Sun Life Assurance Co. of Canada v. Imperial Premium Finance, LLC

United States Court of Appeals for the Eleventh Circuit · 2018 · Contracts

904 F.3d 1197 (2018)

Updated July 19, 2026

Contractsincontestability clausebreach of contractFlorida lawchoice of lawwaiverlitigation privilegefraud

Facts

Sun Life issued life insurance policies to seniors, and Imperial later acquired many of them after financing premiums through non-recourse loans secured by the policies. Sun Life alleged Imperial used producers to recruit seniors, submit applications falsely denying planned premium financing or secondary-market transfer, conceal Imperial's involvement during the two-year contestable period, and then obtain ownership after default. Sun Life sued for RICO, fraud, conspiracy, tortious interference, aiding and abetting fraud, and declaratory relief. IPF responded that Sun Life's later challenges to the policies breached the policies' incontestability and rights-and-privileges clauses and also constituted fraud.

Issue

Whether Sun Life waived reliance on non-Florida law by failing to plead and prove foreign law, whether the policies' incontestability clause barred Sun Life's fraud-based claims seeking damages rather than rescission, and whether IPF could sue Sun Life for breaching the incontestability clause by filing an untimely declaratory judgment action. The court also addressed whether several dismissed tort and RICO-related claims were sufficiently pleaded.

Rule

Under Florida choice-of-law practice, a party waives reliance on non-forum law by failing timely to plead and prove it, allowing the court to assume foreign law is the same as Florida law. An incontestability clause barring the insurer from contesting a policy after two years precludes untimely efforts to void or rescind the policy, but does not bar fraud-based claims that seek only damages and leave the policy fully in force. Under Florida law, breach of an incontestability clause may support a damages action, and Florida's litigation privilege does not automatically immunize the filing of a lawsuit when that filing is itself alleged to breach a contract.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A life insurer sued in federal court in Miami over several policies issued to residents of different states. In its complaint and early motion papers, the insurer argued only Florida law, mentioned that a choice-of-law analysis might later matter, and never identified where any policy was executed or supplied the substance of any other state's law.

When the court interprets the policies, which approach is most consistent with the governing rule?

Explanation. Under Florida choice-of-law practice, a party seeking application of non-forum law must timely plead and prove it by providing the facts and legal sources needed for the analysis. Merely saying choice of law may matter later is not enough. If the party does not do so, the court may assume foreign law is the same as Florida law and apply Florida law.