### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1049

S UN L IFE A SSURANCE C O

. OF C ANADA

, Defendant

‐ Appellant

,

v.

U.S. B ANK N ATIONAL A SSOCIATION

, as Securities

Intermediary,

Plaintiff

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 14 CV 562

— William M. Conley

, Chief Judge

.

____________________

A RGUED S EPTEMBER 20, 2016

— D ECIDED O CTOBER 12, 2016

____________________

Before B AUER

, P OSNER

, and E ASTERBROOK

, Circuit Judges

.

P OSNER

, Circuit Judge

. A common law principle that so far

as we know is in force in every state of the United States for

‐

bids a person to own an insurance policy that insures some

‐

one else’s life unless the policy owner has an insurable inter

‐

est in that life. Ohio National Life Assurance Corp. v. Davis

, 803

F.3d 904, 907–08 (7th Cir. 2015). So you are allowed to own

an insurance policy on your spouse’s life because the death2 No. 16

‐ 1049

of the spouse is likely to impose costs on you, but you can

‐

not own an insurance policy on the life of a stranger who

you happen to know is in poor health and likely to die soon;

for cashing in such an insurance policy would give you a

pure windfall. (It would also, see id. at 906, hurt the insur

‐

ance company by shortening the period in which it would be

receiving premiums.) As the Supreme Court long ago sensi

‐ bly remarked, “It is well settled that a man has an insurable

interest in his own life, and in that of his wife and children; a

woman in the life of her husband; and the creditor in the life

of his debtor.

... The essential thing is, that the policy shall

be obtained in good faith, and not for the purpose of specu

‐ lating upon the hazard of a life in which the insured has no

interest.” Connecticut Mutual Life Ins. Co. v. Schaefer

, 94 U.S.

457, 460 (1876).

And there is the further concern, which figured largely in

the creation of the common law principle, that insuring a

stranger’s life gives the policy holder an incentive to shorten

that life. See, e.g., Grigsby v. Russell

, 222 U.S. 149, 154–55

(1911) (Holmes, J.).

The common law remedy for buying a life insurance pol

‐ icy without having an insurable interest in the life of the in

‐

sured was to invalidate the policy. But in 1975 the Wisconsin

legislature, while retaining the common law principle for

‐ bidding the purchase of a life insurance policy by one who

lacked an insurable interest, changed the remedy from can

‐ celling the policy to requiring the insurer to honor its prom

‐

ise. The revised statute provides that “no insurance policy is

invalid merely because the policyholder lacks insurable in

‐

terest

... but a court with appropriate jurisdiction may order

the proceeds to be paid to someone other than the person toNo. 16

‐ 1049 3

whom the policy is designated to be payable, who is equita

‐ bly entitled thereto.” Wis. Stat. § 631.07(4). The legislature

reasoned that “the best way to discourage insurers from is

‐ suing insurance policies to persons without insurable inter

‐

est is to make them [the life insurance companies] pay if they

do, not to permit them freely to issue such policies knowing

that they have a good public policy defense [the unenforcea

‐ bility of gambling contracts] that lets them off the hook

whenever a loss occurs.” Wis. Stat. § 631.07(4), comment.

In 2007 an insurance company named Sun Life (the de

‐

fendant in this case and the appellant in this court) issued a

$6 million policy on the life of a wealthy 81

‐ year

‐ old named

Charles Margolin. He died in 2014. U.S. Bank (the plaintiff in

this suit and the appellee in this court) had bought the policy

three years before Margolin’s death, becoming the policy’s

beneficiary. U.S. Bank is designated in the caption as a secu

‐

rities intermediary

, however, because Margolin’s policy either

is a security or has been bundled together with other life in

‐

surance policies to create a security or securities, and be

‐

cause U.S. Bank bought the policy as an intermediary on be

‐

half of another investor. See Jenny Anderson, “Wall Street

Pursues Profit in Bundles of Life Insurance,” New York Times

, Sept. 5, 2009, www.nytimes.com/2009/09/06/business/06ins

urance.html?_r=1 (visited Oct. 11, 2016).

Sun Life declared that it would refuse to pay U.S. Bank

the policy proceeds until it investigated the policy’s validity.

That refusal, should it ripen from tentative to definitive up

‐

on completion of the investigation, would be profitable be

‐

cause during the seven years that the policy was in force Sun

Life had collected and retained almost $2.5 million in premi

‐

ums paid by the successive owners of the policy. And even if4 No. 16

‐ 1049

Sun Life was ordered to return the premiums, see Venisek v.

Draski

, 150 N.W.2d 347, 353–54 (Wis. 1967), it would save $6

million if it didn’t have to pay U.S. Bank the policy proceeds.

Reacting to Sun Life’s declaration and armed by Wisconsin’s

requirement that insurers in Wisconsin pay claims within 30

days, Wis. Stat. § 628.46, U.S. Bank brought this diversity

suit against Sun Life, and prevailed in the district court; the

district judge ruled that the bank was entitled to the policy

proceeds—the $6 million—plus statutory interest and “bad

faith” damages for Sun Life’s foot dragging.

U.S. Bank insists that Wis. Stat. § 631.07(4) requires Sun

Life to pay the death benefit to the beneficiary of the policy,

namely U.S. Bank. It is true that the statute authorizes the

court to order the death benefit paid to someone else, but

only to a someone else who is equitably entitled to it. And

no one who is equitably entitled to the proceeds of the Sun

Life policy has stepped forward to claim them; therefore the

beneficiary, U.S. Bank, is entitled to them.

Against this Sun Life makes three arguments. One is that

its refusal to pay the death benefit is authorized and in fact

compelled by another Wisconsin statute, Wis. Stat. § 895.055,

which with immaterial exceptions voids all gambling con

‐

tracts. But still another statutory provision, Wis. Stat.

§ 600.12(2), provides that if a section of the state’s insurance

code conflicts with a section of another code, the section in

the insurance code governs. Wis. Stat. § 631.07(4), the section

under which U.S. Bank is suing, is a provision of that code,

as the code encompasses chapters 600 to 655 of the Wiscon

‐

sin statute book and sections 600.12(2) and 631.07(4) are both

within that range. Sun Life argues that the two statutes don’t

actually conflict, but the distinction it tries to draw, betweenNo. 16

‐ 1049 5

insurance policies that are wagers and insurance policies in

which the policyholder lacks an insurable interest, does not

exist. As explained in Grigsby v. Russell, supra

, 224 U.S. at

154, “a contract of insurance upon a life in which the insured

has no interest is a pure wager.” Nevertheless Wis. Stat.

§ 631.07(4) makes clear that as the beneficiary of the policy

U.S. Bank is entitled to the proceeds of it.

Sun Life’s second argument is grounded in Article IV,

section 24, of the Wisconsin Constitution, which states that

“except as provided in this section, the [Wisconsin] legisla

‐

ture may not authorize gambling in any form.” But the legis

‐

lature has not done that in Wis. Stat. § 631.07(4), or any

‐

where else for that matter. Gambling contracts, including life

insurance policies that lack an insurable interest, are still

forbidden. The statute changed only the remedy for viola

‐

tion, from invalidation of the policy to requiring the insurer

to cough up the proceeds rather than—as Sun Life claims

entitlement to—being allowed to keep all the premiums and

pay nothing to the policy holder because the latter had no

insurable interest in the policy.

Sun Life’s third argument is limited to the district judge’s

award of statutory interest, and of damages for acting in bad

faith. The statute we cited earlier that requires payment of

insurance proceeds within 30 days requires interest on de

‐ layed payments at the rate of 12 percent a year unless the

insurer has “reasonable proof,” lacking here, that it does not

have to pay the claim. Wis. Stat. § 628.46. And bad faith,

which requires showing that the insurer lacked a “reasona

‐

ble basis” for the delay and acted with “knowledge or reck

‐

less disregard” of the lack, Anderson v. Continental Ins. Co.

,

271 N.W.2d 368, 376 (Wis. 1978), has been proved as well.6 No. 16

‐ 1049

The judgment of the district court is

A FFIRMED

.