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Failure to Provide a Proper Standard for Damages Reduced Judgement
Post 4758
In Malcolm Wiener v. AXA Equitable Life Insurance Company, No. 3:18-cv-00106-RJC-DSC, United States District Court, W.D. North Carolina, Charlotte Division (March 8, 2024) Wiener obtained a $16 Million jury award that the Fourth Circuit required the USDC to address AXA's argument for post-trial relief challenging the amount of damages AXA argued that the jury rested its $16 million award on an improper standard, and thus, that the award lacks a basis in substantial evidence.
BACKGROUND
In 1986 and 1987, Malcolm Wiener purchased three life insurance policies from AXA Equitable Life Insurance Company with a total face value of $16 million. In December 2013, each of the three policies lapsed for nonpayment of premiums. Wiener sought reinstatement, but AXA denied his application.
The current case relates only to AXA's negligence in coding Wiener's medical history. In January 2018, Wiener filed the present action alleging, among other things, that AXA was negligent in “failing to adequately read, understand and verify and accurately report Plaintiff's medical history, conditions and events to third parties." According to evidence introduced at trial, Wiener sought new insurance coverage from at least eight carriers but two denied him coverage altogether and those that offered insurance made only preliminary, revocable offers for $10 million policies at double the standard rate. Wiener's history of atrial fibrillation and monoclonal gammopathy was the basis for the refusals.
The Fourth Circuit addressed the causation issue, holding that “[a]mple evidence supported the jury's verdict for Wiener.” “But because AXA's argument for post-trial relief challenging the amount of damages . . . was neither raised nor briefed before [the Fourth Circuit],” the panel remanded that narrow issue back to the USDC.
DISCUSSION
AXA contended the jury based its award on an improper standard (the $16 million death benefit from his lapsed policies); and second, that, even if the $16 million death benefit was an appropriate measure, Wiener failed to provide necessary evidence of future premiums to offset that $16 million award.
Under North Carolina law, the party seeking damages must show that the amount of damages is based upon a standard that will allow the finder of fact to calculate the amount of damages with reasonable certainty.
Here, the jury awarded Wiener actual damages of $16 million before deducting $8 million for his own failure to mitigate. The jury's award, AXA argued, relied upon an improper standard because this action sought compensatory damages for AXA's negligence in coding Wiener's medical history, not reinstatement of Wiener's previous policies.
The Court found that Wiener's lapsed $16 million death benefit is an improper baseline of damages. Because Wiener offered no baseline to support the jury's $16 million award, the award lacks a sufficient evidentiary basis.
Throughout this case, Wiener has offered no expert testimony or other evidence of the damage caused by his effective uninsurability. And the record makes clear that, even absent the erroneous MIB codes, Wiener was effectively uninsurable or uninsurable at a reasonable cost. The Court found that “no substantial evidence” supports the jury's $16 million actual damages award.
Even extending Wiener “the benefit of all reasonable inferences” and resolving all disputed facts in his favor, the Court found that no jury, viewing the evidence in the light most favorable to the winning party, could have properly reached the conclusion reached by this jury on compensatory damages. The Court found that the damages award was against the clear weight of the evidence and conditionally granted a new trial in the event that the Order is vacated or reversed.
AXA Equitable Life Insurance Company's Renewed Motion for Judgment as a Matter of Law, was granted. The jury verdict was set aside, and Plaintiff Malcolm Wiener is instead entitled to an award of nominal damages in the amount of one dollar ($1).
ZALMA OPINION
Nothing is certain in the law. The $16 million verdict was overturned because, although the jury felt bad for Mr. Weiner, the reason his insurance policies lapsed was that he did not pay the premium and when he tried to reinstate them his health conditions had changed and he was uninsurable. The jury rewarded him with the cash value of the policies that would have been available if he had paid the premium which had no relationship to the actual alleged tortious conduct. The big verdict became nothing more than a piece of paper that counsel could frame and hang on a wall but will not result in cash to the plaintiff.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://lnkd.in/gcZKhG6g
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gV9QJYH; Go to the Insurance Claims Library – https://lnkd.in/gwEYk
When Harm is Inherent in the Nature of the Act it is Intentional
Post 5237
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No Coverage for Intentional Acts
Hitting a Person in the Face is an Intentional Act
In Unitrin Auto and Home Insurance Company v. Brian C. Sullivan, et al., George A. Ciminello, No. 2022-01607, Index No. 21632/14, Supreme Court of New York, Second Department (November 19, 2025) George A. Ciminello was injured when struck in the face by a cup filled with liquid, thrown from a moving vehicle operated by Brian C. Sullivan, with Robert Harford as the passenger who threw the cup. The vehicle approached Ciminello at about 30 mph, from 2 to 10 feet away, and Harford extended his arm to make contact. The cup splintered upon impact.
Sullivan and Harford later conceded liability on the intentional tort claim before a damages trial.
Insurance Policy:
Unitrin Auto and Home...
Obtaining Title to Church by Fraud Defeated
Post 5238
Read the full article at https://www.linkedin.com/pulse/unmitigated-gall-abuse-elderly-bishop-his-church-zalma-esq-cfe-xcasc, see the video at and at and at https://zalma.com/blog plus more than 5200 posts.
It is Villainous to Steal Church Property from Sick and Elderly Bishop
In Testimonial Cathedral Local Church of God in Christ v. EquityKey Real Estate Option, LLC et al. (Cal. Ct. App., 2d Dist., Div. 8, No. B331522 (Nov. 18, 2025) EquityKey (through broker Steven Sharpe and Frank Wheaton, a trusted advisor/friend of elderly Bishop Jimmy Hackworth) presented a deal supposedly for a $4 million life-insurance policy on Hackworth’s life with EquityKey as beneficiary. In exchange, EquityKey paid Hackworth $400,000 upfront.
Factual Background
To qualify Hackworth for the large policy, church real property on South Western Ave., Los Angeles was temporarily ...
Guilty of Money Laundering Scheme
Post 5238
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Prison Sentence for Fraud Must be Limited to the Fraud in Which the Defendant Participated
In United States v. Stephen O. Anagor, No. 2:24-CR-00019-DCLC-CRW (E.D. Tenn., Nov. 26, 2025) by Judge Clifton L. Corker the government sought to increase the defendant’s sentence because his co-conspirators added a fraudulent FBI scam that resulted in the victim’s suicide. Anagor sought a lower sentence because he was only involved in part of the fraud.
Charges & Plea
Defendant, a U.S. Army soldier pled guilty on June 11, 2025 to Conspiracy to Commit Mail and Wire Fraud, Aiding and Abetting Aggravated Stalking Resulting in Death and Aiding and Abetting Aggravated Identity Theft that was part of a larger 38-count superseding indictment against Anagor and co-defendants Chinagorom Onwumere and Salma Abdalkareem for an international Nigerian-based ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
