[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 17-10189, 17-10415

________________________

D.C. Docket Nos. 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 COMPANY OF CANADA, 

 Plaintiff - Appellant,

versus

IMPERIAL HOLDINGS, INC., 

IMPERIAL PREMIUM FINANCE, LLC, 

IMPERIAL LIFE FINANCING II, LLC, 

IMPERIAL LIFE SETTLEMENTS, LLC, 

IMPERIAL PFC FINANCING, LLC, et al.,

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2

 Defendants - Appellees.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(September 18, 2018)

Before MARTIN, 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, against Imperial 

Holdings, Inc. and its affiliates (“Imperial”), a company that offers financing for 

insureds to pay their monthly premium payments. Both suits relate 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 

upon the deaths of the insureds. Sun Life alleges that Imperial’s ownership of the 

policies violates state laws that are designed to prohibit wagering on human lives, 

but, more centrally, that Imperial secured the policies through an unlawful and

tortious conspiratorial scheme. Imperial, for its part, contends that its acquisition 

and ownership of the policies is lawful, and alleges that Sun Life’s attempts to 

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

Appeals, sitting by designation.

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interfere with its ownership of and rights under the 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 policies that, upon 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 concerns: (i) limiting the 

ability to wager on human life and (ii) promoting the free assignability 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. No. 88 

(S.D. Fla. Nov. 5, 2013) (hereinafter generally, “Dkt. []”).

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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 

affiliated 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, naming as the policy beneficiary an irrevocable 

life insurance trust established for the benefit of his or her spouse and/or children; 

(ii) the insured secured non-recourse financing for the payment of the monthly 

policy premiums from Imperial, with the policy 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 include 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-cv80730, 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. 

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policy if the borrower defaulted; and (iv) the borrower defaulted, leading Imperial 

to take ownership of the insured’s policy. 

Once Sun Life learned of Imperial’s procurement of the policies, it began to 

question the propriety of Imperial’s ownership, both under the insurance contracts 

and under state and federal law. Sun Life’s doubts as to the lawfulness of 

Imperial’s acquisition and ownership of the policies led to the two competing

lawsuits that are the subjects of the instant appeals.

Sun 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 issued 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. Desirous 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 

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not to Imperial) and policies that would likely be paid out in the short term (less 

profitable to Sun Life but more profitable to Imperial). 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. “At the core of Imperial’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.” Dkt. 

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 senior citizens in obtaining the requisite medical records and 

life expectancy reports, which the producers 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 producers “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. 

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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 would 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 provide 

financing for the insureds’ 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.

After 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 ¶¶ 358, 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 the 

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-trustee, and virtually eliminated any discretion on the part 

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of the original 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 

acquired 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,

Imperial’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 Organizations Act (“RICO”), 18 U.S.C. 

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§ 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) declaratory 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 breached two provisions in the 

policy agreements. First, IPF alleged that Sun Life breached the policies’ 

“incontestability clause,” which provides:

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 

summary judgment. See Dkt. 194, 212. The district court dismissed IPF’s implied covenant 

claim at summary judgment. IPF does not appeal this ruling. 

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Dkt. 472-1 at 14. Imperial not only invoked the incontestability clause as a 

complete defense to 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 breached the same clause entitling IPF to 

damages. 

Second, IPF contended that Sun Life breached the policies’ “rights-andprivileges clause,” which provides:

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. 472-1 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) failing 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 these 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 

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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 of any policy 

financed or acquired by Imperial (or any other premium finance company). 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 the 

contrary. IPF alleged that Sun Life intended by these misrepresentations 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 ¶ 

115 (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) tortious interference with contractual 

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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, 

concluding that those claims are barred by the policies’ incontestability clause. 

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 clause.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 10565034 

(S.D. Fla. Sept. 22, 2016). IPF 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 37–42. Dkt. 291. Sun Life sought an 

immediate appeal to this Court under the collateral order doctrine, but we dismissed 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). 

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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, we review each de novo. Jara v. Núñez, 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 judgment, 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 governing law.” Baas, 886 

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F.3d at 1091 (internal quotation marks omitted). In 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 decisions 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 states’ 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 the law of the state of the contract’s execution. See

State Farm Mut. Auto. Ins. Co. v. Roach, 945 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 necessary to complete [the] contract,”

which is most often the offeree’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.

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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 Insurance 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, we 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 claims, 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 determine 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 states’ laws it believed 

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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 first motion 

or response when choice-of-law matters—the sources of non-forum 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 and 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 insurance 

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. filed 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).

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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 applied 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 in 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 

Life likely viewed this as sound strategy, evidenced by its citations to numerous 

federal district courts applying Florida law to conclude 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-ofCase: 17-10189 Date Filed: 09/18/2018 Page: 17 of 57 
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law analysis in opposition 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, asserting that it was 

Imperial’s burden to “come forward with the authority” necessary for the 

application 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 

for 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 Life and not the district court. 

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For the foregoing reasons, we conclude that Sun Life waived its opportunity 

to rely on non-forum law to interpret the policies at issue. Consequently, we

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) were 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 declaratory judgment claims, but we 

vacate the dismissal of Sun Life’s remaining claims. 

a. Count I (RICO) & 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, Imperial 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. § 1341, and wire fraud, 18 U.S.C. § 1343. SL SAC ¶ 360.

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Imperial directed the producers to falsely represent on the application forms (which 

they transmitted to Sun Life through United States mail or interstate wire) that the 

insureds did not plan to acquire premium financing or to transfer their policies to 

the secondary market. Sun Life issued the policies which it would not have done

had it known of the misrepresentations on the applications.

Aware that Sun Life could challenge 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, Imperial 

forgave the insureds’ debts to induce the insureds to transfer ownership of the 

policies to Imperial. Sun Life, now effectively time-barred by the incontestability 

clause from contesting the validity of the policies, was stuck with the investorowned 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 policies in ways that Sun Life knows a typical policy consumer 

does not, which makes the policies less profitable to Sun Life.

The district court dismissed Sun Life’s RICO and fraud claims bottomed on 

the foregoing scheme at summary judgment, concluding that those claims are timebarred by operation of the incontestability clause. On appeal, Imperial defends the 

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21

district court’s conclusion.

10 The issue here is therefore straight-forward: does the 

incontestability clause bar Sun Life from asserting its RICO and fraud claims?11 

We conclude that it does not and vacate the district court judgment to the contrary.

As discussed, the incontestability clause provides 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. 472-1 at 14. As Sun Life does not dispute that it brought its RICO and fraud 

claims more than two years after issuance of each of the relevant policies, the only 

issue is whether, through those claims, Sun Life “contest[s]” the policies.

Imperial argues that any fraud-based claim that is related to the policies is a 

“contest[ing]” of the policies and is therefore barred by the incontestability clause. 

In fact, Imperial goes so far as to contend that the incontestability clause bars 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 have 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 that 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 fraud 

claims against IHI, we need not resolve this dispute. 

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22

Life from “mak[ing] the Policies the subject of a legal case.”12 No. 17-10415 Br. 

of Appellees at 26–27. Sun Life disagrees, contending that an insurer “contests” 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 upon 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 policies are investor-owned rather than consumerowned. 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 an insurer’s fraud-based claim that 

seeks 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 that 

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 

interpret 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 14–18; 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 “contest” the policy.

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first time we have confronted the issue. In Kane, life insurance companies filed 

suit beyond the contestable period seeking to void policies on the ground that the 

insured fraudulently misrepresented his criminal history in his applications. 885 

F.2d at 820–21. As relevant here, the insurers argued that even if the 

incontestability clause barred their contract claims, the clause could not bar their 

fraud claims, citing Guarantee Trust Life Insurance 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. Although 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 did not seek to void the

policy. And at least one court has relied on Kane to conclude that Florida’s 

incontestability 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. 

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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 obligation 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 clause 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. See 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 uniformly 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 

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engaged in fraud or misrepresentation.” (emphasis added)); Allstate Life Ins. 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)).

Where, 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 Utah, and the Family Insurance Trust, to commit RICO predicate acts and 

common law fraud. SL SAC ¶¶ 367, 390. The alleged conduct underlying both

conspiracy claims was 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.

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Sun Life’s fraud conspiracy claim but vacate 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 and 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 does not meet these 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 Imperial 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 insurance applications 

to Sun Life, see SL SAC ¶¶ 32, 34, 35, 54, 68, 79, 91, 108, 122, 134, 147, 158, 

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 the producers acted as Imperial’s agents in submitting the life insurance 

applications.” Dkt. 215 at 2 (sealed).

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(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]ust 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 producers, 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 true, it did not so 

plead. Rule 8(d)(2) requires that “alternative statements” be “set out” in the pleading, a 

requirement that 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 in 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”).

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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 pled RICO predicate racketeering acts: the commission of 

mail and wire fraud, 18 U.S.C. §§ 1341, 1343, which “[b]oth . . . require 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, 486 F.3d 

1212, 1222 (11th Cir. 2007). Sun Life met its burden by alleging that the

producers used 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 insureds did not intend for policy premiums to be financed 

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29

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 precisely 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.

Consequently, 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 did not actually contain misrepresentations made by the 

producers 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. 

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omitted).

19 Assuming the cause of action exists, the 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 Defendant 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, we have already identified the 

allegations supporting the plausibility of an underlying fraud of someone other 

than Imperial (the producers). See supra at 28–29. Second, Sun Life has alleged 

that Imperial knew about the producers’ fraudulent application statements. See SL 

SAC ¶ 63. And third, Sun Life has alleged 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 reviewed the applicants’

medical records to determine if the policies were ones that Imperial would want to 

finance, see, e.g., SL SAC ¶¶ 39, 57, and that Imperial compensated 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.3d 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 contractual 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.

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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 an aiding and abetting fraud claim, and

we 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 fraudulent applications to Sun Life. The 

elements of a Florida law tortious interference with contractual relations claim are: 

(i) the existence of a contract; (ii) the defendant’s knowledge thereof; (iii) the 

defendant’s intentional and unjustified procurement of a breach thereof; and 

(iv) damages. See Johnson Enters. 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.

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Imperial raises three arguments in support of the dismissal of Sun Life’s 

tortious 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 tortiously interfere with its agents’ 

contracts. We are unpersuaded.

Imperial’s first two arguments can be quickly set aside. Sun Life expressly 

alleged that Imperial knew of the producers’ contracts with Sun Life. SL SAC

¶ 397. Contrary 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 contracts. As discussed above, Sun Life alleged that Imperial’s scheme 

depended on (and, significantly, incentivized) the producers’ submission of 

fraudulent statements 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 could 

not have tortiously interfered with the producers’ contracts in light of Sun Life’s

allegations that the producers were Imperial’s agents. Even if there are instances 

in which a principal cannot tortiously interfere with its agent’s contracts, the agent 

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33

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 Imperial 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 entered into those contracts for

Imperial’s benefit. See Ilgen v. Henderson Props., Inc., 683 So.2d 513, 515 (Fla.

2d DCA 1996).21 

Consequently, we conclude that, at this stage, Sun Life has adequately pled 

its tortious interference with contractual 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 Imperial 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 to that contract (thought it may have a breach of 

contract claim). Nevertheless, this dispute is properly the subject of subsequent stages of this 

litigation.

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e. Count VII (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 premise of the claim is that the 

policies owned by Imperial are unlawful in light of state law prohibiting the 

procurement of life insurance policies in which the beneficiary lacks an “insurable 

interest” in the insured individual at the time the policy is issued. 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 

Insurance Co., 200 So.3d 1202 (Fla. 2016). See No. 17-10415 Reply Br. of 

Appellant at 2 n.2; Pruco, 200 So.3d at 1205–06 (concluding 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 individuals with insurable interests” 

(emphasis added)).

III. IPF’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 

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35

scheme. The district court dismissed one theory of IPF’s contract 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). IPF asserts that Sun Life’s efforts to obstruct 

Imperial’s ownership rights separately breached two provisions of the policy 

agreements: (i) the incontestability clause; and (ii) the rights-and-privileges 

clause.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 the

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.11) 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’ contract. 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 where 

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 failure 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 under 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, 1331 (11th 

Cir. 2004).

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36

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 clause.23 The district court dismissed this theory at

the pleading stage, 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 21–25, 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 clause.

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 choiceof-law analysis prior to addressing the impact of the incontestability clause, see 

supra at 14–18; and (iii) a declaratory judgment claim is not a “contest” to the 

policies, see supra at 36. Additionally, Sun Life raises the following arguments:

 23 To the extent IPF alleges that Sun Life breached the incontestability clause through its fraudbased claims, we disagree for the reasons stated supra at 19–25.

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(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 an 

incontestability clause is not actionable for a damages suit under Florida law. We 

disagree with both contentions.

1. Florida’s Litigation Privilege

Sun Life contends that it cannot be sued for filing its declaratory judgment 

claim 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, 950 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 

judgment claim is protected by the privilege. The district court ultimately 

disagreed. See Dkt. 293 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 statements 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 

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38

Insurance Co., 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 engage 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’rs., 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 Supreme 

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, the 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 

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39

course of a judicial proceeding . . . so long as the act has some 

relation to the proceeding.”

950 So.2d at 384 (quoting Levin, 639 So.2d at 608)).

Echevarria, however, is not the Court’s latest word on Florida’s litigation 

privilege. In 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 an 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] longestablished 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 applicability 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

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act that allegedly breached the contract was the filing of a lawsuit. 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 lawsuit 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 breached the parties’ nondisparagement agreement. The Florida appellate court held that James was 

protected by the litigation privilege from facing suit on both the defamation and the 

breach of contract claims. In a straight-forward application of Levin, the court 

dismissed the defamation claim because the allegedly defamatory statements “had 

some relation to [James’] divorce proceeding.” 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 the 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 

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a contract. Although James allowed an immunity defense to defeat a breach of 

contract claim, the underlying conduct for which 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 defamation or breach of contract) could have a 

serious “chilling effect.” James, 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 contract

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” longstanding 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 prosecution 

tort precisely because the first element of the tort is the filing of a lawsuit. Id. 

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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. Commc’ns., Inc. v. Directv, Inc., 2015 WL 

10960959, at *2 (N.D. Fla. Nov. 16, 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, 140 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 freedom 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). For example, 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 immunizes it

from IPF’s claim that Sun Life’s suit breached the incontestability clause.

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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 

court accepted the argument, concluding that the incontestability clause may be 

“raised [only] as a shield, not a sword.” 2016 WL 10565034, at *3. We disagree.

It is a core principle, of course, that generally a contractual 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 unpersuasive.

Sun Life relies on a line of Florida cases concluding that an incontestability 

clause is “in the nature of, and serves 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 

contractual contestable period. The argument’s premise is hollow. In cases that 

have analogized an incontestability clause and a statute of limitation, 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 878–89. But, a 

limitations period and a contestable period are fundamentally different: the first is 

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solely a creature of statute, violations of which do not generally entitle the 

aggrieved person to seek redress, and the second is found in a contractual 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 upon their breach. Otherwise, we 

see no reason why the legislature simply would not have directly prohibited 

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 that 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 life insurance policy after the contestability 

period is analogous to the tenant in its example providing only 45 days’ notice of 

its election to renew. No. 17-10189 Br. of Appellee at 28. The comparison is 

specious. The incontestability clause here contains clear prohibitive language 

(“cannot contest”) that the hypothetical lease (“option to renew”) does not. 

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We conclude that an incontestability clause, like nearly all contractual 

prohibitions, may allow for damages upon its breach. We therefore vacate the 

district court’s dismissal of IPF’s claim that Sun Life breached the incontestability 

clause. 

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 this “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 sufficiently establish the damages element of this

contract theory. We agree.

Each of the harms IPF identifies on appeal relates 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 into 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. Pursuant 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 structure. See

Imperial Holdings, Inc., Annual Report (Form 10-K) (Mar. 10, 2014), 1–2, 26, FCase: 17-10189 Date Filed: 09/18/2018 Page: 45 of 57 
46

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 that 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 contended, Imperial was 

required to seek alternative financing 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 were 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.” Caulkins 

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 recover “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.

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reasonable certainty 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 Cir. 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’ns, Inc., 

266 F.3d 1305, 1317 (11th 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 (11th 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. Although Sun Life might have foreseen that a 

few of its policies might nevertheless wind 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 would be transferred to the secondary market; (ii) a single 

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48

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 Life 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 fraudulently misrepresented in the policy agreements that it 

would comply with the incontestability 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 the policies were invalid and contestable and that 

Imperial was not their proper owner. The district court found no triable issue as to 

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49

either theory and therefore dismissed IPF’s fraud claim at summary judgment. We 

agree.

First, we 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. 

Under 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 contractual 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 from its breach of contract claim. In so arguing, IPF relies on cases

that it contends permitted a fraud claim to proceed alongside a breach of contract 

claim where the plaintiff alleged 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. General Cablevision of Palatka, 

435 F.2d 995 (5th Cir. 1970) and Steak House, Inc. v. Barnett, 65 So.2d 736 (Fla. 

1953)). IPF’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 

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50

case, the misrepresentation supporting the defendant’s fraud claim was a precontractual representation made by the defendant to the plaintiff expressly 

affirming that it would comply with the specific contractual provision that it 

ultimately breached. 

For example, in Entron, the relevant contract required the defendant 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 extracontractual 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 contract 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 relied on Pryor v. Oak Ridge Development 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 

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51

a false assertion 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 representation, 

independent from the incontestability clause, that it would not challenge the 

validity of the policies after the 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, we 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 Appellant at 42. But, of course, IPF does 

not assert that those statements were untrue. Rather, its theory is that Sun Life did 

not believe those statements to be true and fraudulently omitted its subjective 

beliefs from its notices despite a duty to disclose them. 

IPF’s fraudulent omission theory cannot 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, it

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52

is unclear what act IPF claims Sun Life induced by those alleged omissions.25 

Perhaps IPF refers to Imperial’s continued 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

obligation. See Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 

3d DCA 1980) (a repudiation of a contract excusing a counterparty’s nonperformance “must be distinct, unequivocal, and absolute”). IPF therefore has not 

shown that Sun Life’s alleged 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 Imperial into believing that [Sun 

Life] intended to honor its obligations under the Policy when in fact the opposite was 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.

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53

VACATE the district court’s dismissal of Count I (RICO), Count II (RICO 

conspiracy), Count III (fraud), Count IV (aiding and abetting fraud), and Count VI 

(tortious interference with contractual 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 rights-and-privileges 

clause, 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 

clause.

Both cases are REMANDED for further proceedings consistent with this 

opinion.

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54

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 insurance 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 to 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[.]”). 

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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 

incurred 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) (federal 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 

defending 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);

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56

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.3d 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 unanswered. 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 related 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 Tech, 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 that, “[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 Network Services, Inc. v. 

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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.

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