Virginia Lawyers Weekly VA Lawyers Weekly
Where an insurer sued for allegedly reporting false medical information about a man, causing him to become uninsurable, litigated the entire case under the substantive law of North Carolina, it waived any argument that Connecticut law applied to the dispute. The district court thus erred when it decided, after a jury found for the man, that Connecticut law barred the action.
Background
A jury found that AXA Equitable Life Insurance Company negligently reported false medical information about Malcolm Wiener to an information clearinghouse used by insurance companies, causing him to become uninsurable. Despite the fact that the parties satisfied the requirements for federal diversity jurisdiction, and the fact that both parties litigated the entire case through trial under North Carolina law, after the verdict the district court decided that Connecticut law applied and found itself deprived of subject-matter jurisdiction by virtue of a Connecticut statute.
Choice of law
AXA argues that the choice of Connecticut law made no difference in this case because North Carolina has a Consumer and Customer Information Privacy Act that, like the Connecticut statute, would preempt Wiener’s negligence claim. But the North Carolina statute applies only to “persons who are residents” of North Carolina. Because Wiener has never been a resident of North Carolina, the North Carolina statute would not preempt his negligence claim.
Analysis
All U.S. Courts of Appeals to have addressed the issue have held that choice of law issues may be waived. This court is no exception. A party abandons any claim that a different state’s law should govern the action if it fails to raise that issue before or during trial.
AXA litigated this entire case under the substantive law of North Carolina. AXA’s answer, motion for summary judgment, trial brief, proposed jury instructions and post-trial motion to dismiss all either assumed North Carolina law applied or explicitly cited North Carolina law as governing. AXA waived any contention that this action should have been governed by Connecticut law.
Because both parties consented to the choice of North Carolina law to govern this action and AXA waived any argument that another state’s law should be applied, the district court erred when it engaged in its own choice-of-law analysis and decided to apply Connecticut law. There were no “special circumstances,” that would “justif[y] our departure from the general rule” that courts should not consider waived issues.
Even assuming that it was proper for the district court to apply Connecticut law, the court was wrong to conclude that the Connecticut Insurance Information and Privacy Protection Act defeats federal jurisdiction. It is true that when a statute designates an exclusive non-judicial forum for a category of claim, it divests courts of jurisdiction over those claims. But when a statute provides for exclusive remedies without stripping courts of their adjudicatory powers, it “affects only the choice of law” and does not oust jurisdiction.
The Connecticut Insurance Information and Privacy Protection Act does not purport by its terms to strip the courts of their basic adjudicatory powers. Quite the contrary. The statute expressly contemplates that if an insurance company fails to comply with it, an aggrieved individual “may bring an action for equitable relief” or damages in court, and “the court may award costs and reasonable attorney’s fees to the prevailing party.”
Thus, courts have the power to adjudicate claims covered by CIIPPA — they have jurisdiction — even if certain causes of action are preempted by that statute. CIIPPA does not affect the court’s “actual adjudicatory or regulatory power as opposed to the State’s substantive laws” and is therefore not jurisdictional.
Because CIIPPA governs choice of law rather than choice of forum and does not divest courts of jurisdiction, any argument that CIIPPA barred Wiener’s claim was “subject to the ordinary rules of … timely presentment and waiver.” As explained above, AXA waived any argument that CIIPPA preempted Wiener’s claim by failing to raise it at any point before or during trial. So, even assuming that the district court was entitled to apply Connecticut law, it erred when it dismissed Wiener’s negligence claim as preempted by CIIPPA.
Merits
Wiener’s negligence claim was that AXA’s negligent reporting of false medical information about him caused him to become uninsurable. Ample evidence supported the jury’s verdict for Wiener.
Reversed and remanded.
Wiener v. AXA Equitable Life Insurance Company, Case No. 21-2165, Jan. 20, 2023. 4th Cir. (Wilkinson), from WDNC at Charlotte (Conrad). Ross Fulton for Appellant. Matthew Woodruff Sawchak for Appellee. VLW 023-2-022. 18 pp.
