In re: Alan L. GOLDENBERG, Debtor.

                          Shirley Sawczak, Plaintiff-Appellee, Cross-Appellant,

                                                     v.

                       Alan L. Goldenberg, Defendant-Appellant, Cross-Appellee.

                                               No. 99-10411.

                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                               July 17, 2000.

Appeals from the United States District Court for the Southern District of Florida. 9no. 97-06203-CV-WDF),
Wilkie D. Ferguson, Jr., Judge.

Before ANDERSON, Chief Judge, and CARNES and RONEY, Circuit Judges.

        ANDERSON, Chief Judge:

        In April of 1992, Dr. Alan Goldenberg performed gall bladder surgery on Shirley Sawczak. Sawczak

subsequently filed suit against Goldenberg in Broward County, Florida, alleging that during the course of the

surgery, Goldenberg completely transected her common bile duct, causing her life-long injuries. Goldenberg

was not carrying malpractice insurance. Goldenberg filed a petition under Chapter 7 of the Bankruptcy Code

on May 1, 1996, the same day the jury was to start deliberations in the medical malpractice suit. Later that

day, Sawczak filed an emergency motion for relief from the bankruptcy automatic stay so that the malpractice

trial could be completed. The bankruptcy court granted her motion, and the jury returned a verdict in favor

of Sawczak and against Goldenberg in the amount of $4,000,629.

        On May 31, 1996, Goldenberg filed bankruptcy schedules listing assets totaling $3,791,119, of which

he claimed $3,751,678 as exempt. The assets Goldenberg claimed as exempt included seven annuity

contracts, with an aggregate value, according to Goldenberg's bankruptcy schedules, of $355,894. The

annuities are single premium deferred annuities; to obtain them, Goldenberg paid a single premium which

accumulates interest until the maturity date. All of the annuities provide for a commencement or maturity

date at which time certain sums become payable to the annuitant or his survivors under various settlement
options. In addition, they all contain a provision for "surrender" of the contract in exchange for a specified

lump sum payment, defined as either the "surrender value" or "net surrender value." The surrender provisions

can apparently be invoked up until the corresponding maturity dates. According to Sawczak, no maturity date

for any of the seven contracts has yet arrived.1 Goldenberg is both the owner and annuitant of each annuity

policy. Goldenberg also claimed as exempt $2,546,319 in individual retirement accounts ("IRAs").

            Sawczak filed objections to Goldenberg's claimed exemptions, including objections to his claims of

exemption of the annuity contracts and of the IRAs.

I.          The Annuity Contracts

            Sawczak objected to Goldenberg's claim of exempt status with respect to the annuities, "to the extent

of the surrender value of each." She argued to the bankruptcy court that the cash surrender values of the

annuity contracts were not exempt under Fla. Stat. Ann. § 222.14 (West 1998).2 Applying Florida law,3 the

United States Bankruptcy Court for the Southern District of Florida concluded that:

            Neither the title of [§ 222.14] nor its text distinguishes the proceeds received from a surrender of the
            annuity contract from the proceeds received after the contract is annuitized.... [T]he Court does not
            accept Sawczak's suggestion that the legislature intended to treat the surrender value of an annuity
            contract differently than that of a life insurance policy.

Accordingly, the bankruptcy court overruled Sawczak's objection and upheld Goldenberg's exemption.


     1
         Sawczak claims that the earliest maturity date for these annuities falls in the year 2009.

     2
         Section 222.14 reads:

            Exemption of cash surrender value of life insurance policies and annuity contracts from legal process

                     The cash surrender values of life insurance policies issued upon the lives of citizens or
            residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state,
            upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in
            favor of any creditor of the person whose life is so insured or of any creditor of the person who is the
            beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for
            the benefit of such creditor.
     3
    Under section 522(b) of the Bankruptcy Code, 11 U.S.C. § 522(b), a state can choose to "opt out" of the
exemptions provided by federal law and provide its own allowable exemptions. Florida has chosen this
option. See Fla.Stat.Ann. § 222.20 (West 1998).

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        Sawczak appealed the bankruptcy court's order to the United States District Court for the Southern

District of Florida. The district court concluded that:

        Dr. Goldenberg did not have annuity contracts until the funds in the annuity account reached
        maturity. He had, instead, option contracts to buy annuities at a future date which options could be
        revoked by him at anytime prior to the maturity dates.... When the judgment was entered the funds
        on deposit were not protected "proceeds of annuity contracts" as described by statute.

Thus, the district court concluded that there was no exemption as to the $355,894 held in the "annuity

contracts" and that that money was reachable by process to partially satisfy Sawczak's judgment.

        Dr. Goldenberg appeals to this Court arguing that the contracts at issue are in fact annuity contracts

exempt under § 222.14 and that the cash surrender values of the annuities are included in the § 222.14

exemption. Sawczak, in turn, makes two alternative arguments to this Court: 1) that Goldenberg did not have

"annuity contracts" when he filed for bankruptcy, but only options to buy annuities at future dates which are

not exempt under § 222.14, and 2) that § 222.14 exempts only the proceeds of annuity contracts, which does

not include cash surrender value. The parties have not cited nor have we uncovered any controlling Florida

case directly addressing this important issue of Florida law. Consequently, we seek the assistance of the

Supreme Court of Florida in resolving this issue.

        Having concluded that this case involves an unanswered question of state law that is determinative

of this appeal and having found no clear, controlling precedent in the decisions of the Supreme Court of

Florida, we certify the following question of law to the Supreme Court of Florida for instructions:

        ARE THE CASH SURRENDER VALUES OF DR. GOLDENBERG'S "ANNUITY CONTRACTS"
        EXEMPT FROM LEGAL PROCESS UNDER FLA. STAT. ANN. § 222.14 (WEST 1998)?

        In certifying this question, we do not intend the particular phrasing of it to limit the court in its

consideration of the problem posed by the case. In order to assist the court's consideration of the case, the

entire record, along with the briefs of the parties, shall be transmitted to the court.4


   4
     Pending the response of the Florida Supreme Court, we do not address the parties' arguments concerning
whether or not Sawczak can reach the post-bankruptcy petition increase in value of the annuity contracts, if
in fact the contracts are not exempt from process under Florida law.

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II.     The IRAs

        Both the bankruptcy court and the district court upheld Goldenberg's claimed exemption of

$2,546,319 in IRAs, and Sawczak cross-appealed that issue to this Court. Sawczak concedes that the IRAs

were not acquired by Goldenberg with the proceeds of a fraud perpetrated upon her, that the IRAs do not

represent the transfer of non-exempt assets into exempt assets on the eve of bankruptcy, and that "on their

face" the IRAs fit the description of assets exempted by Fla. Stat. Ann. § 222.21 (West 1998). Nevertheless,

she argues that we should deny Goldenberg's exemption as to the IRAs as an "imposition upon creditors,"

under a line of Florida cases stating that the Florida homestead exemption " 'should not be so applied as to

make it an instrument of fraud or imposition upon creditors.' " Orange Brevard Plumbing & Heating Co. v.

La Croix, 

, 204 (Fla.1962) (quoting Milton v. Milton, 

, 

, 719 (1912));

see also Palm Beach Savings & Loan Ass'n v. Fishbein, 

, 269 (Fla.1993). We reject this

argument as meritless. Accordingly, we affirm the decision of the district court as to this issue.

        AFFIRMED IN PART AND QUESTION CERTIFIED.




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