hear now from the parties in a yard life versus lincoln benefit please the court my name is jason gosling i represent lincoln benefit life company in a breach of contract action the touchstone of the choice of law analysis is the reasonable expectations of the parties and in some situations the parties make it easy because they include a choice of law provision in the contract itself and that's what we have in this situation we have a life insurance policy or certificate this says that the policy will be subject to the laws of the jurisdiction in which the application was signed the clause is not labeled choice of law it's called conformity with state law right and it says  certificate is subject to the laws where the application is signed if any part doesn't comply with the law it will be treated by us as if it did that doesn't look like an ordinary choice of law provision and contracts that i'm familiar with that points to the law of a particular state and says without regard to its choice of law we're going to be governed by the state of new york with the laws and that interpretation of this contract will be governed by the laws of the city of new york why why can you say so  similar choice of law in new york i mean my point is the same district carney's i don't see how conformity clause necessarily points to a choice of law clause and you know the courts that have considered the question are split and to that extent if it's not clear it's going to the ambiguity is going to be construed against your client who drafted the contract i think that new jersey's choice of law would certainly be incorporated within the laws of new jersey but i think the laws of new jersey is broad enough to include choice of law plus the substantive law of new jersey regarding insurance contracts and whatever else might apply to this particular insurance policy the and i understand that sometimes a t m you have to look at a choice of law provision and apply it according to its terms sometimes it can be narrow sometimes it can be broader and subject to the laws of new jersey i view as essentially synonymous with governed by the laws of new jersey do you disregard the title well no i mean i think that it's a it's a provision that has two sentences one i think is a choice of law provision the second sense says if there's any anything in the certificate that's inconsistent with the laws of new jersey then we will find it doesn't mention new jersey at all of course russia says the state where the application was signed so again unlike many choice of law provisions it doesn't call out the name and identify the name of a particular state and so there's further fact finding to do about where the application was signed in order to even construe this right well yes but the one that actually i don't think so the it is correct that the beyond this clause to determine what state applies we have to look at that we have to look beyond the clause but we don't have to look beyond the contract because the application is attached to the contract in space since that comply with the laws of the state where the parties represented signed it's where the application was signed a matter of determinative fact which here was determined against represented the application was signed it says with the application was signed it yes it does you see your client drafted this contract and if it was concerned that i witnessed where it was signed and maybe parties would misrepresent where it was signed you could have drafted the contract to protect yourself from that possibility but here it's drafted in terms of this a matter of historical fact where was it signed i would understand that you would have more of the grounds for concern if the party that misrepresented to you where it was signed now wanted the benefit of its misrepresentation but you're led to gating here against a bona fide owner that said a third party own or your honor the way this life insurance policy and application works is that the company gets an application it has a provision says signed it will then issue a policy consistent with that ace if that was what happened here it wasn't signed where it was represented to have been signed how do you ask us to do anything other than look to the pla language of the contract because when you're applying a choice of law provision the policy itself the provision is clear on its face we would never get to parole that evidence we only got to parole levin's because the court disregarded the choice of law provision and did a center of gravity analysis and that's where we learned all of these facts the the policy itself which is includes a choice of law provision because the application is attached on its face says it was signed at new jersey now it turns out that that was not accurate but the policy itself is clear on its face and we would never get to the center of gravity analysis and the current policy owner who stands in the shoes of the prior policy owner would be is stopped from coming in here and claiming something different that was in the application itself owner and now stands in the shoes of that original owner and its rights there are no greater and no less than the original owner so they're essentially stuck with the terms the policy as negotiated by the original owner lincoln i understand that lincoln is registered to do business in and can issue policies only in new jersey but this broker was dealing with people very much new york based and received a commission and in fact lincoln has continued to accept premium payments on this notwithstanding all of the new york content contacts that are evident here so i'm concerned about what is the effect of this cross border issue from lincoln's perspective the the broker here was representing the client which was the owner and that broker had an appointment with lincoln benefit to do business in new jersey so lincoln benefit actually appointed the broker to sell product in nugent sell new jersey product in new jersey now as it turns out the person was not doing that the that broker was actually selling product in new york and policy it takes the position that until the court declares the policy to be invalid it will treat it as valid it's not going to take its remedy before that remedy is declared by the court this broker affectively your age know because it well the broker is an independent contractor they non exclusive agent permitted to sell product for a multitude of companies extending selling your contract you expect him to ensure that it's done in compliance with the law for instance he operates out in new york you're not licensed to sell insurance in new york right correct so he could only sell to people in new jersey who signed in new jersey and he parent lien it that it was signed in new york and in that respect isn't that his knowledge ascribed to you when he selling your policy here is he is a an agent of the owner know he receives a commission from the insurance company and so to that extent i'm not sure why he is your agent obliged obliged by his duties to you he's telling you yes this is signed in new jersey then and says he's basically betrayed the trust placed in this issue wasn't really litigated at the district court but the law in new york is fairly clear that a captivation an exclusive agent who sells product for an insurance company will be the agent of the insurance company a broker who's a non exclusive agent retained by the owner to find the best product for that owner or that insured is considered an agent of the owner not the insurance company we had the latter situation here the court jewel russo for the police a high life which is a bona fide purchaser of this of this policy as the panel knows life insurance is a heavily regulated state regulated industry new york is the most strict regulatory state in the country and has the fewest number of life insurance companies licensed here because most companies likely could benefit don't like the stri regulation sectional level know one of the new york insurance co defines what it means to do business among the things doing business in new york is to solicit residents to buy your policy and to issue for delivery a policy to someone who's a resident both of those things happened here judge weinstein found they happened here the agent had a contract with the insurance company what he had authority to do was solicit you may sell less that people to buy our product he did that he did it in new york you then are responsible the contract in authorizing the contract didn't say anything about where he could do it the contract said you authorized to solicit our product and then to deliver our product the testimony judge weinstein said i need to discover two things as a factual matter at the hearing in august when he set up the live testimony i want to know the center of gravity and i also want to know where was the contract signed where was the application signed those are the two issues he even found those issues in doing so he found it was so let's put it in new york it was delivered in new york article thirty two which is a broad article it governs all life acts and health policies in new york applies to any policy issued for delivery in new york or solicited in new york there is no doubt new york law this policy is subject to new york law article thirty two applies to you hurdles to get over first year and siri says that you have a choice of law in this contract and the second is that the party from whom you basically acquire your rights is the party that misrepresented that it was signed in new jersey and that you should no more be able to deny that than they  want to tell us how you clear those two hurdles well i think the hurdle the choice of law last i think and we've we've addressed that pretty broadly in our brief it's not a choice of law it's conformity with law again life insurance is state regulated a policy issued and delivered in new york is subject to new york law have the parties agreed it might be subject to some other law as well possibly i think  clause had said as your honor suggested this policy will be subject to the law where the application states it was signed now you would have a policy subject to both new york and new jersey law is subject  the law the policy ever invalidated and of avenue because it was issued by an entity that wasn't authorized to issue it in the particular place where the  as a here only authorized to do insurance work in the new jersey the new york courts or for the new records are very strict they will they will enforce a contract against a carrier like lincoln benefit that does business in the state without a license they impose certain the regulator may impose penalties the court may impose pre x or security under section twelve thirteen but the policy itself is valid doesn't invalidate the policy at all but so that the choice of law here is not a choice of conflict of law in a dispute over the terms of policy because the policy is issued for delivery in new york an article thirty two applies part of article thirty two as section thirty two of five which requirement subject to thirty two zero five c three i believe which says the estate of of the insured may seek at any time to collect a death benefit if insurable after she is violated those provisions men are mandatory on this policy will since you're mentioning that i was intrigued by thirty two zero five c which provides that no contract of insurance shall be made or effectuated unless the individual who's insured applies for consents in writing to make either contract he and there are two appellate division cases holding policy is void of an issue never came into existence be on proof that the application was not signed by the insured here i didn't see any evidence that showed that the insured that gabrielle a fisher had consented to the being in and subject to the insurance policy and i wonder what your view is about whether that just renders the policy laid from the get go it does not already to a five c given this case law does not for two reasons because by virtue of the cases cited by judge weinstein and his judgment the rule in new york is that consent requirement is also part by the two hearing contestability what the cases that are cited by my opponent relate to imposture insurance that were never owned and taken out by the insured here factually what what lincoln benefit has always won the overlook is part two of its two part application part two is a medical part that the insurer not only signs but sits for a medical exam that was done the record is clear only the only cases that have been flat have said this policy can't be enforced for lack of consent is where it was true imposture insurance the charge in our case is that it's true impostor insurance wasn't there was no involvement by the insurer here that the dis  court has outlined all the involvement the insured was part of this as was her son as was the agent who met with and celeste at the both of them so the evidence here i think was very fairly clear of consent but more importantly it's not required in a case like this where she participated in taking out the insurance on factual findings of great distress distinction by the court as to exactly who did what and particularly the medical examiner so i think factually you have it legally you don't need it under those cases as i think we come back to this was a new york policy the agent was appointed the evidence  the hearing from agent for the for the witness for the insurance company was well we expect our agents in new york to know they have to do everything in another state they can't do anything here but we don't tell them anything not our job to tell them anything we never gave this agent any direction and the court was absolutely correct in finding that every element of transacting business took place in new york that makes the policy stuff signed that they signed it in new jersey when they didn't so the agent knew that he couldn't sell this policy meet here we have a situation where at least the facts could be construed that the insurance company got bamboozled your client bought this policy on for whatever you paid for it and you're out of that money plus plus the premiums you've been paying why isn't just result here is is an line me to the extent you paid the pot just paid the premiums to the plaintiffs they give you back the money to the extent you paid money to the you for adding insured you sue them for the money i mean what wh that what happens here is you get to keep gambling on this woman's life several reasons your honor number one is this is a policy the liver to insurance company can say well they told us they signed in new jersey they delivered the policy and issued it for delivery in new york that's a finding by the court it's actually on the face of the policy deliver to a trust in new york that triggers article thirty two hundred this policy is governed by new york law despite what the company wants to say secondly under new york law it can't be challenged after two years the argument you're making your honor can't be because new york law is very clear thirdly that's an equitable position it was argued it was addressed by judge weinstein and he said i'm not going to grant any equity the company acted with latches i took years and years and years of collecting premium and what he said from the record was it would be unfair to the investor remember my client the investor bought this under article seventy eight of the insurance co life settlement act was a valid purchase under new york law of a policy over two years old so it would be improper as a state regulatory matter to say we're somehow going to create an exception to in contestability in new york for fairness when the court says there's no reason for fairness in favor of the insurance company thank you gosling you have a few minutes thank you want to go back to the notion about reasonable expectations of of the parties we have a contract and the rule that the district court fashioned here when you think about it it's horribly broad and probably almost unworkable because the exception to a choice of law clause is when the fraud relates to the choice of law and that's because in those circumstances the choice of law provision does not reflect the expectations of the parties here we have  governs that he look to the state with the greatest contacts of the parties and person saves new york you're going to be in new york well i think because we're in new york we have to go to new york's choice of law principles and new york says is would be subject to the laws of new jersey so whether this is valid or not would depend on what new jersey law says about that we're not persuaded by well we have arguments in our brief i think you know one of the most important ones is the lack of consent there is evidence here that mrs fisher did not consent to this policy she was given a copy of her happy cation she said that's not my signature she was asked to record show that she participated in a medical examination with this policy in mind  i mean it's very her testimony doesn't say that there's a medical exam with a signature on it but her testimony doesn't establish that it was her testimony on the application he denied it i don't know that she was asked that to to be denied signing it is not something we can assume is true for purposes of the consent you must assume it was true because once you didn't find her credible because once these apply once you determine new york law applied is deciding their motion for summary judgment we were entitled to all it to the reasonable inference is the all factual inferences should have been construed in our favor we had her testimony saying she didn't sign it and she didn't consent to it we also had and   only for clear air that was for the what happened was we briefed the summary judgment the judge weinstein had oral argument he then asked to come back because he was going to do this center of gravity test and he wanted to take factual findings on the choice of law he's entitled to do that but once he decided new york law applied he's looking at their substantive claims and he was obligated to give lincoln benefit the reasonable inference is flowing from from the not because we were entitled to a jury trial on that question i went into that expecting that we're going to factual findings on choices on title to do that for purposes of choice of law purposes if there are facts questions that need to be decided for choice of all he can do that and and those were center of gravity facts that all those facts came out in the center of gravity analysis once he decided new york law applied we had summary judgment motions and our position was that she never consented and a jury should beginning conformity with state law those words were in the contract yes well yes in conformity with the laws where the other place where the application was signed is what it said is that heading for think there can be a big difference that will take this case under advisement