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Friday, June 25, 2010

Ind. Decisions - One Indiana opinion today from 7th Circuit

In Lincoln Nat'l. Life v. Bezich (ND Ind., Van Bokkelen), an 8-page opinion, Judge Wood writes:

This petition for permission to appeal arises out of a class action lawsuit that Peter Bezich is attempting to pursue in the state courts of Indiana. Bezich’s complaint asserts that Lincoln National Life Insurance Company breached the terms of certain variable life insurance policies it issued. Each month, Lincoln deducts cost-of-insurance charges from the accounts of its policyholders; the charges, Bezich contends, are not determined based on expected mortality, as promised by the policy. Lincoln attempted to remove the suit to federal court under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453, but the district court remanded the suit based on CAFA’s exception to federal jurisdiction for an action “that solely involves a claim . . . that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder).” Id. § 1332(d)(9)(C). In this court, Lincoln would like to challenge the district court’s conclusion that § 1332(d)(9)(C) applies. It contends that its petition raises a “novel and important issue” under CAFA: “whether contract claims grounded in the traditional insurance features of variable life insurance policies, as opposed to those related to their security features, qualify under the securities exception to CAFA.” Because we agree with the district court that § 1332(d)(9)(C) applies, and this also means that we lack appellate jurisdiction, we dismiss the petition for leave to appeal. See 28 U.S.C. § 1453(d)(3). * * *

We conclude that Bezich’s claim “relates to the rights, duties, . . . and obligations relating to or created by or pursuant to . . . [a] security,” as defined in the 1933 Act, and thus we have no jurisdiction to entertain its petition for review of the district court’s order remanding the case to state court. DISMISSED FOR WANT OF JURISDICTION.

Posted by Marcia Oddi on June 25, 2010 11:42 AM
Posted to Ind. (7th Cir.) Decisions