Scales of justice (Credit: Thinkstock)

The Superior Court of Pennsylvania turned down an appeal from a couple who claimed their life insurance salesman misled them about how much their premium would increase as they got older.

Judge Deborah Kunselman wrote for a panel that included Judge Megan McCarthy King and Senior Judge James Colins. They ruled that Robert and Arlene Garwood had waived all five of the issues they raised in their appeal from a decision by the Court of Common Pleas of Allegheny County that favored Ameriprise Financial and RiverSource Life Insurance Co.

Resources

“Briefly, the Garwoods bought life insurance from the defendants, and, as the Garwoods aged, their monthly payments began to increase,” Kunselman said. “They eventually surrendered the policy because of cost and sued under various statutory and common-law theories. The Garwoods lost on all jury issues at trial.”

Also, the trial judge ruled against them on an Unfair Trade Practices and Consumer Protection Law claim, Kunselman said.

The first question on appeal was whether the trial court committed reversible error in finding the Garwoods failed to introduce sufficient evidence to support a finding that the defendants made misrepresentations in the sale of the Garwoods’ “lexible-premium adjustable whole life insurance policy.

“Regarding their first appellate issue, the Garwoods might argue that they preserved the question, because the word ‘sufficient’ appears in both their motion for post-trial relief and their statement of the first appellate issue,” Kunselman said. “If so, they would be wrong.”

The panel dispatched the other issues similarly.

“In their brief in support of their post-trial motions, they only argued a weight-of-the-evidence claim, not a sufficiency-of-the-evidence claim. The ‘credibility of witnesses is an issue to be determined by the trier of fact. On appeal, this court will not revisit the trial court’s determinations regarding the credibility of the parties,’” Kunselman said. “Likely aware of our inability to revisit credibility, the Garwoods engage in appellate gamesmanship. They swap their weight-of-the-evidence issue for a sufficiency-of-the-evidence claim.”

The Garwoods’ attorney, Kenneth R. Behrend of Behrend Law Group, said he did argue and brief those issues and he believes the court made a mistake in ruling that he waived them. “We will be filing for reconsideration,” Behrend said Thursday. “I’m hoping it’s just an oversight.”

The defense attorneys are Kathy Kay Condo and Joshua Shane Snyder of Babst, Calland, Clements and Zomnir. They declined to comment.

Kunselman concluded it was the trial court’s “gatekeeping function” to evaluate the credibility of the witnesses—and that such is not a matter for appellate judges. Said Kunselman, “Even had the Garwoods preserved this issue, it would warrant no relief.”

— Read Court Rules: No Payment, No life Insuranceon ThinkAdvisor.

— Connect with ThinkAdvisor Life/Health on FacebookLinkedIn and Twitter.