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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 2 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
`
`2021 WL 1226925
`Only the Westlaw citation is currently available.
`United States District Court, S.D. New York.
`
`Malcolm H. WIENER, Plaintiff,
`v.
`AXA EQUITABLE LIFE INS. CO., David
`Hungerford, AXA Advisors, L.L.C.,
`and AXA Network, L.L.C., Defendants.
`
`16 Civ. 4019 (ER)
`|
`Signed 03/31/2021
`
`Attorneys and Law Firms
`
`Kristen Alexandra M. O'Neill, Theresa A. Guertin, Tracy
`Alan Saxe, Saxe Doernberger & Vita, P.C., Trumbull, CT,
`Lawrence Francis Reilly, Pro Hac Vice, The Reilly Law Firm,
`LLC, Ridgefield, CT, Carolyn Talbot Seely, Greenwich, CT,
`for Plaintiff.
`
`Robert W. Cassot, Robert William Cassot, Morrison Mahoney
`LLP, Hartford, CT, Demetra Sophocleous, Morrison
`Mahoney LLP, New York, NY, Brian Joseph Palmeri,
`Daniel Patrick Quinlan, Jody N. Cappello, Sara Ray,
`Winget Spadafora & Schwartzberg LLP, Stamford, CT, for
`Defendants.
`
`OPINION AND ORDER
`
`Ramos, D.J.:
`
`*1 Malcolm H. Wiener initiated this action on May 26,
`2015. Doc. 1. In his operative complaint, Wiener asserts
`thirteen claims collectively against Defendants regarding the
`termination of three of his life insurance policies. Doc.
`79. Pending before the Court are: a motion for summary
`judgment by AXA Equitable Life Insurance Co. (“AXA
`Equitable”), AXA Advisors, L.L.C. (“AXA Advisors”),
`and AXA Network, L.L.C. (“AXA Network”) (collectively,
`“AXA Defendants”); a motion for summary judgment by
`David Hungerford; and a cross-motion for partial summary
`judgment by Wiener regarding his claim for breach of contract
`against AXA Equitable for its alleged failure to send premium
`reminder notices in November 2013. Docs. 186, 194, and 202.
`
`For the reasons set forth below, AXA Defendants’ and
`Hungerford's motions are GRANTED, and Wiener's cross-
`motion is DENIED.
`
`I. BACKGROUND
`
`A. Factual Background
`Unless noted otherwise, the following facts are undisputed.
`Wiener was born in 1935 and is the retired founder of
`Millburn Corporation (“Millburn”), a financial services firm
`located in New York. Docs. 79 ¶¶ 11, 24 and 217 ¶ 9.
`Wiener currently resides in Connecticut. Doc. 79 ¶ 1. AXA
`Equitable is a life insurance company headquartered in New
`York. Id. ¶ 2. AXA Advisors and AXA Network are financial
`services and consulting companies located in New York, and
`are affiliated companies of AXA Equitable. Id. ¶¶ 4–5, 13–
`14. AXA Equitable assigns employees from AXA Advisors
`and AXA Network to serve as agents of record for its life
`insurance policies. Id. ¶ 15. Hungerford, a resident of New
`York, was a life insurance agent with AXA Equitable at all
`relevant times. See id. ¶ 3; see also Doc. 214 ¶¶ 8, 10.
`
`Wiener purchased the three universal life insurance policies at
`issue from AXA Equitable. Doc. 217 ¶ 14. Wiener purchased
`the first policy (# 36-224-259) on October 14, 1986 in the
`amount of $9,000,000; that amount was later reduced to
`$7,200,000. Id. ¶ 14(a). He purchased the other two policies
`on May 14, 1987: one for $9,000,000 that was later reduced to
`$7,200,000 (# 37-205-147), and the other for $2,000,000 that
`was later reduced to $1,600,000 (#37-205-155). Id. ¶ 14(b),
`(c). In 1990, AXA Equitable assigned Hungerford to serve
`as the agent of record on these policies, and he remained the
`agent of record at all relevant times. Doc. 214 ¶¶ 8, 10.
`
`The policies provided that AXA Equitable would send
`premium reminder notices for the planned payment period
`selected by the policyholder, unless the policyholder selected
`otherwise. See, e.g., Doc. 216-1 at 11. However, Wiener's
`policies did not require fixed premium payments. Doc. 217
`¶ 1. Rather, under the terms of those policies, Wiener could
`“skip planned premium payments or change their frequency
`and amount.” Id. Under the policies, after expense charges
`were deducted from the premium payments a policyholder
`made, those net premiums were then put into a policy account
`that earned interest each policy month. Id. At the beginning
`of each policy month, AXA Equitable made a deduction
`from the policy account for the monthly cost of insurance
`and benefits. Id. ¶ 2. For the policies to remain in effect,
`the amount in each policy's respective account, less certain
`
` © 2021 Thomson Reuters. No claim to original U.S. Government Works.
`
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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 3 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
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`interest and administrative charges, must be sufficient to
`cover the monthly deductions. Id. ¶ 4. If that amount (the
`“Net Cash Surrender Value”) was less than the deduction for a
`given month, the policy would lapse and enter a sixty-one-day
`grace period, and AXA Equitable would send a policy lapse
`notice to the policyholder. Id. ¶¶ 4–5, 16. If the delinquent
`amount was not paid by the end of the grace period, the policy
`would then terminate without value. Id. ¶ 8.
`
`*2 Wiener relied on Millburn to handle all aspects of
`his financial portfolio—including making the necessary
`payments to keep his life insurance policies in effect. Id. ¶ 10.
`Notably, from 1994 to October 2013, Millburn would not pay
`the monthly premiums until it received a policy lapse notice
`from AXA Equitable. See Docs. 214 ¶ 6 and 217 ¶ 16. As a
`result, during that time, the three policies lapsed a total of 209
`times. Doc. 217 ¶ 16. After Millburn received the policy lapse
`notices, Milburn paid only the minimum amount necessary to
`cover the monthly deductions for three months at a time, in
`accordance with the policy lapse notices sent to Wiener. See
`Docs. 214 ¶ 6 and 217 ¶ 16.
`
`Through March 2009, Wiener's premium reminder notices
`and policy lapse notices were mailed directly to Millburn. See
`Doc. 217 ¶¶ 17, 21; see also Doc. 231 ¶¶ 29–30. However, by
`June 2009, Wiener's address of record for these policies was
`changed, such that all premium reminder notices and policy
`lapse notices were sent to his Connecticut address instead.1
`See Doc. 217 ¶ 21; see also Doc. 231 ¶¶ 29–30. A copy of the
`address change confirmation was mailed to both Millburn's
`address and Wiener's Connecticut address. Doc. 231 ¶ 29.
`
`Since 2009, Wiener had a system in place at his residence
`to process any mail that he received—including mail that
`he received from AXA Equitable. See Doc. 217 ¶¶ 17–19,
`21. Two of Wiener's household staff retrieved mail from the
`mailbox on a daily basis, and the mail then would be sorted
`either in the office of one of the staff or on the kitchen table.
`Id. ¶¶ 17–18. Wiener's executive assistant was responsible for
`sending mail from AXA Equitable to Millburn for processing.
`Id. ¶¶ 13, 19. Wiener's household staff did not maintain logs
`of the mail received or processed, nor did they retain copies
`of mail sent from Wiener's address to Millburn. Id. ¶ 23.
`From there, Millburn employees would review any policy
`lapse notices, and draft and mail checks in connection with
`premium payments. See id. ¶¶ 11, 20.
`
`On October 1, 2013, the Net Cash Surrender Value for each
`of Wiener's policies was less than the monthly deductions,
`
`meaning that the policies lapsed and entered a sixty-one-
`day grace period. See id. ¶ 25; see also Doc. 214 ¶ 15.
`During the grace period, AXA Equitable did not send Wiener
`any premium reminder notices. Although the parties dispute
`whether AXA Equitable mailed and Wiener received policy
`lapse notices, it is undisputed that Millburn failed to pay the
`minimum premiums owed on the policies during the sixty-
`one-day grace period that followed; as a result, the policies
`were terminated on December 1, 2013. Docs. 214 ¶¶ 16–17
`and 217 ¶¶ 32–33. On December 2, 2013, Wiener received
`a termination notice at his Connecticut address for each of
`the policies, along with an application for reinstatement of
`his policies. Docs. 214 ¶ 17 and 217 ¶¶ 32–33. Hungerford
`was copied on the termination notices, as he had been with
`all premium reminder notices and policy lapse notices. Docs.
`214 ¶ 18 and 231 ¶ 26.
`
`The applications for reinstatement explicitly stated “[p]lease
`do not submit a payment with this form.” Doc. 214 ¶ 21.
`Under the terms of the policies, Wiener could apply for
`one of two types of reinstatement: a technical reinstatement
`and a regular reinstatement. A technical reinstatement
`occurs automatically if AXA Equitable made a technical or
`processing mistake that resulted in a lapsed policy, while a
`regular reinstatement requires evidence of insurability. Docs.
`216-1 at 11, 39, 216-2 at 25, and 216-14 at 99:19–101:16.
`On December 26, 2013, Wiener submitted a reinstatement
`application with medical evidence of insurability to AXA
`Equitable. Docs. 214 ¶ 22 and 217 ¶ 34. That application was
`forwarded to AXA Equitable's underwriter, Hallie Hawkins.
`Doc. 217 ¶ 34. As an underwriter, Hawkins's role was
`to review both medical and financial records to review a
`reinstatement application and determine whether the person
`was insurable under AXA Equitable's guidelines.2 Id. ¶ 36.
`Additionally, in reviewing Wiener's application, Hawkins
`assessed his medical records against AXA Equitable's
`applicant medical checklist for seniors and the company's
`underwriting manual. Id. ¶ 37. Pursuant to this review
`process, Hawkins requested a physician statement from
`Wiener's physician, Dr. Barry Boyd. Id. ¶ 35. Although the
`parties have a number of disputes regarding Wiener's medical
`records, it is undisputed that those records showed that, at
`various times, Wiener's serum albumin levels were below 3.8.
`See Doc. 192-17; see also Doc. 192-10 at 71:9–11, 117:6–23,
`123:10–12.
`
`*3 On February 21, 2014, along with a follow-up letter
`on behalf of Wiener regarding his reinstatement application,
`Millburn sent a check to AXA Equitable for $96,093 in an
`
` © 2021 Thomson Reuters. No claim to original U.S. Government Works.
`
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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 4 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
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`effort to cover the missing amount for the lapsed policies,
`basing that figure on the amount it had paid to address the
`preceding lapse notice in July 2013. Docs. 214 ¶ 23 and
`216-16. AXA Equitable initially cashed the check; however,
`on March 5, 2014, it provided Wiener with copies of the
`October 2013 lapse notices and provided him with a check
`reimbursing him for the checks it had cashed. Doc. 214 ¶ 24.
`On March 24, 2014, AXA Equitable notified Wiener that it
`had denied his reinstatement application. Id. ¶ 25; see also
`Doc. 217 ¶ 45.
`
`B. Procedural History
`Wiener filed the instant suit in Connecticut state court on
`May 26, 2015. Doc. 1 at 1. On June 10, 2015, AXA
`Equitable removed the action to federal court in the District of
`Connecticut, asserting that the court had diversity jurisdiction
`pursuant to 28 U.S.C. § 1332. Id. at 1–2. On May 10, 2016, the
`parties filed a joint motion and stipulation to transfer venue
`to this District, and the Connecticut district court granted that
`request. See Docs. 58 and 58-1.
`
`In his operative complaint, filed August 12, 2016, Wiener
`asserts thirteen claims. Doc. 79. Against AXA Equitable,
`Wiener asserts the following claims: declaratory and
`injunctive relief; equitable reinstatement; breach of contract
`for failure to send the October 1, 2013 policy lapse
`notices; breach of contract for failure to send the premium
`reminder notices on November 1, 2013; waiver; violation
`of the Connecticut Unfair Trade Practices Act (“CUTPA”);
`fraudulent misrepresentation; and breach of the covenant of
`good faith and fair dealing. Id. Against AXA Advisors and
`AXA Network, Wiener asserts the following: negligence,
`breach of fiduciary duty, and violation of CUTPA. Id. Against
`Hungerford, Wiener asserts the following: negligence and
`breach of fiduciary duty. Id.
`
`On April 17, 2020, the parties filed the instant motions. The
`AXA Defendants moved for summary judgment regarding all
`of Wiener's claims against them, Doc. 186, as did Hungerford
`for the claims against him, Doc. 202. Wiener cross-moved for
`partial summary judgment on his claim for breach of contract
`for failure to send premium reminder notices in November
`2013. Doc. 194.
`
`II. DISCUSSION
`
`A. Legal Standard
`
`Summary judgment is appropriate where “the movant shows
`that there is no genuine dispute as to any material fact.” Fed.
`R. Civ. P. 56(a). A fact is “material” if it might affect the
`outcome of the litigation under the governing law. H.Daya
`Int'l Co., Ltd. v. Arazi, 348 F. Supp. 3d 304, 308 (S.D.N.Y.
`2018). “An issue of fact is ‘genuine’ if the evidence is such
`that a reasonable jury could return a verdict for the non-
`moving party.” Senno v. Elmsford Union Free Sch. Dist.,
`812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint
`Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.
`2009)). The party moving for summary judgment is first
`responsible for demonstrating the absence of any genuine
`issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
`317, 323 (1986). If the moving party meets her burden,
`“the nonmoving party must come forward with admissible
`evidence sufficient to raise a genuine issue of fact for trial
`in order to avoid summary judgment.” Saenger v. Montefiore
`Med. Ctr., 706 F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (quoting
`Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.
`2008)).
`
`In deciding a motion for summary judgment, the Court must
`“construe the facts in the light most favorable to the non-
`moving party and must resolve all ambiguities and draw all
`reasonable inferences against the movant.” Brod v. Omya,
`Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v.
`R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
`However, in opposing a motion for summary judgment, the
`non-moving party may not rely on unsupported assertions,
`conjecture, or surmise. Goenaga v. March of Dimes Birth
`Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). “Only disputes
`over ‘facts that might affect the outcome of the suit under the
`governing law’ will preclude a grant of summary judgment.”
`Malmsteen v. Universal Music Grp., Inc., 940 F. Supp. 2d
`123, 130 (S.D.N.Y. 2013) (quoting Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 248 (1986)). As such, to defeat a motion
`for summary judgment, “the non-moving party must set forth
`significant, probative evidence on which a reasonable fact-
`finder could decide in its favor.” Senno, 812 F. Supp. 2d at
`467–68 (citing Anderson, 477 U.S. at 256–57).
`
`*4 “When confronted with cross-motions for summary
`judgment, the Court analyzes each motion separately, ‘in each
`case construing the evidence in the light most favorable to the
`non-moving party.’ ” Peterson v. Kolodin, No. 13 Civ. 793
`(JSR), 2013 WL 5226114, at *1 (S.D.N.Y. Sept. 10, 2013)
`(quoting Novella v. Westchester Cnty., 661 F.3d 128, 139
`(2d Cir. 2011)); see also Morales v. Quintel Ent., Inc., 249
`F.3d 115, 121 (2d Cir. 2001) (“[E]ach party's motion must be
`
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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 5 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
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`examined on its own merits, and in each case all reasonable
`inferences must be drawn against the party whose motion is
`under consideration.”). The Court is not required to resolve
`the case on summary judgment merely because all parties
`move for summary judgment. Morales, 249 F.3d at 121.
`
`B. Choice of Law
`At the outset, the Court must determine the source of law
`that governs the instant suit. Generally, “[w]here jurisdiction
`is predicated on diversity of citizenship, a federal court
`must apply the choice-of-law rules of the forum state.”
`Thea v. Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015).
`But where a case is transferred from one district to another
`pursuant to 28 U.S.C. § 1404(a), the transferee court must
`adopt the choice-of-law principles of the transferor court.
`Abbott Laboratories v. Feinberg, 477 F. Supp. 3d 57, 60
`(S.D.N.Y. 2020) (citing Van Dusen v. Barrack, 376 U.S. 612,
`639 (1964)). Accordingly, the Court “must pretend, for the
`purpose of determining the applicable state rules of decision,
`that it is sitting in” Connecticut. See Liberty Synergistics Inc.
`v. Microflo Ltd., 718 F.3d 138, 153 (2d Cir. 2013).
`
`Wiener brings claims that sound in contract, tort, and CUTPA.
`In Connecticut, the applicable “conflict of laws rule depends
`upon the nature of the plaintiff's claim.” Reclaimant Corp.
`v. Deutsch, 211 A.3d 976, 982 (Conn. 2019). Further, under
`Connecticut law, the Court must examine the conflicts of laws
`rule for each of Wiener's claims. See id. at 982–83; see also
`Macomber v. Travelers Prop. and Cas. Corp., 894 A.2d 240,
`256–57 (Conn. 2006); Bulldog N.Y. LLC v. Pepsico, Inc., 8 F.
`Supp. 3d 152, 161–62 (D. Conn. 2014).
`
`Still, regardless of the nature of the claim, the threshold choice
`of law issue in Connecticut is whether there is an outcome
`determinative conflict between applicable laws of the states
`with a potential interest in the case, i.e., whether there is
`an actual conflict of law. See W. Dermatology Consultants,
`P.C. v. VitalWorks, Inc., 153 A.3d 574, 586–87 (Conn. 2016);
`Cohen v. Roll-A-Cover, LLC, 27 A.3d 1, 16 (Conn. App. Ct.
`2011); Burns v. Quinnipiac Univ., 991 A.2d 666, 673 (Conn.
`App. Ct. 2010). If there is no such conflict, then “there is no
`need to perform a choice of law analysis, and the law common
`to the jurisdiction[s] should be applied.” See W. Dermatology,
`153 A.3d at 583 n.13 (quoting Cohen, 27 A.3d at 16); see
`also Burns, 991 A.2d at 673. Relatedly, under Connecticut
`law, a “false conflict” exists where the application of law of
`either jurisdiction produces the same result and, therefore,
`eliminates the need for a choice of law analysis. See Dugan v.
`Mobile Med. Testing Servs., Inc., 830 A.2d 752, 758 (Conn.
`
`2003). But where “there is no controlling appellate court
`precedent in Connecticut,” a court must address “the conflict
`of laws issue to determine which state's law to apply.” Id.
`
`Notably, in Connecticut, the party seeking a choice of law
`determination bears the burden of demonstrating that there
`is an actual conflict of law between two jurisdictions. See
`W. Dermatology, 153 A.3d at 583 n.13; see also Cohen,
`27 A.3d at 16 (concluding that choice of law analysis was
`inappropriate where party failed to indicate in brief how
`application of other jurisdictions conflicts with Connecticut
`law at issue); Burns, 991 A.2d at 673. “When the applicable
`law of a foreign state is not shown to be otherwise,” courts
`in Connecticut “presume it to be the same as” the law of
`Connecticut. Cohen, 27 A.3d at 16 (quoting Walzer v. Walzer,
`376 A.2d 414, 421 (Conn. 1977)); see also W. Dermatology,
`153 A.3d at 583 n.13.
`
`1. Choice of Law Analysis for Contract Claims
`*5 For analyzing choice of law issues involving contracts
`that do not contain a choice of law provision, Connecticut
`courts apply the “most significant relationship” test set forth
`in §§ 6 and 188 of the Restatement (Second) of Conflicts of
`Laws (“Restatement”). See Gen. Accident Ins. Co. v. Mortara,
`101 A.3d 942, 946 (Conn. 2014). Section 188, in turn, directs
`the Court to other provisions for specific types of contracts.
`Id. With respect to life insurance contracts, the starting point
`is § 192 of the Restatement. Cf. id.; Restatement § 192.
`
`Under § 192, the rights created under life insurance contracts
`are determined “by the local law of the state where the insured
`was domiciled at the time the policy was applied for, unless,
`with respect to the particular issue, some other state has a
`more significant relationship under the principles stated in § 6
`to the transaction and the parties, in which event the local law
`of the other state will be applied.” Restatement § 192. Thus,
`according to § 192, there is a presumption that Connecticut
`law governs because Wiener was domiciled there when he
`applied for his policies. See id. However, that presumption
`may be overcome where another state's interest outweighs
`Connecticut's and is sufficiently compelling to trump the
`presumption, as determined by evaluating the policy factors
`set forth in § 6. See Gen. Accident, 101 A.3d at 946–47; see
`also Am. States Ins. Co. v. Allstate Ins. Co., 922 A.2d 1043,
`1050–51 (Conn. 2007).3 Those factors are:
`
`(a) the needs of the interstate and international
`systems, (b) the relevant policies of the forum, (c)
`the relevant policies of other interested states and the
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`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
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`relative interests of those states in the determination
`of the particular issue, (d) the protection of justified
`expectations, (e) the basic policies underlying the
`particular field of law, (f) certainty, predictability and
`uniformity of result, and (g) ease in the determination
`and application of the law to be applied.
`Restatement § 6(2); see also Gen. Accident, 101 A.3d at 947;
`Am. States, 922 A.2d at 1051. To refine their review of these
`policy-based factors in the context of contract-based claims,
`Connecticut courts first turn to § 188(2), which notes that
`
`occurred, (c) the domicil, residence, nationality, place of
`incorporation and place of business of the parties, and
`(d) the place where the relationship, if any, between the
`parties is centered.
`Restatement § 145(2); see also W. Dermatology, 153 A.3d at
`584. Notably, “it is the significance, and not the number, of
`§ 145(2) contacts that determines the outcome of the choice
`of law inquiry” under Connecticut law. W. Dermatology, 153
`A.3d at 585 (quoting Jaiguay v. Vasquez, 948 A.2d 955, 975
`(Conn. 2008)); see also Restatement § 145(2).
`
`the contacts to be taken into account in applying the
`principles of § 6 to determine the law applicable to
`an issue include: (a) the place of contracting, (b) the
`place of negotiation of the contract, (c) the place of
`performance, (d) the location of the subject matter of the
`contract, and (e) the domicil, residence, nationality, place
`of incorporation and place of business of the parties.
`Restatement § 188(2); see also Gen. Accident, 101 A.3d at
`947–48; Am. States, 922 A.2d at 1051. Section 188(3) also
`notes that, generally, “[i]f the place of negotiating the contract
`and the place of performance are in the same state, the local
`law of this state will usually be applied.” Restatement §
`188(3).
`
`2. Choice of Law Analysis for Tort and CUTPA Claims
`*6 “When evaluating choice of law questions sounding
`in tort,” Connecticut courts apply “the ‘most significant
`relationship’ test set forth in the [Restatement (Second)
`of Conflict of Laws].” W. Dermatology, 153 A.3d at 584.
`Further, “the choice of law principles applicable to tort actions
`also apply to claims brought under CUTPA.” Id. According
`to the relevant provision of the Restatement, § 145, “[t]he
`rights and liabilities of the parties with respect to an issue
`[in tort] are determined by the local law of the state which,
`with respect to that issue, has the most significant relationship
`to the occurrence and the parties under the principles stated
`in [§ 6 of the Restatement].” Id. (quotation omitted); see
`also Restatement § 145(1). To refine their review of the § 6
`factors noted above, Connecticut courts turn to § 145(2) of the
`Restatement, “which establishes black-letter rules of priority
`to facilitate the application of the principles of § 6 to tort
`cases.” W. Dermatology, 153 A.3d at 584 (quotation omitted).
`That section provides:
`
`Contacts to be taken into account in applying the
`principles of § 6 to determine the law applicable to an
`issue include: (a) the place where the injury occurred,
`(b) the place where the conduct causing the injury
`
`C. Breach of Contract – Failure to Send Premium
`Reminder Notices (Count IV)
`AXA Equitable and Wiener cross-move for summary
`judgment on Wiener's claim for breach of contract for failure
`to send premium reminder notices on November 1, 2013.
`
`As an initial matter, the Court must determine which
`state's law governs this contract claim. The parties disagree
`whether New York or Connecticut law applies. Wiener argues
`that, first, the Court need not conduct a choice of law
`analysis because there is no actual conflict between the
`laws of both jurisdictions and, second, if there is a conflict,
`Connecticut has the most significant relationship with the
`claim. Defendants disagree, asserting that New York has the
`most significant relationship with the claims.
`
`The Court agrees with Wiener that it need not engage in a
`choice of law analysis regarding this claim. In Connecticut,
`the elements of a breach of contract claim are (1) the
`formation of an agreement, (2) performance by one party,
`(3) breach of the agreement by the other party, and (4)
`damages. Meyers v. Livingston, Adler, Pulda, Meiklejohn &
`Kelly, P.C., 87 A.3d 534, 540 (Conn. 2014). Further, the
`damages asserted by a party must “fairly and reasonably
`be considered [as] arising naturally, i.e., according to the
`usual course of things, from [the] breach of contract itself.”
`Meadowbrook Ctr., Inc. v. Buchman, 90 A.3d 219, 227 (Conn.
`App. Ct. 2014) (quoting West Haven Sound Dev. Corp. v. West
`Haven, 514 A.2d 734, 742 (Conn. 1986)); see also Winakor v.
`Savalle, 234 A.3d 1122, 1135 (Conn. App. Ct. 2020) (noting
`that damages for breach of contract requires that injuries
`were foreseeable to a defendant and naturally and directly
`resulted from the defendant's conduct). Similarly, under New
`York law, the elements of a claim for breach of contract
`are (1) the existence of a contract, (2) the performance by
`one party, (3) breach by the other party, and (4) damages
`suffered as a result of the breach. See Beautiful Jewellers
`Priv. Ltd. v. Tiffany & Co., 438 F. App'x 20, 21–22 (2d Cir.
`
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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 7 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
`
`2011) (summary order); see also EMR (USA Holdings) Inc. v.
`Goldberg, No. 18 Civ. 7849 (ER), 2020 WL 4038358, at *7
`(S.D.N.Y. July 17, 2020). Accordingly, the Court concludes
`that there is no actual conflict regarding this claim. See In re
`U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 127 (2d
`Cir. 2013) (“[S]tate contract law defines breach [of contract]
`consistently such that the question will usually be the same in
`all jurisdictions.”); see also Hanks v. Voya Ret. Ins. & Annuity
`Co., No. 16 Civ. 6399 (PKC), --- F. Supp. 3d ----, 2020 WL
`6439185, at *4 (S.D.N.Y. Sept. 30, 2020) (noting that “the
`law of breach [of contract] is materially uniform across state
`jurisdictions, meaning that there are no actual conflicts of
`law.”).
`
`*7 Further, to the extent that the Court must interpret the
`terms of Wiener's insurance policies to evaluate his breach
`of contract claims, both Connecticut and New York law
`share the same principles for interpreting insurance policies.
`In Connecticut, “[a]n insurance policy is to be interpreted
`by the same general rules that govern the construction of
`any written contract.” Karas v. Liberty Ins. Corp., 228 A.3d
`1012, 1020 (Conn. 2019) (quotation omitted). “In accordance
`with those principles, [t]he determinative question is the
`intent of the parties, that is, what coverage the ... [insured]
`expected to receive and what the [insurer] was to provide,
`as disclosed by the provisions of the policy.” Lexington Ins.
`Co. v. Lexington Healthcare Grp., Inc., 84. A.3d 1167, 1173
`(Conn. 2014) (quotation omitted). “If the terms of the policy
`are clear and unambiguous, then the language, from which
`the intention of the parties is to be deduced, must be accorded
`its natural and ordinary meaning.” Karas, 228 A.3d at 1020
`(quotation omitted). When interpreting insurance policies,
`courts “must look at the contract as a whole, consider all
`relevant portions together and, if possible, give operative
`effect to every provision in order to reach a reasonable
`overall result.” Id. (quotation omitted). In doing so, however,
`courts “will not torture words to import ambiguity [when]
`the ordinary meaning leaves no room for ambiguity.” Id.
`(quotation omitted). To determine the “commonly approved
`usage of a word [in an insurance policy], it is appropriate
`to look to the dictionary definition of the term.” Lexington,
`84 A.3d at 1175 n.8 (quotation omitted). Critically, “any
`ambiguity in a contract must emanate from the language
`used in the contract rather than from one party's subjective
`perception of the terms.” Karas, 228 A.3d at 1020 (quotation
`omitted). A provision in an insurance policy is ambiguous
`only if “it is reasonably susceptible to more than one reading.”
`Id. (quotation omitted).
`
`Similarly, under New York law, “[a]n insurance agreement
`is subject to principles of contract interpretation.” Burlington
`Ins. Co. v. NYC Transit Auth., 79 N.E.3d 477, 481 (N.Y.
`2017) (quoting Universal Am. Corp. v. Nat'l Union Fire
`Ins. Co. of Pittsburgh, Pa., 37 N.E.3d 78, 80 (N.Y. 2015)).
`“Therefore, ‘[a]s with the construction of contracts generally,
`unambiguous provisions of an insurance contract must be
`given their plain and ordinary meaning, and the interpretation
`of such provisions is a question of law for the court.’ ” Id.
`(quoting Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 884
`N.E.2d 1044, 1047 (N.Y. 2008)). “Ambiguity in a contract
`arises when the contract, read as a whole, fails to disclose
`its purpose and the parties’ intent,” “or where its terms are
`subject to more than one reasonable interpretation.” Universal
`Am. Corp., 37 N.E.3d at 80 (quotation omitted). “However,
`parties cannot create ambiguity from whole cloth where none
`exists, because provisions ‘are not ambiguous merely because
`the parties interpret them differently.’ ” Id. (quoting Mount
`Vernon Fire Ins. Co. v. Creative Hous. Ltd., 668 N.E.2d 404,
`406 (N.Y. 1996)). Instead, “[i]nsurance contracts must be
`interpreted according to common speech and consistent with
`the reasonable expectations of the average insured.” Cragg
`v. Allstate Indem. Corp., 950 N.E.2d 500, 502 (N.Y. 2011).
`To determine the plain and ordinary meaning of terms in a
`contract, New York courts will commonly refer to dictionary
`definitions. See Universal Am. Corp., 37 N.E.3d at 81 (relying
`on dictionary to determine “common definition” of terms in
`a rider); see also Citibank, N.A. v. Jacobsen, No. 19 Civ. 959
`(ER), 2020 WL 7046841, at *4 (S.D.N.Y. Dec. 1, 2020).
`
`Because there is no actual conflict between both jurisdictions
`regarding this claim, the Court analyzes it under the law
`common to both jurisdictions. See Cohen, 27 A.3d at 16;
`Burns, 991 A.2d at 673. As noted, in both jurisdictions, the
`elements for breach of contract are (1) the formation of an
`agreement, (2) performance by one party, (3) breach of the
`agreement by the other party, and (4) damages caused by the
`breach. See Meyers, 87 A.3d at 540; Beautiful Jewellers, 438
`F. App'x at 21–22. The parties agree that Wiener has satisfied
`the first element; they do, however, disagree about the other
`three elements.
`
`The material facts regarding the second element are
`undisputed: Wiener paid all of his obligations through
`September 2013, the policies lapsed as of October 1, 2013,
`and the sixty-one-day grace period had commenced at that
`time. Based on these facts, Wiener contends that he performed
`under the terms of the life insurance policies at the time
`AXA Equitable allegedly breached. In particular, because
`
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`
`6
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`Case 3:21-cv-01137-OAW Document 26-15 Filed 10/08/21 Page 8 of 23
`Wiener v. AXA Equitable Life Ins. Co., Slip Copy (2021)
`2021 WL 1226925
`
`the policies entered their grace period following his lapse in
`payment, Wiener argues that the policies were still in effect
`when AXA Equitable allegedly failed to send the premium
`reminder notices. AXA Equitable disagrees, arguing that
`Wiener failed to perform under the contract by lapsing on his
`payment.
`
`*8 The Court need not analyze the second element of this
`breach of contract claim because the record conclusively
`shows that Wiener fails to satisfy the third and fourth
`elements. As to the third element, the parties dispute whether
`the insurance policies required AXA Equitable to send
`premium reminder notices on November 1, 2013. At bottom,
`then, the dispute is one of contractual interpretation. The
`insurance policies state that AXA Equitable “will send
`premium reminder notices to [Wiener] for th