United States Court of Appeals for the Second Circuit August Term, 2021

(Argued: June 6, 2022 Final Briefs Submitted: January 23, 2024 Decided: August 8, 2024)

Docket No. 21-1830-cv

_____________________________________

ANDREW NITKEWICZ, as Trustee of the Joan C. Lupe Family Trust and on behalf of himself and all others similarly situated,

Plaintiff-Appellant,

v.

LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK,

Defendant-Appellee. _____________________________________ Before:

CALABRESI, LOHIER, and SULLIVAN, Circuit Judges.

The United States District Court for the Southern District of New York (Cronan, J.) concluded that Lincoln Life & Annuity Company of New York was not obligated under Section 3203(a)(2) of the New York Insurance Law to refund a payment that Andrew Nitkewicz, as trustee of the Joan C. Lupe Family Trust, had deposited into a policy account associated with Lupe’s life insurance policy five months before she died. Because no New York court had analyzed this provision of New York insurance law, and because that provision implicates significant New York State interests, we deferred decision on this appeal in order to certify the following question to the New York Court of Appeals: Whether a planned payment into an interest-bearing policy account, as part of a universal life insurance policy, constitutes a “premium actually paid for any period” under the refund provision of New York Insurance Law Section 3203(a)(2). Because the Court of Appeals has now answered the certified question in the negative, we conclude that the District Court did not err in dismissing the complaint seeking a statutory refund under Section 3203(a)(2). AFFIRMED.

Seth Ard (Alexander P. Frawley, on the brief), Susman Godfrey L.L.P., New York, NY, for Plaintiff-Appellant Andrew Nitkewicz, as Trustee of the Joan C. Lupe Family Trust and on behalf of himself and all others similarly situated.

John F. LaSalle (Alan B. Vickery, on the brief), Boies Schiller Flexner LLP, New York, NY, for Defendant- Appellee Lincoln Life & Annuity Company of New York. LOHIER, Circuit Judge:

In our prior opinion, Nitkewicz as Tr. of Joan C. Lupe Fam. Tr. v. Lincoln Life & Annuity Co. of N.Y., 49 F.4th 721, 730 (2d Cir. 2022) (Nitkewicz I), familiarity with which is assumed, we considered a universal life insurance policy issued in 2011 by Lincoln Life to the Joan C. Lupe Family Trust on the life of Joan C. Lupe. This case now returns to us following our receipt from the New York Court of Appeals of an answer to a certified question of New York law. See Nitkewicz as Tr. of Joan C. Lupe Fam. Tr. v. Lincoln Life & Annuity Co. of N.Y., 40 N.Y.3d 349, 358 (2023) (Nitkewicz II).

2 Unlike a term or whole life insurance policy where the policyholder pays fixed, periodic premiums, a universal life insurance policyholder can make payments in any amount at any time to an interest-bearing policy account administered by the insurer, subject to certain specified limitations. Every month, the insurer deducts from this account an administrative fee and the cost of insurance. “The remaining funds in the policy account can grow tax-free over time based on an interest rate set by the insurer and can fund future [insurance] deductions.” Nitkewicz II, 40 N.Y.3d at 352.

Lupe structured her payments to Lincoln Life in the form of an annual “Planned Premiu