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WEISS v. SUISSE

August 10, 2005.

AGI WEISS, Individually and as Executrix of the Estate of PAL WEISS, and as Assignee, Representative and/or Nominee of Certain LA SUISSE Policyholders, Plaintiff,
v.
LA SUISSE, SOCIETE D'ASSURANCES SUR LA VIE, Defendant. ISAC HIRSCH, CHANA DEUTSCH, CHUME FULOP, FAIGY BRACH, ISAC ROSENBERG, as Assignee, ARON DEUTSCH, as Assignee, and SOLOMON KAHAN, as Assignee, and All others similarly situated, Plaintiffs, v. LA SUISSE, SOCIETE D'ASSURANCES SUR LA VIE, Defendants.



The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DISMISSING CLAIMS BROUGHT PURSUANT TO 42 U.S.C. § 1981 AS TIME BARRED
At the direction of the Court, the defendant in this consolidated action — in which a class has been certified only on the claim brought pursuant to 42 U.S.C. § 1981 — has moved for summary judgment dismissing the class claim on the ground that it is time barred. This motion is granted as to all parties plaintiff except Agi Weiss and the 54 policies she represents in the action she commenced over two years prior to the filing of the class complaint. As to Mrs. Weiss, the motion is denied without prejudice.

According to the Hirsch Complaint,*fn1 the facts are as follows:

  La Suisse is a life insurance company, organized and doing business in Switzerland, authorized to issue individual life insurance policies that are valid worldwide. Complaint ("Cplt.") ¶¶ 11, 13, 14. Plaintiffs are members of New York Orthodox and Hassidic Jewish communities. Cplt. ¶ 15. From 1989 to 1994, defendant marketed and sold insurance policies in New York through its authorized representative in Monroe, NY. Cplt. ¶ 16. Plaintiffs bought certain insurance policies from Defendant's representative described as "mixed life" insurance policies which contained marriage event clauses. Cplt. ¶¶ 19, 20. These clauses provided for advance payment of benefits or "insured capital" in the event of marriage prior to the insurance termination dates stated in each policy. Cplt. ¶ 20. Approximately 7,000 of these "mixed life" policies were sold in the United States — mainly in the Hassidic communities of Kiryas Joel, Monsey, and Brooklyn, New York. Cplt. ¶ 21.

  Each of the "mixed insurance" policies were issued on the life of a child and contained a marriage event clause that triggered full acceleration of the face amount of the policy prior to the maturity date. Cplt. ¶ 24. Most of these policies contained Final Maturity Dates of 15 or 16 years after the stated Beginning of Contract Date. Cplt. ¶ 23.

  Under these "mixed life policies" benefits were payable in one of three ways: (1) in the event the insured survived to the "End of Contract" date, the face amount was due; (2) in the event the insured died before the "End of Contract" date, the face amount of the policy was due; and (3) in the event the insured married before the "End of Contract" date, the face amount of the policy was due. Cplt. ¶ 25. The face amount of each policy is 50,000 Swiss Franks or 100,000 Swiss Franks. Cplt. ¶ 29.

  Plaintiffs allege that defendant failed and refused to pay marriage-event benefits due under the policies; failed to confirm coverage under the policies; failed to acknowledge correspondence from policyholders, beneficiaries or assignees of interests under the policies; failed to reinstate policies in accordance with policy terms; wrongly and intentionally allowed policies to lapse without acceptance of duly-tendered premiums under the policy terms; failed and refused to honor loan requests in accordance with the terms and conditions of the policies; and failed to acknowledge proof of marriage supplied by policyholders, beneficiaries and/or assignees of interests under the policies. Cplt. ¶ 28. As to these breach of contract claims, I have denied a motion for class certification. See Hirsch v. La Suisse, 226 F.R.D. 446 (S.D.N.Y. 2005).

  Plaintiffs further allege that defendant violated 42 U.S.C. § 1981 by intentionally discriminating against plaintiffs and the class based upon their ethnic and racial identity. Cplt. ¶ 64. As to this federal claim, I certified a class consisting of all persons (other than the persons who were parties to an earlier action involving the same allegations, see infra) who purchased marriage policies between January 1, 1989 and June 30, 1995. See Hirsch v. La Suisse, supra. Prior History

  This is not the first action in which these allegations of racial discrimination have been asserted — and that fact is highly relevant for statute of limitations purposes.

  In Kalman Weiss v. La Suisse, 97 Civ. 1352 (CM)(MDF), (hereinafter "La Suisse I"), thirty similarly situated plaintiffs sued La Suisse, asserting claims identical to those made by Weiss and the Hirsch named plaintiffs. This fiercely litigated case went to trial in early 2004. Some of the individual plaintiffs prevailed on their contract claims, but defendants prevailed on all other claims, including the claim of racial/ethnic discrimination. The verdict, as well as this court's rulings on choice of law and its decision to dismiss La Suisse's fraud counterclaim, was recently affirmed on appeal by a panel of the United States Court of Appeals for the Second Circuit. See Weiss v. La Suisse, No. 04-2589-cv, ___ F.3d ___, 2005 WL 171912 (2d Cir. July 22, 2005). In the summary order affirming the judgment dismissing the plaintiffs' civil rights claim, the Second Circuit flatly stated, "Plaintiffs failed to adduce any evidence to suggest that these reasons were pretexts masking an intent to discriminate on the basis of race in violation of § 1981." Id. at *1 (emphasis added).

  La Suisse I was not originally filed as a class action. However, on June 7, 2001 — well over four years after the suit was originally brought (on February 27, 1997) — plaintiffs in La Suisse I moved, pursuant to Fed R. Civ. P. 15(a), for leave to file a Second Amended Class Action Complaint, in which for the first time they purported to assert their claims on behalf of a class. The class they sought to represent is virtually identical to the class I have certified in this action — the only difference being that our class includes purchasers of marriage policies through June 30, 1995, whereas the purported class in La Suisse I included only purchasers of marriage policies through June 30, 1994). The motion for leave to file a second amended complaint and for class certification was denied as untimely on September 14, 2001. Weiss v. La Suisse, 161 F. Supp. 2d 305, 319 (S.D.N.Y. 2001).

  In March 2003, the same lawyers who represented plaintiffs in La Suisse I filed a purported class action in the United States District Court for the Eastern District of New York. That action (Isac Hirsch v. La Suisse) was transferred to this court in later 2004, where I consolidated it with a similar case that had been brought on February 8, 2001 by plaintiff Agi Weiss (not purporting to represent a class, but representing a number of policies purchased by herself and her husband).*fn2

  Now La Suisse seeks dismissal of both the § 1981 class claim (first asserted on March 3, 2003) and Agi Weiss's identical § 1981 claims (first asserted on February 8, 2001) on statute of limitations grounds.*fn3 DISCUSSION

  The Class Plaintiffs' Claims are Barred By the Four Year Statute of Limitations (28 U.S.C. § 1658)

  Plaintiffs bring their federal claims under 42 U.S.C. § 1981(b), which prohibits discrimination in the performance, modification, and termination of all benefits, privileges, and conditions of the contractual relationship. Because subsection (b) of § 1983 was enacted after December 1, 1990, it is subject to the four year statute of limitations found in 28 U.S.C. § 1658. ...


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