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September 10, 2025
Insurer Liable but Only for $1 Damages

Life Insurer Took Advantage of Plaintiff But Damages not Proved

Post 5187

Read the full article at https://www.linkedin.com/pulse/insurer-liable-only-1-damages-barry-zalma-esq-cfe-chbnc, see the full video at https://rumble.com/v6yoz9y-insurer-liable-but-only-for-1-damages.html and at https://youtu.be/OaX51GsfLcg, and at https://zalma.com/blog plus more than 5150 posts.

In Malcolm Wiener v. AXA Equitable Life Insurance Company, No. 24-1316, United States Court of Appeals, Fourth Circuit (September 3, 2025) the Fourth Circuit’s opinion addressed the sufficiency of evidence for a jury’s damages award in a negligence case involving AXA Equitable Life Insurance and Malcolm Wiener. AXA was found liable for negligence yet the court affirmed the trial court’s conclusion that the jury lacked sufficient evidence to reasonably calculate Wiener’s damages beyond minimal damages.

AXA liable for negligence but damages unsupported:

The court affirmed AXA’s negligence liability but ruled the jury’s $16 million damages award was unsupported due to insufficient evidence on Wiener’s expected remaining lifespan.

Damages require reasonable certainty under North Carolina law:

Under North Carolina law, damages must be proved with reasonable certainty, requiring specific and complete evidence to allow a jury to reasonably conclude the amount. Speculative damages are not permitted.

Two key data points needed for damages calculation:

To calculate damages for increased insurance premiums, the jury needed evidence of (1) additional annual premiums Wiener would pay, and (2) his expected remaining lifespan after 2014. Wiener provided evidence only for the first.

Insufficient evidence on Wiener’s expected lifespan:

The jury lacked adequate medical or actuarial evidence to determine Wiener’s remaining lifespan, with only general health remarks and a video call observation offered, which the court found speculative.

Nominal damages awarded due to lack of damage proof:

Since Wiener established causation and injury but failed to prove damages with reasonable certainty, the court held nominal damages of $1 were appropriate.

Jury’s use of death benefit as damages measure rejected:

Wiener’s argument that the $16 million death benefit of a hoped-for replacement policy could serve as damages was rejected as it confused the injury type; the injury was increased cost, not loss of policy termination.

Prior rulings and procedural posture:

The case had prior appeals affirming negligence liability but remanding for damages evaluation. The district court granted AXA’s Rule 50(b) motion to reduce damages, which the appellate court affirmed, declining to address a conditional new trial motion.

In the second time the case come before the Fourth Circuit on appeal. The first time, the parties disputed, among other things, whether there was sufficient evidence for a jury to find AXA liable for causing Malcolm Wiener’s inability to find a life insurance policy. The Fourth Circuit held that there was but remanded to have the district court determine whether the jury had sufficient evidence to calculate the amount of Wiener’s damages. The district court found the evidence lacking.

DISCUSSION

With AXA’s liability settled, the sole question on appeal is whether the jury had sufficient evidence to determine that Wiener suffered $16 million in damages.

The Jury Lacked Sufficient Evidence To Calculate Damages

Taking the evidence in the most favorable light to the party opposing the motion the Fourth Circuit asked whether a reasonable jury could have arrived at its conclusion. Under North Carolina law, proof of damages must be made with reasonable certainty. Although absolute certainty is not required, damages may not be awarded where the evidence permits no more than speculation.

The evidence fell short. The injury is that Wiener could not obtain insurance at a reasonable price because AXA’s erroneous MIB codes prevented carriers from issuing a policy at the standard rate. In other words, Wiener would have had to pay increased premiums over the rest of his life to receive the same permanent life insurance coverage through death.

AXA argued that we cannot assume that Wiener could have obtained a policy at the standard rate in the absence of erroneous MIB codes. Wiener’s expected remaining lifespan in 2014. North Carolina courts have rejected damages awards from juries that had more medical information than the jury did here. Wiener needed to put forth evidence directly establishing his expected remaining lifespan. Because he did not, the jury should not be permitted to speculate how long, in their opinion, they think Wiener’s life will continue in the future.

The jury was not given sufficient evidence to determine Wiener’s expected remaining lifespan. And without that data point, the jury could not calculate Wiener’s damages with reasonable certainty. That leaves Wiener to recover nominal damages of $1.

ZALMA OPINION

Although the District Court and the Fourth Circuit agreed that AXA took advantage of the plaintiff in how it calculated its premium, since they did not prove Wiener’s life expectancy the calculation of damages failed and he was only entitled, after two appeals, to $1 in damages. The lawyers, if on a contingency, earned $0.40 to $0.45 cents of the damages. This case establishes that even if an insurance company does wrong does not mean that the plaintiff will get rich with large compensatory damages and punitive damages.

(c) 2025 Barry Zalma & ClaimSchool, Inc.

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00:08:20
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March 11, 2026
Public Adjusters Attempt to Represent an Insured Subject to APA Clause

Anti-Public Adjuster Clause Is Effective in New York

Post number 5301

Read the full article at https://www.linkedin.com/pulse/public-adjusters-attempt-represent-insured-subject-zalma-esq-cfe-rubfc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

Insurers May Contractually Prevent an Insured from Hiring a Public Adjuster

In Peter Barbato & North Jersey Public Adjusters Inc. v. Interstate Fire & Casualty Company, et al, No. 25-cv-5312 (JGK), United States District Court, S.D. New York (December 15, 2025) the plaintiffs, Peter Barbato and North Jersey Public Adjusters, Inc. (“NJPA”), filed suit against several insurance companies, including Interstate Fire & Casualty Company, Independent Specialty Insurance Company, and certain Underwriters at Lloyd’s of London.

FACTS

NJPA is a New Jersey-based public adjusting firm licensed in New York. The dispute centers on ...

00:08:05
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March 11, 2026
Public Adjusters Attempt to Represent an Insured Subject to APA Clause

Anti-Public Adjuster Clause Is Effective in New York

Post number 5301

Read the full article at https://www.linkedin.com/pulse/public-adjusters-attempt-represent-insured-subject-zalma-esq-cfe-rubfc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

Insurers May Contractually Prevent an Insured from Hiring a Public Adjuster

In Peter Barbato & North Jersey Public Adjusters Inc. v. Interstate Fire & Casualty Company, et al, No. 25-cv-5312 (JGK), United States District Court, S.D. New York (December 15, 2025) the plaintiffs, Peter Barbato and North Jersey Public Adjusters, Inc. (“NJPA”), filed suit against several insurance companies, including Interstate Fire & Casualty Company, Independent Specialty Insurance Company, and certain Underwriters at Lloyd’s of London.

FACTS

NJPA is a New Jersey-based public adjusting firm licensed in New York. The dispute centers on ...

00:08:05
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March 10, 2026
Acting as Your Own Lawyer is Foolish

Proof of Highly Contaminated Water is Required for Extra Payments

Post number 5300

Read the full article at https://www.linkedin.com/pulse/acting-your-own-lawyer-foolish-barry-zalma-esq-cfe-mbg0c, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

Acting as Your Own Lawyer is Foolish

Evidence of Breach of Contract Survives Dismissal of All Other Charges

In Lee Lifeng Hsu and Jane Yuchen Hsu v. State Farm Fire And Casualty Company, C. A. No. N24C-09-020 CLS, Superior Court of Delaware (February 27, 2026) a claim to State Farm who paid approximately $61,000 after assessments but denied coverage for additional items including ceramic tiles, the kitchen floor ceiling, underlayment plywood, and numerous personal property items resulted in suit by the Hsu’s acting in pro per.
Facts

Lee Lifeng Hsu and Jane Yuchen Hsu (“Plaintiffs”) purchased a homeowners’ insurance policy from State Farm Fire...

00:07:28
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12 hours ago
Portable Storage Containers are not Buildings

Insurance Condition Requires Following the Intent of the Parties

Post number 5307

Principles of Contract Interpretation Compels Reading Contract as Written

Read the full article at https://www.linkedin.com/pulse/portable-storage-containers-buildings-barry-zalma-esq-cfe-fkg1c and at https://zalma.com/blog.

In Eastside Floor Supplies, Ltd. v. SCS Agency, Inc., Hanover Insurance Company, et al., No. 2024-01501, Index No. 609883/19, 2026 NY Slip Op 01488, Supreme Court of New York, Second Department (March 18, 2026)

In May 2019, a fire damaged business personal property belonging to the plaintiffs, which was stored in portable storage containers at their Manhattan premises. At the time of the fire, the plaintiffs were insured under a businessowners insurance policy (BOP) issued by the defendant Hanover Insurance Company which provided general coverage for business personal property, and which included a specific extension for “Business Personal Property Temporarily in Portable Storage Units” (the portable storage ...

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12 hours ago
Failure to Provide Well-Pled Facts Defeats Most of Action

ERISA Saves Fraudulent Claims Suit

Post number 5306

Read the full article at https://www.linkedin.com/pulse/failure-provide-well-pled-facts-defeats-most-action-zalma-esq-cfe-b4zuc and at https://zalma.com/blog plus more than 5300 posts.

Allegations of Fraudulent Insurance Billing Must be Pleaded with Specificity

In Genesis Laboratory Management LLC v. United Healthcare Services, Inc. and Oxford Health Plans, Inc., No. 21cv12057 (EP) (JSA), United States District Court, D. New Jersey (March 13, 2026) Genesis Laboratory Management LLC (“Genesis”), a New Jersey-based molecular diagnostic and anatomic pathology laboratory, provided COVID-19 related testing services and submitted claims for reimbursement as an out-of-network provider to United Healthcare Services, Inc. (“United”) and Oxford Health Insurance, Inc. (“Oxford”). Metropolitan Healthcare Billing, LLC (“Metropolitan”), owned by the same individual as Genesis, handled the billing for Genesis.

FACTUAL BACKGROUND

United and Oxford, who administer both ERISA and ...

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March 19, 2026
Failure to Provide Well-Pled Facts Defeats Most of Action

ERISA Saves Fraudulent Claims Suit

Post number 5306

Read the full article at https://www.linkedin.com/pulse/failure-provide-well-pled-facts-defeats-most-action-zalma-esq-cfe-b4zuc and at https://zalma.com/blog plus more than 5300 posts.

Allegations of Fraudulent Insurance Billing Must be Pleaded with Specificity

In Genesis Laboratory Management LLC v. United Healthcare Services, Inc. and Oxford Health Plans, Inc., No. 21cv12057 (EP) (JSA), United States District Court, D. New Jersey (March 13, 2026) Genesis Laboratory Management LLC (“Genesis”), a New Jersey-based molecular diagnostic and anatomic pathology laboratory, provided COVID-19 related testing services and submitted claims for reimbursement as an out-of-network provider to United Healthcare Services, Inc. (“United”) and Oxford Health Insurance, Inc. (“Oxford”). Metropolitan Healthcare Billing, LLC (“Metropolitan”), owned by the same individual as Genesis, handled the billing for Genesis.

FACTUAL BACKGROUND

United and Oxford, who administer both ERISA and ...

post photo preview
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