58 F.4th 774
4th Cir.2023Background:
- Plaintiff Malcolm Wiener (Connecticut citizen) sought reinstatement of a $16M life policy; AXA Equitable (New York citizen) reviewed medical records and AXA’s North Carolina office reported erroneous Medical Information Bureau (MIB) diagnosis codes.
- Wiener applied to other insurers; most declined and two made preliminary offers at substantially higher rates; Wiener sued in North Carolina state court for negligent misrepresentation/libel/negligence/UDTPA and AXA removed based on diversity jurisdiction.
- Throughout pretrial and trial AXA litigated under North Carolina law (pleadings, summary-judgment filings, jury instructions); a jury found AXA negligent and awarded $8M.
- After trial AXA first challenged subject-matter jurisdiction, arguing Connecticut law applied and Connecticut’s Insurance Information and Privacy Protection Act (CIIPPA) provided exclusive remedies and divested the court of jurisdiction; the district court sua sponte applied Connecticut law and dismissed for lack of jurisdiction.
- The Fourth Circuit reversed: (1) choice-of-law is waivable and AXA waived Connecticut law by litigating under North Carolina law; (2) even if Connecticut law applied, CIIPPA does not strip federal courts of jurisdiction (it governs remedies/choice of law, not forum); and (3) the jury verdict was supported by sufficient evidence of effective uninsurability.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether choice-of-law is jurisdictional or waivable | Choice-of-law is waivable; parties consented to North Carolina law so court should not impose Connecticut law | Choice-of-law can be asserted post-trial to defeat jurisdiction; technical distinction between waiver and forfeiture | Choice-of-law is waivable, not jurisdictional; AXA waived any CT-law claim by litigating under NC law |
| Whether AXA waived application of Connecticut law | AXA repeatedly invoked North Carolina law (answer, briefs, jury instructions), so it waived any alternate choice-of-law claim | AXA contended failure to object was mere forfeiture and argued later that CT law should apply | AXA affirmatively litigated under NC law and thus waived any argument for applying CT law |
| Whether Connecticut’s CIIPPA ousts federal subject-matter jurisdiction | CIIPPA does not strip courts of adjudicatory power; it provides remedies and thus is a choice-of-law issue subject to waiver | CIIPPA’s exclusive-remedies language deprives courts of jurisdiction over claims it covers | CIIPPA affects choice of law/remedies, not forum; it does not divest federal courts of jurisdiction and is subject to waiver |
| Sufficiency of evidence that Wiener became uninsurable | Evidence showed insurers declined or offered only revocable coverage at greatly increased rates; expert and agent testimony tied MIB codes to underwriting decisions | AXA argued multiple offers showed Wiener was not categorically uninsurable so causation/injury insufficient | Viewing evidence in plaintiff’s favor, a reasonable jury could find Wiener effectively uninsurable and that AXA’s erroneous MIB codes caused it; verdict stands |
Key Cases Cited
- Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380 (1986) (distinguishes choice-of-forum preemption that divests courts from ordinary preemption/choice-of-law issues)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (jurisdictional label requires clear congressional statement)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (courts should not label issues jurisdictional unless they govern adjudicatory capacity)
- Boechler, P.C. v. Comm’r, 142 S. Ct. 1493 (2022) (procedural requirements treated as jurisdictional only with clear statement)
- Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003) (ERISA preemption is a nonjurisdictional choice-of-law issue subject to waiver)
- Bilancia v. Gen. Motors Corp., 538 F.2d 621 (4th Cir. 1976) (Fourth Circuit precedent recognizing waiver of choice-of-law by failure to object)
- Evans v. B.F. Perkins Co., 166 F.3d 642 (4th Cir. 1999) (distinguishable: exclusive administrative remedy in workers’ comp context divested courts of a common-law action)
- Konkel v. Bob Evans Farms Inc., 165 F.3d 275 (4th Cir. 1999) (standards for viewing evidence in favor of verdict)