Wiener v. Axa Equitable Life Ins Co

Background

Malcolm H. Wiener brought this action against Axa Equitable Life Ins. Co., David Hungerford, Axa Advisors, L.L.C., and Axa Network, L.L.C. after they refused to reinstate his lapsed flexible-premium life insurance policies. On March 15, 2019, the court granted the defendants’ motion to preclude two proposed physician experts from testifying about Wiener’s medical insurability.

Wiener later moved for reconsideration or, alternatively, for certification of an interlocutory appeal. The court denied reconsideration on January 24, 2020, leaving the request for certification to be decided in this order.

Legal standard

Under 28 U.S.C. § 1292(b), a district court may certify an interlocutory appeal—an appeal before the case has reached a final judgment—if the order presents a controlling legal question, there is substantial disagreement about that question, and an immediate appeal may materially advance the end of the litigation. The court explained that such appeals are strongly disfavored and require exceptional circumstances.

Arguments and analysis

Wiener argued that the proposed appeal presented a controlling legal question: whether medical-doctor testimony was relevant to deciding whether a life-insurance applicant was in good health and “insurable.” He relied on a 1919 New York Court of Appeals decision involving reinstatement of a lapsed insurance policy. The court had previously distinguished that decision because the insurer in that case gave no reason for denying reinstatement, while the defendants here did provide a reason. The court also had found that Wiener’s proposed experts could not testify about whether the insurer’s underwriting decision was appropriate.

Wiener further argued that an appeal could materially advance the litigation because it might make resolution in his favor through motion practice more likely. The defendants responded that the court had already authorized a motion for summary judgment, meaning a request for judgment without a trial, and that the briefing schedule had only been paused while the expert motions were resolved. After resolving the reconsideration motion, the court set a schedule for the summary-judgment motion. The court therefore concluded that an interlocutory appeal would not materially improve the prospects for resolving the claims through motion practice.

Ruling

Judge Edgardo Ramos held that Wiener had not met the demanding standard for certification and had not shown exceptional circumstances justifying an appeal before final judgment. The court therefore denied Wiener’s motion for certification for interlocutory appeal. The order did not decide the underlying insurance claims.