Audrey Kenney v. Independent Order of Foresters
744 F.3d 901
4th Cir.2014Background
- Audrey Kenney’s husband died in 2011, making her the sole beneficiary of IOF life insurance.
- Policy issued in 1984; Kenneys resided in West Virginia since 2003, though policy issued in Virginia.
- Policy contains a choice-of-law provision: rights under the certificate are governed by the law of the state where delivered.
- Kenney claimed IOF owed $130,000; IOF initially offered $80,000 and later paid $130,000 after administrative action.
- In December 2011 Kenney filed WVUTPA complaint alleging unfair settlement practices in handling the claim.
- District court dismissed, holding lack of WVUTPA claim under Virginia law; Kenney appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WVUTPA claim sounds in tort or contract | Kenney argues WVUTPA sounds in tort. | IOF contends WVUTPA is contractual. | WVUTPA claim sounds in tort. |
| Which state's law governs the WVUTPA claim | West Virginia law applies under conflict rules. | Virginia law governs under policy choice-of-law. | West Virginia law applies. |
| Whether the Restatement approach yields Virginia or West Virginia law | Restatement §145 factors favor WV law. | Restatement factors point to Virginia law. | West Virginia law applies under Restatement approach. |
| Whether the complaint states a WVUTPA claim under West Virginia law | Complaint asserts unfair settlement practices by IOF in handling claim. | Argument focused on Virginia law; WVUTPA merits accepted claims. | Complaint states a WVUTPA claim under West Virginia law. |
Key Cases Cited
- Wilt v. State Auto. Mut. Ins. Co., 506 S.E.2d 608 (W. Va. 1998) (WVUTPA damages and tort nature of claims)
- Taylor v. Nationwide Mut. Ins. Co., 589 S.E.2d 55 (W. Va. 2003) (WVUTPA actions sound in tort)
- Poling v. Motorists Mut. Ins. Co., 450 S.E.2d 635 (W. Va. 1994) (WVUTPA claim characterization)
- Hall v. Nichols, 400 S.E.2d 901 (W. Va. 1990) (breach of law-imposed duties; tort vs contract analysis)
- Yost v. Travelers Ins. Co., 181 F.3d 95 (4th Cir. 1999) ( WVUTPA and choice-of-law considerations (unpublished table) )
- Oakes v. Oxygen Therapy Servs., 363 S.E.2d 130 (W. Va. 1987) (Restatement §6 factors in choice of law)
- Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983) (Restatement §6 factors and choice of law)