Pacific Life Insurance Company on Thursday asked a federal court to dismiss the $8.5 million lawsuit filed by NASCAR champion Kyle Busch and his wife over policies the Buschs claim were sold to them under false and negligent representations as tax-free income for retirement.
The filing in the Western District of North Carolina — the same court that just heard the Michael Jordan-led antitrust suit against NASCAR — alleges the Buschs purchased five separate Indexed Universal Life policies between 2018 and 2022 to provide more than $90 million in insurance protection for the two-time NASCAR champion.
The IUL policies were intended to provide immediate death benefit protection and “the opportunity to accumulate cash values when the policies are held for the long term.”
Pacific Life claims Busch failed to fully fund the policies, let some lapse and surrendered the others. Busch has claimed he is out $10.4 million and filed suit in October alleging Pacific Life failed to reveal the true risks of the policies.
Pacific Life countered in its request to have the suit dismissed that both Buschs signed multiple documents acknowledging they understood the policies, including one that indicated the couple would pay planned premiums and hold the policies over 30 years through age 70 and beyond.
“Instead of keeping the policies long enough to capitalize on their growth potential, Plaintiffs failed to timely pay planned premiums, failed to monitor allocation of their policy values between indexed and fixed accounts and surrendered the policies or allowed them to lapse,” Pacific Life wrote in the filing. “Rather than accept responsibility for their own decisions, Plaintiffs now attempt to blame their negative outcome on the IUL product.”
An IUL is a combination life insurance policy that provides a death benefit with a cash value component. The cash value growth is tied to a stock market index, supposedly with built-in protections against market downturns.
When he filed the suit last year, Busch said he was told that if he paid $1 million for five years, he would be able to take out $800,000 a year once he turned 52. Busch claims when he received a sixth premium notice he began asking questions and discovered almost all of his money was gone.
Pacific Life has countered that the Buschs acknowledged understanding the policies, but also that his claims for breach of fiduciary and negligent misrepresentation come seven years after he began purchasing the policies and are therefore outside the three-year statute of limitations.
“A plaintiff cannot avoid the statute of limitations by remaining ‘willfully blind’: A man should not be allowed to close his eyes to the facts readily observable by ordinary attention, and maintain for his own advantage the position of ignorance,” Pacific Life wrote. “Such a principle would enable a careless man, and by reason of his carelessness, to extend his right to recover for an indefinite length of time.”
Pacific Life also maintains that all of the Buschs claims on misrepresentation are false due to the “express, repeated disclosures” they signed. Additionally, all five policies come with a cover letter that in bold capitalized letters says “READ YOUR POLICY CAREFULLY” and offered a 20-day cancelation window in which premiums would be refunded.
Both Buschs signed a form that certified they had received the policies and understood they must carefully review them, Pacific Life said.
The Buschs also named agent Rodney A. Smith in their lawsuit for steering the Buschs into an unsustainable, high-risk product, along with charging an up-front 35% commission they were unaware of.
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