2007-331, ROBERT NENNI & a. v. COMMISSIONER, NH INSURANCE DEPARTMENT

No. 2007-331

Merrimack

Polaris II, the petitioners became part of a group comprised of individuals The Polaris II is a group variable annuity product. Upon purchase of the

Each annuity cost $350,000, resulting in a total initial investment of $700,000. annuity (Polaris II) sold by Anchor National Life Insurance Company (Anchor). about January 3, 2000, each petitioner purchased the Polaris II variable order of the Superior Court (Conboy The parties stipulated to, or the record reveals, the following facts. On or BRODERICK, C.J. The petitioners, Robert and Arlene Nenni, appeal the

Michael J. Di Cola

Kelly A. Ayotte

affirm. Commissioner of the New Hampshire Insurance Department (department). We judgment and granting summary judgment to the respondent, the

THE SUPREME COURT OF NEW HAMPSHIRE general, on the brief), for the respondent.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as annuity contract from the department. They received a letter from the p. 2 In July 2005, the petitioners requested a copy of the master group

First National Bank, Trustee. Nebraska Department of Insurance and issued in Nebraska to Community delivery in New Hampshire. Rather, that contract was reviewed by the reviewed or approved the master group annuity contract for issuance and issuance and delivery in New Hampshire. The department, however, has not In 1999, the department reviewed and approved this certificate for

made as shown on the Certificate Data Page. the Right to Examine period. Thereafter, allocations will be

Payment(s) to the Cash Management Portfolio until the end of

will be void. We reserve the right to allocate Your Purchase

Purchase Payment(s) paid. Upon such refund, the Certificate if You are not satisfied with it. The Company will refund the

Certificate was purchased within 10 days after You receive it,

Annuity Service Center or to the agent through whom the RIGHT TO EXAMINE – You may return this Certificate to Our

. . . .

investment experience of the Variable Portfolios You choose.

guaranteed, and will increase or decrease based upon the

during the accumulation and annuity periods is not The value of amounts allocated to the Separate Account

shown on the Certificate Data page. Contract. The coverage will begin as of the Certificate Date, This Certificate is evidence of coverage under the Group

Purchase Payments We receive. provisions set forth in this Certificate and in consideration of Participant under the Group Contract, in accordance with the “Company”, or “Anchor National”) agrees to provide benefits to the ANCHOR NATIONAL LIFE INSURANCE COMPANY (“We”, “Us”, the

CERTIFICATE,” provided, in pertinent part: certificate, entitled “ALLOCATED FIXED AND VARIABLE GROUP ANNUITY certificate evidencing coverage under the master group annuity contract. The When they purchased the Polaris II, the petitioners were each issued a

Community First National Bank, Trustee. are covered under the master group annuity contract issued by Anchor to across the country who purchased the Polaris II. The members of this group of law. Stewart v. Bader p. 3 issue of material fact, and the moving party is entitled to judgment as a matter favorable to the non-movant, our review of that evidence discloses no genuine the evidence and all inferences properly drawn therefrom in the light most We will affirm a trial court’s grant of summary judgment if, considering

department’s favor, and this appeal followed. Both parties moved for summary judgment. The trial court ruled in the when it approved the Polaris II for issuance and delivery in New Hampshire. other things, a declaration that the department violated RSA 408:52 (2006) with the answers they received from the department. They sought, among brought the declaratory judgment proceeding because they were not satisfied annuities, they asked the department about its approval of the Polaris II. They annuities. They alleged that when they realized that they had purchased group provided, they thought that they were purchasing individual, not group, alleging that based upon their agent’s representations and the forms he In August 2006, the petitioners filed a petition for declaratory judgment,

interpreted RSA 408:52. We review the trial court’s statutory interpretation de The sole issue for our review is whether the trial court erroneously

a result, they invested in a group annuity, not an individual annuity. when they invested in the Polaris II and its underlying stock portfolios and, as The parent company explained that the petitioners became members of a group cancel their contracts and obtain their premium payments had already lapsed. application of the law to the facts de novo. Id. certificates, and that, pursuant to their certificates, the ten-day period to, 154 N.H. 75, 87 (2006). We review the trial court’s they had, in fact, been issued group annuity contracts, as stated in their purchased. In response, the parent company informed the petitioners that alleging that their insurance agent had misrepresented the type of annuity they requesting return of their premium investment with three percent interest, In November 2005, the petitioners wrote to Anchor’s parent company

investors in the Trust constituted a group. actually invested in the stock portfolios of the Anchor Series Trust and that the further informed the petitioners that when they invested in the Polaris II, they became members of a group when they purchased the Polaris II. The letter sold to an individual who is not a member of the group and that the petitioners product. The letter informed the petitioners that a group certificate cannot be had purchased a group annuity product, rather than an individual annuity and delivery in New Hampshire. The letter also explained that the petitioners letter served as the department’s approval of the Polaris II contract for issuance letter indicated that the approval stamp affixed by the department on Anchor’s department’s approval to sell the Polaris II in New Hampshire. The deputy’s respondent’s deputy, enclosing a copy of Anchor’s 1999 letter seeking the comply with RSA 408:52, and was void as a matter of law. p. 4 master group annuity contract itself, the sale of the Polaris II to them did not because the department approved only the certificate, and did not approve the contract given to individual participants” under that contract. They assert that used in RSA 408:52 refers to “the actual master group contract or the form of sold in New Hampshire. They contend that the phrase “form of contract” as approve the master group annuity contract before allowing the Polaris II to be The petitioners argue that RSA 408:52 required the department to

“variable contract” within the meaning of RSA 408:27. RSA 408:27 (2006). The petitioners do not dispute that the Polaris II is a

placed.

received in connection with such policies or contracts have been

accounts maintained by the insurance company in which amounts

according to the investment experience of any separate account or

benefits or other contractual payments thereunder may vary

insurance company which provides that the dollar amount of any life insurance policy or annuity contract issued by an

A variable contract is:

contract in the said form.

information approve or disapprove the sale of such variable

require. The commissioner shall after examination of such

descriptive statistical, or documentary information as he may

variable contract form shall submit to the commissioner such

commissioner. Such a corporation desiring to qualify such

unless the sale of such form of contract has been approved by the 4 agents shall sell or offer for sale any form of variable contract No registered insurance corporation or its salesmen or

RSA 408:52 provides, in pertinent part:

context of the overall statutory scheme and not in isolation. Id. to incorporate into the statute. Id. Finally, we interpret a statute in the legislature might have said or add language that the legislature did not see fit it for further indication of legislative intent, and we refuse to consider what the When a statute’s language is plain and unambiguous, we need not look beyond possible, we ascribe the plain and ordinary meanings to the words used. Id. as a whole. Id. We first examine the language of the statute, and, where arbiter of the legislature’s intent regarding the meaning of a statute considered novo. Bendetson v. Killarney, Inc., 154 N.H. 637, 641 (2006). We are the final p. 5 Affirmed

violate RSA 408:52. the trial court’s ruling that the sale of the Polaris II to the petitioners did not Polaris II as a “form of variable contract.” RSA 408:52. Therefore, we affirm Polaris II for sale in New Hampshire, the department approved the sale of the Hampshire. This approval complied with RSA 408:52. By approving the department approved Anchor’s request to offer the Polaris II for sale in New Here, as the trial court found, and as the parties do not dispute, the DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

MODIFICATION, SPECIES, VARIETY”). existence, action or manifestation of a particular thing or substance : KIND, Webster’s, supra (definition 9(a) defines form as “one of the different modes of blank spaces for insertion of required or requested specific information”), with 2002) (definition 4(e)(1) defines form as a “printed or typed document with Compare Webster’s Third New International Dictionary 892 (unabridged ed. the type or kind of variable contract, rather than the actual paper form. (Emphasis added.) In context, therefore, the use of the word “form” refers to contract”; it requires him to approve “the sale of such form of contract.” omitted). RSA 408:52 does not require the respondent to approve the “form of entire statute.” Appeal of Kaplan, 153 N.H. 296, 299 (2006) (quotation “We do not read words or phrases in isolation, but rather in the context of the The petitioners err by reading the phrase “form of contract” in isolation.