the court’s ruling, in this case a fraud suit would merely provide a different means to challenge the validity of the insurance contract.” Id. Altho ugh it was dictum , we envisioned in Kane that , under Florida law, a life insurance policy’s incontestability clause would not bar a fraud claim that d id not seek to void the policy. And a t least one court has relied on Kane to conclude that Florida’s inconte stability statute does not bar fraud claims that, like Sun Life’s, “seek [] not to void the contract, but rather damages for the fraud.” Sciaretta v. Lincoln Nat ’l

. Life Ins. Co. , 899 F. Supp. 2d 1318, 1328 (S.D. Fla. 2012) , aff’d , 778 F.3d 1205

. We think this is the correct approach.

Case: 17-10189 Date Filed: 09/18/2018 Page: 23 of 5724 As a textual matter , a lawsuit seeking damages without asking to rescind a life insurance policy cannot reasonably be construed as “contest [ing]” “th [e] Policy ,” Dkt. 472

- 1 at 14 (emphasis added), which would remain fully in force despite the entry of judgment on a fraud claim (such as Sun Life’s) under the exact terms on which it was executed . Further, to allow damages without rescinding the death benefit obliga tion does not significantly impact the rationale behind incontestability clauses. Justice Holmes noted nearly a century ago that the “object of the [incontestability] clause is plain and laudable

— to create an absolute assurance of the benefit.” Nw. Mut. Life Ins. Co. v. Johnson , 254 U.S. 96, 101 (1920). That the prevailing function of an incontestability clau se is to remove from any doubt a life insurer’s obligation to pay death benefits (following a reasonable period to allow the insurer to investigate ) helps explain why Florida law has singularly focused its application of incontestability clauses on efforts to void policies. S ee Kane , 885 F.2d at 821 ( a principal “ purpose of [Florida’s incontestability] statute is to

. . . protect [] consumers from untimely efforts to void policies .” (emphasis added) (citing Prudential Ins. Co. of Am. v. Prescott , 176 So. 875 ( Fla. 1937))); Allstate Life Ins. Co. v. Miller , 424 F .3d 1113, 1115 (11th Cir. 2005) (“Florida’s appellate courts have uniform ly held that once the incontestability clause becomes effective, insurers are barred from attempting to rescind or cancel the insurance policy based on allegations that the insured

Case: 17-10189 Date Filed: 09/18/2018 Page: 24 of 5725 engaged in fraud or misrepresentation

. ” (emphasis added)); Allstate Life In s. Co. v.
Fox , 700 So.2d 49, 49

– 50 ( Fla. 5th DCA 1997) (incontestability clauses “prevent[] the insurer from raising [fraud] as a defense to payment of a claim ”) (emphasis added) ; cf. Prescott , 176 So. at 878 (incontestability clauses give “the insured a guaranty against expensive litigation to defeat his policy ” (emphasis added)).
W here , as here, a life insurer sues alleging that it was fraudulently induced to enter into a life insurance contract but does not seek any relief that would call into question the continuing viability of the policy, we do not think that the insurer
“contest [s] ” that policy

. Consequently, we vacate the dismissal of Sun Life’s RICO and fraud claims to the extent those claims seek a remedy other than effective rescission of the policies

. b. Count II (RICO Conspiracy) & Count V (Fraud Conspiracy) Sun Life alleged that Imperial conspired with the producers, as well as the Bank of Uta h , and the Family Insurance Trust , to commit RICO predica te acts and common law fraud. SL SAC ¶¶ 367, 390. The alleged conduct underlying both conspiracy claim s wa s the submission of fraudulent life insurance applications to Sun Life. See SL SAC ¶¶ 375, 391. 14 The district court granted Imperial’s motion to dismiss both claims on the ground that Sun Life failed to plead sufficient facts to establish a plausible conspiracy. Dkt. 192 at 56

– 57. We affirm the dismissal of

14 As with its RICO claims, the underlying predicate acts supporting Sun Life’s RICO conspiracy claim are mail fraud, 18 U.S.C § 1341, and wire fraud, 18 U.S.C. § 1343. SL SAC ¶ 368.

Case: 17-10189 Date Filed: 09/18/2018 Page: 25 of 5726 Sun Life’s fraud conspiracy claim but vaca te the dismissal of Sun Life’s RICO conspiracy claim

. “[A] conspiracy requires a meeting of the minds between two or more persons to accomplish a common a nd unlawful plan .” McAndrew v. Lockheed Martin Corp. , 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc) ( internal citations omitted). “[W] here a conspiracy claim alleges that two or more parties agreed to commit fraud, the plaintiff must

. . . plead this act with specificity.” Martinez , 480 F.3d at 1065. Sun Life’s fraud conspiracy claim do es not meet th ese criteria

. Sun Life’s claim that Imperial conspired with the producers to commit fraud fails because Sun Life did not plausibly allege that the producers and Im perial are independent entities that were capable of conspiring to commit common law fraud as alleged by Sun Life

. Sun Life repeatedly alleged that the producers were agents (or even employees) of Imperial in relation to their submission of life ins urance applications to Sun Life, see SL SAC ¶¶ 32, 34, 35, 54, 68, 79, 91, 108, 122, 134, 147, 15 8, 172, 188, 199, 212, 223, 234, 247, 258, 263, 273, 284, 297, 312, 326, 339, 348, 360, 382, 15 and “it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself, ” McAndrew , 206 F.3d at 1036

15 Indeed, Sun Life argued at summary judgment that “[d]iscovery has revealed overwhelming evidence that t he producers acted as Imperial’s agents in submitting the life insurance applications.” Dkt. 215 at 2 (sealed).

Case: 17-10189 Date Filed: 09/18/2018 Page: 26 of 5727 (discussing federal law)

. 16 Sun Life’s fraud conspiracy claim cannot survive. 17 The same analysis does not apply , however, to Sun Life’s claim for RICO conspiracy. See 18 U.S.C. § 1962(d). We have concluded that the principle discussed in McAndrew , known as the “intracorporate conspiracy doctrine,” does not apply to civil claims for RICO conspiracy. Kirwin v. Price Commc’ns Corp. , 391 F.3d 1323, 1326

– 27 (11th Cir. 2004) (“ [J]us t as the intracorporate conspiracy doctrine cannot shield a criminal conspiracy from prosecution under the federal criminal code, the doctrine cannot shield the same conspiracy, alleging the same criminal wrongdoing, from civil liability arising under [18 U.S.C. § 1962(d)]

. ”)

. And we disagree with Imperial’s attacks on the merits of Sun Life’s RICO conspiracy claim, specifically, that Sun Life did not plead (i) an agreement between Imperial and the p roducers, and (ii) racketeering activity. No. 07

- 10415 Br. of Appellees at 30

– 35; see Am. Dental Ass’n v. Cigna Corp. , 605 F. 3d 1283, 1293

– 96 (11th Cir. 2010).

16 Sun Life contends that it was free to plead a non

- agency theory in the alternative. No. 17

- 10415 Reply Br. of Appellant at 22

– 23 (citing Fed. R. Civ. P. 8(d)). While t rue, it did not so plead . Rule 8(d)(2) requires that “alternative statements” be “set out” in the pleading, a requirement t hat is generally met through “‘either

- or’ propositions” or “‘if

- then’ allegations,” Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1282 (3d ed. Apr. 2018), which Sun Life did not include. Indeed, in nearly each of its paragraphs under its conspiracy counts Sun Life seems to reaffirm its allegation that the producers were agents of Imperial, repeatedly referring to Imperial and “ its . . . producers.” SL SAC ¶¶ 367

– 75, 390, 392 (emphasis added). 17 Sun Life’s claim that Imperial conspired with the Bank of Utah and the Family Insurance Trust also fails because the complaint contains no non

- conclusory allegations supporting a plausible agreement between those parties specifically to submit false applications to Sun Life, which is the only fraudulent act alleged i n Sun Life’s conspiracy counts. See Martinez , 480 F.3d at 1067

– 68 (plaintiff must plead that the “parties agreed to commit fraud . . . with specificity”).

Case: 17-10189 Date Filed: 09/18/2018 Page: 27 of 5728 First , Sun Life’s complaint easily permits the inference that Imperial and the producers entered into an agreement to effectuate Imperial’s fraudulent plan. As discussed, the complaint contains myriad details of Imperial ’s interaction with and direction of the producers with respect to Imperial’s alleged scheme, see, e.g. , SL SAC ¶¶ 55

– 65, 68, which included Imperial compensating the producers for their knowing submission of fraudulent applications to Sun Life , SL SAC ¶ 42

– 45 . In light of those allegations, an agreement between Imperial and the producers is certainly plausible. Second , Sun Life ple d RICO predicate racketeering acts: the commission of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, which “[b]oth . . . req uire that a person (1) intentionally participate[d] in a scheme or artifice to defraud another of money or property, and (2) use [d] or ‘cause [d] ’ the use of the mails or wires for the purposes of executing the scheme or artifice.” United States v. Ward , 4 86 F.3d 1212, 1222 (11th Cir. 2007). Sun Life met its burden by alleging that the producers use d the United States mail and interstate wire to submit life insurance applications to Sun Life that contained several misrepresentations that induced Sun Life’s issuance of the policies

. For example, Sun Life alleged that the producers misrepresented that the insured s did not intend for policy premiums to be financed

Case: 17-10189 Date Filed: 09/18/2018 Page: 28 of 5729 through a loan “now or in the future.” See, e.g. , SL SAC ¶ 62. 18 But, as Sun Life also alleged, the producers knew the contrary to be true. See, e.g. , SL SAC ¶¶ 57

– 61. And Sun Life’s reliance on those misrepresentations is supported by the allegation that Sun Life framed the relevant application questions pre cisely to avoid issuing premium

- financed policies or policies intended at the outset for the secondary market. See SL SAC ¶¶ 5, 30. Finally, Sun Life alleged the damages it faced by issuing less profitable premium

- financed policies. SL SAC ¶¶ 364

– 66. Consequentl y, we conclude that the district court properly dismissed Sun Life’s fraud conspiracy claim but that it erred in dismissing Sun Life’s RICO conspiracy claim to the extent such claim alleges a conspiracy between Imperial and the producers.

c. Count IV (Aiding and Abetting Fraud) Florida courts have for some time assumed without deciding that a cause of action exists for aiding and abetting fraud , “presum[ing] that [the claim] has three elements: (1) the existence of an underlying fraud; (2) that the defendant had knowledge of the fraud; and (3) that the defendant provided substantial assistance to advance the commission of the fraud.” Chang v. JPMorgan Chase Bank, N.A. , 845 F.3d 1087, 1097

– 98 (11th Cir. 2017) (internal quotation marks and alterations

18 Imperial argues that the applications d id not actually contain misrepresentations made by the prod ucers to Sun Life. No. 17

- 10415 Br. of Appellees 34

– 37. But, its argument depends on material outside of the pleadings, which may not be considered at the Rule 12(b) stage.

Case: 17-10189 Date Filed: 09/18/2018 Page: 29 of 5730 omitted)

. 19 A ssuming the cause of action exists, t he district court concluded that Sun Life failed to state an aiding and abetting fraud claim under Rule 12(b)(6) because it did not plead “how the D efendant had knowledge of the alleged fraud

. ” Dkt. 192 at 57. We disagree with that conclusion

. For reasons that have largely been discussed, Sun Life adequately pled each element of an aiding and abetting fraud claim. First, w e have already identified the allegations supporting the plausibility of an underlying fraud of someone other than Imperial ( the producers ). S ee supra at 28

– 29. Second, Sun Life has alleged that Imperial knew about the producers’ fraud ulent application statements

. S ee SL SAC ¶ 63 . And third , Sun Life has al leged that Imperial provided “substantial assistance” to the producers’ submission of the fraudulent applications

. 20 The alleged “substantial assistance” is best illustrated by the fact that, prior to directing the producers to submit applications to Sun Life, Imperial rev iewed the applicant s ’ medical records to determine if the policies were ones that Imperial would want to finance , s ee, e.g. , SL SAC ¶ ¶ 39, 57 , and that Imperial compensate d the producers for each policy that Sun Life ultimately issued as a result of Imperial’s scheme , see SL SAC ¶ 45. Consequently, Sun Life alleged not only that Imperial had

19 Imperial does not argue that there is no aiding and abetting fraud claim under Florida law, and we therefore also assume its existence. See Lamm v. State St. Bank & Trust , 749 F.3 d 938, 950 n.9 (11th Cir. 2014)

. 20 Imperial does not argue (as it does as to Sun Life’s fraud conspiracy and tortious interference with contract ual relations claims) that Sun Life’s aiding and abetting fraud claim fails in light of Sun Life’s allegations that the producers were agents of Imperial.

Case: 17-10189 Date Filed: 09/18/2018 Page: 30 of 5731 knowledge of the producers’ fraud but that it provided “substantial assistance” to the fraud and that it directed and incentivized it

. Plainly , Sun Life sufficiently pled a n aiding and abetting fraud claim , and

w e accordingly vacate the district court’s ruling to the contrary

. d. Count VI (Tortious Interference with Contractual Relations) Sun Life alleged that the producers that conspired with Imperial to defraud Sun Life were simultaneously under contract with Sun Life , and that those
contracts prohibited the producers from , inter alia , making fraudulent statements

on Sun Life insurance applications. SL SAC ¶¶ 395

– 96. Sun Life therefore alleged that Imperial tortiously interfered with these contracts , by , most notably, directing the producers to submit frau dulent applications to Sun Life. The elements of a Florida law tortious interferen ce with contract ual relations claim are: (i) th e existence of a contract; (ii) the defendant’s knowledge thereof; (iii) the defendant ’ s intentional and unjustified procuremen t of a breach thereof; and (iv) damages. See Johnson Enter s. of Jacksonville, Inc. v. FPL Grp., Inc. , 162 F.3d 1290, 1321 (11th Cir. 1998). The district court granted Imperial’s motion to dismiss the claim, concluding that: “I don’t see that specific facts have been pled pursuant to Rule 9(b) as to how the Defendant [Imperial] knew of the existence of the alleged producer contracts, and how Defendant [Imperial] knew that the producers were in breach of those contracts.” Dkt. 192 at 57. We disagree.

Case: 17-10189 Date Filed: 09/18/2018 Page: 31 of 5732 Imperial raises three arguments in support of the dismissal of Sun Life’s
tort ious interference claim: (i) Sun Life failed to plead Imperial’s knowledge of the producers’ contracts with Sun Life; (ii) Sun Life failed to plead that Imperial interfered with those contracts; and (iii) Sun Life alleged that the producers are agents of Imperial, and a principal cannot torti ously interfere with its agents’
contracts. We are unpersuaded. Imperial’s first two argument s can be quickly set aside

. Sun Life expressly alleged that Imperial kn ew of the producers’ contracts with Sun Life

. SL SAC ¶ 397

. C ontrary to the district court’s conclusion, Sun Life need not have pled Imperial’s knowledge of the relevant contracts with specificity, even assuming Rule 9(b) applies. See Fed. R. Civ. P. 9(b) (“In alleging fraud . . . knowledge . . .
may be alleged generally

. ”). Sun Life also pled Imperial’s interference with the relevant contract s . A s discussed above, Sun Life alleged that Imperial’s scheme depended on (and , significantly, incentivized) the producers ’ submission of fraudulent statement s on Sun Life ’s application forms , acts which allegedly breached the producers’ contracts with Sun Life

. SL SAC ¶ 396. Finally, we reject at this stage Imperial’s third argument that Imperial c ould not have torti ously interfere d with the producers’ contracts in light of Sun Life ’s alleg ations that the producers we re Imperial’s agents. Even if there are instances in which a principal cannot torti ously interfere with its agent’s contracts, the agent

Case: 17-10189 Date Filed: 09/18/2018 Page: 32 of 5733 must have been “acting within his capacity and scope as an agent” when executing the contract for the rule to apply

. See Cedar Hills Props. Corp. v. E

. Fed

. Corp. , 575 So.2d 673, 676 (Fla. 1st DCA 1991). Although Sun Life pled that the producers were agents of Imperia l for purposes of submitting insurance applications to Sun Life (thereby precluding the core of Sun Life’s fraud conspiracy claims) , it is not readily apparent that Sun Life also alleged that the producers were acting as Imperial’s agents when they contracted with Sun Life. Sun Life did not allege that Imperial directed the producers to enter into the contracts with Sun Life, or that the producers ente red into those contracts for Imperial’s benefit. See Ilgen v. Henderson Props., Inc. , 683 So. 2d 51 3, 515 (Fla. 2d DCA 1996). 21 Consequently, we conclude that, at this stage, Sun Life has adequately pled its tortious interference with contract ual relations claim, and we vacate the district court’s ruling to the contrary.

21 We note, however, that certain of Sun Life’s allegations suggest that the producers were employees of I mperial when they contracted with Sun Life. And Sun Life states in its brief on appeal that at least some of the producers entered into the relevant contracts with Sun Life “in the course and scope of their employment with Imperial .” No. 17

- 10415 Br. of. Appellant at 47 (emphasis added). To the extent any of the producers’ contracts were executed within the scope of the producers’ employment (or agency) with Imperial, we think Sun Life will be hard pressed to make out its tortious interference claim as t o that contract (thought it may have a breach of contract claim). Nevertheless, this dispute is properly the subject of subsequent stages of this litigation. Case: 17-10189 Date Filed: 09/18/2018 Page: 33 of 5734 e. Count VI I (Declaratory Judgment) Sun Life sought a declaratory judgment that “each of the policies procured through the Imperial scheme lacked an insurable interest at its inception and should be declared void ab initio .” SL SAC ¶ 402

. The premi se of the claim is that the policies owned by Imperial are unlawful in light of state law prohibiting the
p rocurement of life insurance policies in which t he beneficiary lacks an “insurable interest” in the insured individual at the time the policy is issu ed

. See Fla Stat. § 627.404(1). The district court dismissed the claim under Rule 12(b)(6) and we affirm because Sun Life effectively conceded that its declaratory judgment claim is foreclosed under controlling Florida law by Wells Fargo Bank, N.A. v. Pruco Life
Ins urance Co. , 200 So.3d 1202 (Fla. 2016)

. S ee No. 17

- 10415 Reply Br. of Appellant at 2 n.2 ; Pruco , 200 So.3d at 1205

– 06 ( conclud ing that policies procured in the precise manner in which Sun Life alleges Imperial procured its Sun Life policies here “have the insurable interest required by section 627.404,” because the policies, “ at their inception , benefitted indiv iduals with insurable interests ” (emphasis added) )

. III. I PF ’s Claims
As previously discussed, IPF ’s suit against Sun Life alleged in relevant part that Sun Life’s efforts to challenge and undermine Imperial’s ownership of the policies breached the policy agreements and was itself part of its own fraudulent

Case: 17-10189 Date Filed: 09/18/2018 Page: 34 of 5735 scheme. The district court dismissed one theory of IPF’s c ontract claim on the pleadings and dismissed the remainder of the contract claim and IPF’s fraud claim at summary judgment

. We address each claim on appeal in turn.

a. Count II (Breach of Contract)
A breach of contract claim under Florida law requires the existence of a contract, the breach of the contract , and damages resulting from the breach

. See DNA Sports Performance Lab, Inc. v. Club Atlantis Condo

. Assoc., Inc. , 219 So.3d 107, 109 (Fla. 3d DCA 2017). I PF asserts that Sun Life ’s efforts to obstruct Imperial’s ownership rights separately breached two provis ions of the policy agreements: (i) the i ncontestability c lause; and (ii) the r ights

- and

- p rivileges

c lause. 22
i. Alleged Breach of the Incontestability Clause

22 Sun Life also contends that IPF lacks standing to bring its contract claim because it is not th e record owner of any of the policies. But, IPF sufficiently established, for purposes of defeating summary judgment, its standing to bring its contract claim given unrebutted evidence that the policy owners (each an Imperial subsidiary or affiliate, see supra at 21 n.1 1 ) orally assigned their causes of action to IPF. See Dkt. 389

- 1; see also W.S. Badcock Corp. v. Webb , 699 So.2d 859, 861 (Fla. 5th DCA 1997) (“Contract rights that can be assigned include choses in action arising out of the parties’ contra ct. In fact, assignability of a cause of action is the rule rather than the exception.” (internal citation omitted)); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic , 913 So.2d 1281, 1288 (DCA Fla. 2d 2005) (Davis, J., concurring) (“Except wher e a writing is required by statute, an assignment may be oral and proven by parol evidence.”)

. Sun Life contends on appeal that even if the policy owners did enter agreements to assign their causes of action to IPF, those agreements are invalid for failur e to comply with the assignment procedures in the policy agreements. No. 17

- 10189 Br. of Appellee at 24

– 25. But, Sun Life did not raise this contention in the district court, despite arguing on several occasions that IPF lacked standing to assert rights u nder the policies. See No. 13

- cv - 80730, Dkt. No. 11 (S.D. Fla. Aug. 23, 2013); Dkt. 356 at 1; Dkt. 357 at 3

– 4; Dkt. 405 at 2

– 4. We decline to address this argument for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co. , 385 F.3d 1324, 13 31 (11th Cir. 2004). Case: 17-10189 Date Filed: 09/18/2018 Page: 35 of 5736 As relevant here, IPF contends that Sun Life’s filing of its declaratory judgment claim was an untimely “contest [ing] ” of the policy that consequently breached the incontestability c lause. 23 The distric t court dismissed this theory at the pleading s tage , summarily concluding that the filing of a declaratory judgment claim cannot constitute a breach of contract. Dkt. 441 at 5 . We disagree. Unlike Sun Life’s fraud

- based claims, see supra at 2 1

– 2 5 , Sun Life’s claim for a declaratory judgment that the policies are void ab initio plainly “contest[ed]” the policies under controlling Florida law

. See Pruco , 200 So.3d at 1206

– 07 ; Pruco Life Ins. Co. v. Wells Fargo Bank, N.A. , 846 F.3d 1188, 1190 (11th Cir. 2017) (per curiam) . And, having filed its declaratory judgment claim more than two years after issuance of the policies, IPF has plausibly alleged that Sun Life breached the terms of the incontestability c lause. Sun Life nevertheless contends that IPF ’s claim for breach of the incontestability clause fails as a matter of law

. In this regard, we have already rejected Sun Life’s arguments that: (i) IPF lacks standing to enforce the incontestability clause, see supra at 35 n. 22 ; (ii) the court must conduct a choice

of

- law analysis prior to addressing the impact of the incontestability clause, see
supra at 1 4

– 18 ; and (iii) a declaratory judgment claim is not a “contest” to the policies, see supra at 36 . Additionally, Sun Life ra is es the following argument s :

23 To the extent IPF alleges that Sun Life breached the incontestability clause through its fraud

based claims, we disagree for the reasons stated supra at 1 9

– 2 5

.

Case: 17-10189 Date Filed: 09/18/2018 Page: 36 of 5737 (i) its act of filing a declaratory judgment claim is protected by the absolute immunity afforded by Florida’s litigation privilege ; and (ii) a breach of a n incontestability clause is not actionable for a damages suit under Fl orida law. We disagree with both contenti ons. 1. Florida’s Litigation Privilege Sun Life contends that it cannot be sued for filing its declaratory judgment

c laim because its act of filing a lawsuit is absolutely immune from liability under Florida’s litigation privilege. At its most basic level , Florida’s litigation privilege

“ provid[es] legal immunity for actions that occur in judicial proceedings.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole , 9 50 So.2d 380 , 383 (Fla. 2007). Because the filing of a lawsuit is an “action[] that occur[s] in [a] judicial proceeding,” id. , Sun Life contends that its filing of its declaratory judg ment claim is protecte d by the privilege. The district court ultimately disagreed. See Dkt. 29 3 at 24; but see Dkt. 267 at 32

– 33. We are in accord with the district court

. Florida adopted its litigation privilege to protect testifying witnesses against defamation suits premised on statemen ts they made in open court

. See Myers v. Hodges , 44 So. 357 , 361

– 62 (Fla. 1907)

. The concern was with chilling robust
courtroom testimony

. As the Florida Supreme Court stated in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P .A. v. United States Fire

Case: 17-10189 Date Filed: 09/18/2018 Page: 37 of 5738 Ins urance C o. , 639 So.2d 606 (Fla. 1994), the “absolute immunity [provided by Florida’s litigation privilege] resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings.” Id. at 608. The privilege reflects a policy judgment that in most cases participants in litigation must be free to e ngage in unhindered communication and to use their best judgment in prosecuting or defending a lawsuit without fear of civil liability notwithstanding the potential harm to an individual on the receiving end of a defamatory statement or other bad act. AGM Inv ’r s., LLC v. Bus. Law Grp., P.A. , 219 So.3d 920, 924 (Fla. 2d DCA 2017 ) (internal quotation marks omitted)

. Although at its inception the privilege offered immunity only from actions sounding in defamation , see Levin , 639 So.2d at 607

– 08, the Florida Su preme Court has significantly expanded the privilege. In Levin , it extended the privilege to protect not just allegedly defamatory litigation conduct but any “tortious behavior . . . [which had] some relation to the [judicial] proceeding.” Id. at 608. In Echevarria , t he Court expanded the privilege beyond the tort context to hold immune from suit a party facing claims that its litigation conduct violated a statute: The litigation privilege applies across the board to actions in Florida, both to common - law causes of action, those initiated pursuant to a statute, or of some other origin. “Absolute immunity must be afforded to any act occurring during the Case: 17-10189 Date Filed: 09/18/2018 Page: 38 of 5739 course of a judicial proceeding . . . so long as the act has some relation to the proceeding.” 950 So.2d at 384 (quoting Levin , 63 9 So.2d at 608)). Echevarria , however, is not the Court’s latest word on Florida’s litigation privilege . I n Debrincat v. Fischer , 217 So.3d 68 (Fla. 2017), the Court receded somewhat from the broad language in Echevarria

. There, Fischer filed a malicious prosecution suit against Debrincat alleging that Debrincat maliciously added Fischer as a party defendant in a n earlier action . Debrincat asserted that the litigation privilege immunized his conduct of adding Fischer as a defendant in the earlier action , but the Florida Supreme Court disagreed. It concluded that the litigation privilege does not provide immunity from claims for malicious prosecution , principally because if it did so it “ would eviscerate [that ] long

established cause of action.” Debrincat , 217 So.3d at 70. After Debrincat , and despite the broad formulations in Levin and Echevarria , we do not think that the Florida Supreme Court is of the view that the litigation privilege offers per se immunity against any and all causes of action that arise out of conduct in judicial proceedings

. See id. Rather, the applica bility of the privilege must be assessed in light of the specific conduct for which the defendant seeks immunity

. In this case, therefore, we must ask whether Florida’s litigation privilege would immunize a defendant from a breach of contract claim where the

Case: 17-10189 Date Filed: 09/18/2018 Page: 39 of 5740 act that allegedly breached the contract was the filing of a law suit. We think it would not

. We are aware of no case applying a litigation privilege to provide immunity from a claim that the act of filing a law suit breached a contract. In fact, Sun Life points us to only one instance in which a Florida court has upheld application of the litigation privilege to extend immunity from a breach of contract claim generally . In James v. Leigh , 145 So.3d 1006 (Fla. 1st DCA 2014) , Leigh sued James in relation to allegedly defamatory statements that James made in his earlier divorce proceeding. Leigh not only brought a claim for defamation, but also asserted that James’ defamatory statements breach ed the parties’ non

disparagement agreement. The Florida appellate court held that James was protected by the litigation privile ge from facing suit on both the defamation and the breach of contract claim s . In a straight

- forward application of Levin , the court dismissed the defamation claim because the allegedly defamatory statements “had some relation to [James’] divorce proceedin g.” Id. at 1008. It then briefly addressed the breach of contract claim, which it dismissed because it refused to read the non

- disparagement agreement as a waiver of t he litigation privilege. Id. at 1008

– 09. We do not think that James , or any other Florida authority, requires us to extend absolute immunity to the filing of a lawsuit where that specific act breaches

Case: 17-10189 Date Filed: 09/18/2018 Page: 40 of 5741 a contract . Although James allowed an immunity defense to defeat a breach of contract claim, the underlying conduct for w hich immunity was sought

— in

- court defamatory statements

— went directly to the original purpose of the litigation privilege. Specifically, James’ statements were made as part of a vigorous defense in his divorce proceeding and allowing such statements to be the object of a subsequent lawsuit (either for def amation or breach of contract) c ould have a serious “chill ing effect. ” J ames , 145 So.3d at 1008 (quoting Levin , 639 So.2d at 608). In contrast, we do not think that applying the privilege here would meaningfully serve the aims of the privilege. To be sure, disallowing the litigation privilege where it would otherwise immunize the litigant from breach of contrac t suits might to some extent chill the “free and full disclosure of facts in the conduct of judicial proceedings.” Levin , 639 So.2d at 608. But, the true source of any chilling effect will be the parties’ duly

- entered contract, which itself bars the filing of the lawsuit

. We are further persuaded by Debrincat , which made plain that the litigation privilege should not be applied in novel ways that serve to “eviscerate” long

standing sources of judicially available recovery. 217 So.3d at 70. There, the Court concluded that application of the privilege to provide immunity from malicious prosecution suits would effectively eliminate the malicious prosec ution tort precisely because the first element of the t ort is the filing of a lawsuit. Id.

Case: 17-10189 Date Filed: 09/18/2018 Page: 41 of 5742 Here too , application of the privilege would virtually extinguish a common form of relief : the awarding of damages for breaches of agreements not to sue a contract counterparty

. See, e.g. , Glob

. Comm c’n s., Inc. v. Dire c tv, Inc. , 2015 WL 10960959, at *2 (N.D. Fla. Nov. 1 6, 2015); Atlas One Fin. Grp., LLC v. Alarcon , 2015 WL 1191211 , at *6 (S.D. Fla. Mar. 16, 2015); Foliar Nutrients, Inc. v. Plant Food Sys., Inc. , 2014 WL 3510594, at *4 n.6 (M.D. Fla. July 14, 2014); In re W.B Care Ctr., LLC , 419 B.R. 62, 73 (Bankr. S.D. Fla. 2009); Gregoire v. Lucent Techs

. , Inc. , 2005 WL 1863429, at *3

– 4 (M.D. Fla. Aug. 5, 2005); see also Hertz Corp. v. Hellens , 14 0 So.2d 73, 75 (Fla. 2d DCA 1962). In fact , Sun Life’s position that a party may never face a breach of contract suit for its litigation activity would create perverse incentives that would undermine the “strong public policy favoring freedo m of contract ” that is “not [to be] lightly interfered with

. ” City of Largo v . AHF

- Bay Fund, LLC , 215 So.3d 10, 16 (Fla. 2017) (internal quotation marks omitted)

. Fo r exam ple, a party could enter into a solemn agreement not to disclose certain sensitive information ( i.e. , trade secrets or personal data ), and the following day make the disclosure in a civil complaint without facing any liability. Surely this does not align with the Florida Supreme Court’s view of the litigation privilege. Sun Life has failed to show that Florida’s litigation privilege immunize s it from IPF’s clai m that Sun Life ’s suit breached the incontestability clause

.

Case: 17-10189 Date Filed: 09/18/2018 Page: 42 of 5743 2. Actionability of a Breach of the Incontestability Clause Apart from the litigation privilege, Sun Life contends that Florida law does not allow damages suits for the breach of an incontestability clause. The district

cou rt accepted the argument , concluding that the i ncontestability c lause may be “raised [onl y] as a shield, not a s word.” 2016 WL 10565034, at * 3. We disagree. It is a core principle, of course, that generally a cont ractual breach by one party entitles the counterparty to damages. See Walter Int’l . Prods., Inc. v. Salinas , 650 F.3d 1402, 1418 (11th Cir. 2011). Sun Life contends that when an incontestability clause is breached that basic rule does not apply, but its arguments

are un persuasive. Sun Life relies on a line of Florida cases concluding that an incontestability clause is “in the nature of, and serve s a similar purpose as , a statute of limitations.”
Prescott , 176 So. at 878

. Because damages actions are not available in relation to an adversary’s filing of an action outside of a statutory limitations period, the argument goes, so too are damages unavailable in relation to those filed outside a

c ontractual c ontestable period. The argument’s premise is hollow. In cases that have analogized an incontestability clause and a statute of limitati on, the incontestability clause was invoked defensively, not offensively, and thus it indeed played a role similar to a statute of limitation

. See, e.g., id. at 87 8

– 8 9. But, a limitations period and a contestable period are fundamentally different: the first is

Case: 17-10189 Date Filed: 09/18/2018 Page: 43 of 5744 solely a creature of statute, violation s of which do not generally entitle the aggrieved person to seek redress, and the second is found in a contrac tual term , a breach of which generally allows for a damages claim. And, unlike limitations periods, the Florida legislature mandates the inclusion of incontestability clauses in insurance contracts , see Fla. Stat. § 627.455 , which strongly indicates that the legislature intended for damages to be available up on their breach. Otherwise, we see no reason wh y the legislature simply would not have directly prohibit ed untimely policy contests

. See Am. Nat’l Ins. Co. v. Schneider , 2013 WL 1215608, at *3 (M.D. Fla. May 17, 2013) (holding that under Florida law an insured can sue insurer for breach of an incontestability provision). Finally, Sun Life contends that an incontestability clause is akin to certain other contractual provisions t hat do not allow for a suit upon their breach. Sun Life provides as an example a provision in a commercial lease requiring the tenant to provide 90 days’ notice if it wishes to elect its “option to renew” the lease , arguing that the “contest[ing]” of a li fe insurance policy after the contesta bility period is analogous to the tenant i n its example providing only 45 day s ’ notice of its election to renew

. No. 17

- 10189 Br. of Appellee at 28. The comparison is specious. The incontestability clause here contain s clear prohibitive language (“cannot contest”) that the hypothetical lease ( “option to renew” ) does not.

Case: 17-10189 Date Filed: 09/18/2018 Page: 44 of 5745 We conclude that an incontestability c lause , like nearly all contractual prohibitions , may allow for damages up on its breach . We therefore vacate the district court’s dismissal of IPF’s cl aim that Sun Life breached the i ncontestability

c lause. ii. Alleged Breach of the Rights
- and
- Privileges Clause As discussed previously , the policies at issue provide that the policy owner has “the sole and absolute power to exercise all rights and privileges under [the Policy] without the consent of any other person.” Dkt. 472

- 1 at 16. IPF alleged that Sun Life violated th is “ rights

- and

- privileges clause ” in various ways. See
supra at 10

. The district court dismissed the claim at summary judgment, concluding that IPF failed to sufficient ly establish the damages element of this
contract theory . We agree. Each of the harm s IPF identifies on appeal relate s to the effects of Sun Life’s conduct on Imperial’s ability to use the life insurance policies as collateral. IPF focuses on a credit facility an Imperial affiliate entered in to in April 2013, the proceeds of which were to be used by Imperial in part to pay life insurance premiums on its Sun Life policies . P ursuant to the arrangement, Imperial pledged the 457 life insurance policies that it owned at the time as collateral for an up to $300 million loan that carried with it a favorable interest rate stru cture

. See Imperial Holdings, Inc., Annual Report (Form 10

- K) (Mar. 10, 2014), 1

– 2, 26, F

Case: 17-10189 Date Filed: 09/18/2018 Page: 45 of 5746 23, F

- 34

– 35 ; see also Dkt. 452

- 2 at 6

– 7

. Imperial contends that the 33 Sun Life policies it owned were expected to be included in th at collateral pool but were excluded by the lender “as a consequence of Sun Life’s actions in failing to fulfill its obligations related to those policies.” Dkt. 452

- 2 at 7

. Because the Sun Life policies could not be included in that credit facility, IPF c ontended , Imperial was required to seek alternative fin ancing for its premium payments but could only do so on less favorable terms. Imperial asserts that it therefore suffered “interest related” damages of $5 million

. See Dkt. 458 at 2

– 3

. 24 We think these asserted damages wer e insufficiently foreseeable for IPF’s claim to survive summary judgment. Under Florida law, “evidence as to the amount of damages cannot be based on speculation or conjecture, but must be proven with certainty.” Caulk ins Indiantown Citrus Co. v. Nevins Fruit Co. , 831 So.2d 727, 734 (Fla. 4th DCA 2002). “Whether damages are speculative must be determined by inquiry into both causation of the damage and measurement of damages

. . . . Proof must show with

24 IPF also contends that it is entitled to loss

- of

- use damages in the amount of premium payments Imperial made to Sun Life. See No. 17

- 10189 Reply Br. of Appellant at 19; see also Dkt. 452

- 2 at 12. We disagree. Loss

- of

- use damages are not available to re cover “damages in excess of the amount which represents the loss actually inflicted by the action of the defendant.” MCI Worldcom Network Servs., Inc. v. Mastec, Inc. , 995 So.2d 221, 223 (Fla. 2008). Unlike the typical loss

- of

- use scenario, Imperial did not lose the full use of the life insurance policies. Indeed, Imperial still stands to receive the main fruit of the policies: death benefits. Rather, Imperial, at most, lost one tangential use of the life insurance policies, and one that, as we discuss , was not foreseeable. To award the full measure of Imperial’s premium payments would therefore “bestow a windfall” on Imperial. Id. at 224.

Case: 17-10189 Date Filed: 09/18/2018 Page: 46 of 5747 reasonable cert ainty that the plaintiff suffered damages and that the damages flowed as the natural and proximate result of defendant’s . . . conduct.” Aldon Indus., Inc. v. Don Myers & Assocs., Inc. , 517 F.2d 188, 191 ( 5th Ci r . 1975) (applying Florida law). Consequently, a key inquiry in a breach of contract suit is whether a plaintiff’s asserted “damages were reasonably foreseeable to [the defendant] at the time the contracts were made.” Lipscher v. LRP Publ’n s, Inc. , 266 F.3d 1305, 1317 (11 th Cir. 2001) Where a plaintiff has failed to make this showing, “summary judgment is appropriate. ” Id. at 1318 ; see also ProfiTel Grp., LLC v. PolyOne Corp. , 238 F. App’x 444, 450 (11 th Cir. 2007) ; Gunster, Yoakley & Stewart, P.A. v. McAdam , 965 So.2d 182, 184 (Fla. 4th DCA 2007); Bothmann v. Harrington , 458 So.2d 1163, 1170 ( Fla. 3d DCA 1984)

. IPF has not sufficiently established the foreseeability of its claimed damages for breach of the rights

- and

- privileges clause to withstand summary judgment. Significant to our foreseeability analysis are Sun Life’s efforts , prior to issuing the policies subject to these disputes, to avoid having its policies enter the secondary market in the hands of investors. A lthough Sun Life might have foreseen that a few of its policies might nevertheless wi nd up in the hands of third parties , or that

some policy owners might seek to use the policies as collateral for discrete loan obligations (such as home mortgages), it had no reason to foresee that : (i) a large number of its policies w ould be transferred to the secondary market ; (ii) a single

Case: 17-10189 Date Filed: 09/18/2018 Page: 47 of 5748 secondary market investor would collect a large number of those policies; (iii) that investor would then seek financing to pay the premiums on those policies, and, in so doing, would try to bundle those policies to serve as collateral supporting a more than quarter

- billion dollar credit facility; (iv) the lender would refuse the policies as collateral in light of Sun Life’s questioning of the validity of the investor’s ownership of those policies; ( v) the investor would then seek other outside financing to make the premium payments; and (vi) that outside financing would be more costly than that offered by the investor’s credit facility. We do not think this chain of events can conceivably be described as foreseeable to Sun Life at the time it issued the policies

. We thus affirm the dismissal of IPF’s claim that Sun Lif e breached the rights

- and

- privileges clause

. b. Count IV (Fraud)
As we have discussed, a fraud claim under Florida law requires a showing of “an intentional material misrepresentation upon which the other party relies to his detriment.” Lance , 457 So.2d at 1011. IPF’s fraud claim proceeds on two theories: (i) Sun Life fraudulen tly misrepresented in the policy agreements that it would comply with the inc ontestability clause despite harboring a secret intent not to do so; and (ii) Sun Life fraudulently omitted from post

- contract communications to Imperial its internal view that th e policies were invalid and contestable and that Imperial was not their proper owner. The district court found no triable issue as to

Case: 17-10189 Date Filed: 09/18/2018 Page: 48 of 5749 either theory and therefore dismissed IPF’s fraud claim at summary judgment. We
agree . First , w e agree with the district court that IPF’s “secret intent” theory of fraud is duplicative of IPF’s breach of contract claim and therefore inactionable

. U nder Florida law , “[m ] isrepresentations relating to the breaching party’s performance of a contract do not give rise to any independent cause of action in tort, [where] such misrepresentations are interwoven and indistinct from the heart of the contract ual agreement.” Thompkins v. Lil’ Joe Records, Inc. , 476 F.3d 1294, 1316 (11th Cir. 2007) (quoting Hotels of Key Largo, Inc. v . RHI Hotels, Inc. , 694 So.2d 74, 78 ( Fla. 3d DCA 1997)) ; see also Tiara Condo

. Ass’n, Inc. v. Marsh & McLennan Cos., Inc. , 110 So.3d 399, 408

– 09 (Fla. 2013) (Pariente, J., concurring)

. IPF contends that this rule is no bar to its fraud claim , which, it argues, is independent fr om its breach of contract claim. In so arguing, IPF rel ies on cases that it contends permitt ed a fraud claim to proceed alongside a breach of contract claim where the plaintiff allege d that the defendant never intended , from the outset, to comply with the contractual provisions at issue. No. 17

- 10189 Br. of Appellant
at 36

– 42 (relying principally on Entron, Inc. v. Gen eral Cablevision of Palatka , 435 F.2d 995 (5th Cir. 1970) and Steak House , Inc. v. Barnett , 65 So.2d 736 (Fla. 1953)). I PF’s cited authority is inapposite. Those cases did not turn on a contract party’s secret intent not to comply with a contractual provision. Rather, in each

Case: 17-10189 Date Filed: 09/18/2018 Page: 49 of 5750 case , the misrepresentation supporting the defendant’s fraud claim was a pre contractual representation made by the defendant to the plaintiff expressly affirming that it would comply with the specific contract ual provision that it ultimately breached. For example, in Entron , the relevant contract required the defen dant to perform certain work within 60 days, which it did not do. The Fifth Circuit allowed a fraud claim to proceed not on the fact that the defendant harbored a secret intent not to comply with the 60

- day requirement, but because of “repeated
statements by [the] Vice President [prior to executing the contract] . . . that his company was strictly limited to the requirement that it have the job completed within sixty days.” 435 F.3d at 998. Stated differently, the plaintiff was independently induced into entering the contract by the defendant’s extra

contractual misrepresentations regarding its intent to comply with the 60

- day provision. Similarly, in Steak House , the plaintiff alleged that the defendant had a secret intent never to perform under a contr act but also that the defendant made “false and fraudulent statements and representations to plaintiff . . . to induce plaintiff to execute the agreement.” 65 So. 2d at 737 (internal quotation marks omitted)

. And , Steak House relie d on Pryor v. Oak Rid g e Dev elopment Corp. , 119
So. 326 (Fla. 1928), which made clear that “[a]s a general rule fraud cannot be predicated on a mere promise not performed

. . . . [T]o be available, there must be

Case: 17-10189 Date Filed: 09/18/2018 Page: 50 of 5751 a false assertio n in regard to some existing matter by which a party is induced .” Id. at 328 (internal quotation marks omitted and emphasis added). Here, IPF has not alleged that Sun Life made any representati on, independent from the incontestability c lause, that it would not challenge the validity of the policies after t he contestable period. Because the only source of IPF’s alleged inducement is the contract , this theory of IPF’s fraud claim may not proceed

. Second , w e reject IPF’s theory that Sun Life made actionable misrepresentations in post

- contract communications to Imperial. The statements on which IPF relies for this theory are notices sent by Sun Life stating that the policies were “in force,” “in good standing,” “active,” or that the contestability period had expired. No. 17

- 10189 Br. of Appel lant at 42. But, of course, IPF does

no t assert that those statements we re untrue. Rather, its theor y is that Sun Life did
not beli eve those statements to be true and fraudulently omitted its subjective beliefs from its notice s despite a duty to disclose them

. IP F’s fraudulent omission theory can not survive summary judgment. Even assuming arguendo that IPF sufficiently established that Sun Life omitted material facts in its post

- contract correspondence that it had a duty to disclose to Imperial, i t

Case: 17-10189 Date Filed: 09/18/2018 Page: 51 of 5752 i s unclear what act I PF claims Sun Life induced by those alleged omissions. 25 Perhaps IPF refers to Imperial’s conti nued payment of policy premiums. See No. 13

- cv - 80730, Dkt. No. 1 ¶ 115 (S.D. Fla. July 29, 2013). But, Imperial was contractually obligated to make those payments, and surely a counterparty’s subjective belief that a contract is invalid, without any outward manifestation, is insufficient to constitute a repudiation that would excuse Imperial from that obli gation. See Mori v. Matsu s hita Elec. Corp. of Am. , 380 So.2d 461, 463 (Fla. 3d DCA 1980) (a repudiation of a contract excusing a counterparty’s non

performance “must be distinct, unequivocal, and absolute”). IPF therefore has not shown that Sun Life’s al leged omissions induced Imperial to do anything that it would not have otherwise done. We affirm the district court’s dismissal of IPF’s fraud claim.
IV. Conclusion For the reasons stated above, we hereby AFFIRM in part and VACATE in part the judgments entered by the district court

. As to Sun Life’s complaint, we AFFIRM the district court’s dismissal of Count V (fraud conspiracy) and Count VII (declaratory judgment); and we

25 IPF identified no induced action in its briefs on appeal. See No. 17

- 10189 Br. of Appellant at 42

– 47; Reply Br. of Appellant at 22

– 23. Nor did it appear to tell the district court. In its brief presentation of its fraud by omission theory at the district court, the closest it came to asserting an induced act is contending that Sun Life’s omissions “misled Impe rial into believing that [Sun Life] intended to honor its obligations under the Policy when in fact the opposite wa s true.” Dkt. 471 at 18. A fraud claim requires an induced and harmful act , not simply an induced belief uncoupled from a corresponding act that manifested in an identifiable harm.

Case: 17-10189 Date Filed: 09/18/2018 Page: 52 of 5753 VACATE the district court’s dismissal of Count I (RICO), Count II (RICO conspirac y), Count III (fraud), Count IV (aiding and abetting fraud), and Count VI (tortious interference with contract ual relations ). As to IPF’s complaint, we AFFIRM the district court’s dismissal of Count II (breach of contract) to the extent it asserts a breach of the r ights

- and

- privileges

c lause, and Count IV (fraud); and we VACATE the district court’s dismissal of Count II (breach of contract) to the extent it asserts a breach of the incontestability

c lause. Both ca ses are REMANDED for further proceedings cons istent with this opinion. Case: 17-10189 Date Filed: 09/18/2018 Page: 53 of 5754 JORDAN, Circuit Judge, concurring. I join Judge Walker’s well

- written opinion for the court, and add the following on Imperial’s claim that Sun Life breached the incontestability provision in the policies.
As far as I can tell, only one court in the United States has addressed whether an insurer’s declaratory judgment action against an insured to void a policy, in violation of an incontestability provision, gives rise to a breach of contract claim by the insured. See American Nat’l Ins. Co. v. Schneider , 2013 WL 12156086, *3 (M.D. Fla. 2013) (holding, under Florida law, that an insured can sue its insurer for breach of an incontestability provision). Despite this general absence of authority, I agree with the court that Imperial’s breach of contract claim against Sun Life should proceed beyond the pleadings stage. As I explain, however, issues remain for the district court on remand with respect to this claim.
One leading insuran ce treatise posits that “an incontestability provision is designed to safeguard an insured from excessive litigation” after a certain period of time. See 17 Couch on Insurance 3d § 240:5 (2005). If this is so, there is a rough analogy to a contract not t o sue (sometimes called a covenant not to sue). See generally Restatement (Second) of Contracts § 285(1) (1981) (“A contract not to sue is a contract under which the obligee of a duty promises never to sue the obligor or a third person to enforce the duty[ .]”).

Case: 17-10189 Date Filed: 09/18/2018 Page: 54 of 5755 In at least some jurisdictions, an action filed in violation of a contract not to sue may under certain circumstances

— which vary by jurisdiction

— permit a suit for breach, with the measure of damages usually being the attorney’s fees and costs incur red in defending against the claim that was precluded. See, e.g., Lubrizol Corp. v. Exxon Corp. , 957 F.2d 1302, 1305

- 06 (5th Cir. 1997) (New York law); Anchor Motor Freight, Inc. v. Int’l Bhd. of Teamsters et al. , 700 F.2d 1067, 1072 (6th Cir. 1983) (fede ral law

– labor relations); Artvale, Inc. v. Rugby Fabrics Corp. , 363 F.2d 1002, 1008 (2d Cir. 1966) (federal law

– patent infringement

– and/or New York law); Borbely v. Nationwide Mut. Ins. Co. , 547 F.Supp. 959, 977 (D.N.J. 1981) (New Jersey law); Quill Co. v. A.T. Cross Co. , 477 A.2d 939, 944 (R.I. 1984) (Rhode Island law); Smith v. Garrett , 29 Tex. 48, 52 (1867) (Texas law). Consistent with these authorities, one district court applying Florida law has ruled that the breach of a contract not to sue is actionable. See Gregoire v. Lucent Technologies, Inc. , 2005 WL 1863429, *4 (M.D. Fla. 2005) (citing, among other cases, the Sixth Circuit’s decision in Anchor Motor Freight ).
Admittedly, other jurisdictions take a different approach. They allow a defendi ng party to seek attorney’s fees and costs for breach of a contract not to sue as long as the contract expressly authorizes such recovery. See, e.g., McKissick v.
Yuen , 618 F.3d 1177, 1191

- 92 (10th Cir. 2010) (Oklahoma law); Bukuras v. Mueller Group, LLC , 592 F.3d 255, 266

- 67 (1st Cir. 2010) (Massachusetts law);

Case: 17-10189 Date Filed: 09/18/2018 Page: 55 of 5756 Convey Compliance Sys. Inc. v. 1099 Pro, Inc. , 443 F.3d 327, 333

- 34 (4th Cir. 2006) (Minnesota law); In re Weinschneider , 395 F.3d 401, 404 (7th Cir. 2005) (Illinois law); Astor v. IBM Corp. , 7 F.3 d 533, 540 (6th Cir. 1993) (federal law

– ERISA).
Our holding today is that Imperial’s breach of contract claim, which is based on the incontestability provision, is viable under Florida law. But we leave a number of related (and important) issues unanswe red. On remand, the district court will need to figure out the scope of Imperial’s breach of contract claim, including the appropriate measure of damages.
In Florida, the damages typically available in a breach of contract action are those causally rela ted to the breach so long as they were contemplated by, or reasonably foreseeable to, the parties at the time they entered into the contract. See Poinsette Dairy Products v. Wessel Co. , 166 So. 306, 310 (Fla. 1936); Capitol Env. Services, Inc. v. Earth Te ch, Inc. , 25 So.3d 593, 596 (Fla. 1st DCA 2009); Mnemonics, Inc. v. Max Davis Associates, Inc. , 808 So.2d 1278, 1279 (Fla. 5th DCA 2002); Olin’s, Inc

. v. Avis Rental Car Sys. of Fla., Inc. , 172 So.2d 250, 252 (Fla. 3d DCA 1965). Another formulation is tha t, “[g]enerally, a person or entity injured by either a breach of contract or by a wrongful or negligent act or omission of another is entitled to recover a fair and just compensation that commensurate with the resulting injury or damage.” MCI Worldcom Net work Services, Inc. v.

Case: 17-10189 Date Filed: 09/18/2018 Page: 56 of 5757 Mastec, Inc. , 995 So.2d 221, 223 (Fla. 2008). I am confident that the parties, at the appropriate time, will provide the district court with their views on the issue.

Case: 17-10189 Date Filed: 09/18/2018 Page: 57 of 57