Columbus Life Insurance Company v. Wells Fargo, NA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

Case No. 4:20-cv-00041-M

COLUMBUS LIFE INSURANCE )

COMPANY, )

)

Plaintiff, )

) OPINION

) AND ORDER

)

WELLS FARGO BANK, N.A., as Securities )

Intermediary, )

)

Defendant. )

This action was brought under the Declaratory Judgment Act seeking to contest a life-insurance

policy. For the reasons that follow, the court: (1) declines to adjudicate the declaratory claims; and

(2) abstains from adjudicating the legal and equitable counterclaims pending state-court resolution of an

unsettled question regarding a significant North Carolina state policy.

I. Background

On May 15, 2020, Plaintiff Columbus Life Insurance Company filed an amended complaint seeking

a judgment declaring that an insurance policy it issued, and to which Defendant Wells Fargo Bank, N.A.

holds title, is void. [DE-6] Plaintiff alleges that: (1) the policy at issue is a so-called stranger-originated

life-insurance (“STOLI”) policy; and (2) STOLI policies are void as a matter of public policy and

unenforceable under North Carolina law. [DE-6]

On June 25, 2020, Defendant filed an amended answer to Plaintiff's amended complaint in which

Defendant: (1) raised affirmative defenses to Plaintiff's declaratory claims, including that the policy at issue

“is incontestable” [DE-15 at 14]; and (2) brought counterclaims against Plaintiff for breach of contract and

unjust enrichment in connection with the policy [DE-15 at 17-18].

On July 17, 2020, Plaintiff: (1) moved to strike certain of Defendant’s affirmative defenses,

including the incontestability defense, under Federal Rule of Civil Procedure 12(f) [DE-18]; and (2) moved

to dismiss Defendant’s counterclaims for failure to state a claim upon which relief can be granted under

Federal Rule of Civil Procedure 12(b)(6) [DE-20]. This matter comes before the court on Plaintiffs

motions.

II. Analysis

a. Plaintiff's declaratory claims

By seeking declaratory relief in this court, Plaintiff has implicitly invoked the federal Declaratory

Judgment Act (the “DJA”), 28 U.S.C. § 2201. The DJA provides as follows:

In a case of actual controversy within its jurisdiction . . any court of the United

States, upon the filing of an appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such declaration, whether or not

further relief is or could be sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201(a). The court is satisfied that Plaintiff's amended complaint appropriately pleads an actual

controversy that is within the court’s diversity jurisdiction under 28 U.S.C. § 1332. [see DE-32]

A threshold question is whether the court, having jurisdiction to do so, should decide to hear the

case. It is well-established that the DJA does not oblige federal courts to make any declarations of rights,

but rather gives federal courts the power to make such declarations should they elect to do so in the exercise

of their sound discretion. See Wilton v. Seven Falls Co., 515 U.S. 277, 282, 287 (1995) (“district courts

possess discretion in determining whether and when to entertain an action under the [DJA], even when the

suit otherwise satisfies subject matter jurisdictional prerequisites. ... We have repeatedly characterized the

[DJA] as ‘an enabling Act, which confers a discretion on the courts rather than an absolute right upon the

litigant.’” (quoting Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)); United Capitol

Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th Cir. 1998) (“The [DJA] provides that district courts ‘may

declare’ the rights of interested parties. This permissive language has long been interpreted to provide

discretionary authority to district courts to hear declaratory judgment cases.”).

The Fourth Circuit long ago said that a district court should hear a declaratory-judgment action when

the judgment sought would (1) “serve a useful purpose in clarifying and settling the legal relations in issue”

and (2) “terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the

proceeding.” Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937) (quotation marks and

citation omitted). But the Quarles court also said that the DJA should not be used “to try a controversy by

piecemeal, or to try particular issues without settling the entire controversy, or to interfere with an action

which has already been instituted.” Jd.

Declaratory-judgment actions seeking adjudication of state-law issues that are brought in federal

court pursuant to diversity jurisdiction require additional considerations:

[When a federal court is confronted with an insurer’s request for a declaratory

judgment on coverage issues during the pendency of related litigation in the state

courts, its discretion must be guided not only by the criteria outlined in Quarles,

which focus on the general utility of the declaratory relief sought, but also by the

same considerations of federalism, efficiency, and comity that traditionally inform

a federal court’s discretionary decision whether to abstain from exercising

jurisdiction over state-law claims in the face of parallel litigation in the state courts.

Nautilus Ins. Co. v. Winchester Homes, 15 F.3d 371, 376 (4th Cir. 1994). The “considerations of federalism,

efficiency, and comity” that district courts must consider in deciding whether to hear a declaratory-judgment

action involving state-law causes of action—the so-called Nautilus factors—have been articulated by the

Fourth Circuit as follows:

(1) the strength of the state’s interest in having the issues raised in the federal

declaratory action decided in the state courts;

(ii) | whether the issues raised in the federal action can more efficiently be

resolved in the court in which the state action is pending;

(iii) | whether permitting the federal action to go forward would result in

unnecessary entanglement between the federal and state court systems,

because of the presence of overlapping issues of fact or law; and

(iv) | whether the declaratory judgment action is being used merely as a device

for procedural fencing--that is, to provide another forum in a race for res

judicata or to achieve a federal hearing in a case otherwise not removable.

Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 257 (4th Cir. 1996) (quoting Nautilus, 15 F.3d at 377

(internal quotation marks and brackets omitted)). Although the Nautilus factors speak to pending state

action, the Fourth Circuit has made clear that the same factors are to be considered where there is no state

action pending. Aeina Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d 419, 424 (4th Cir. 1998) (“a district

court does not per se overstep the bounds of its discretion when it dismisses a declaratory judgment action

in the absence of a pending parallel state court proceeding. Rather, such a dismissal is within the district

court’s discretion, and that discretion is not abused so long as the factors which we have enumerated to

guide district courts in this determination weigh in favor of denying declaratory relief.”).

In the amended complaint, Plaintiff seeks to prospectively establish a defense to an action to enforce

the life-insurance policy. Defendant’s incontestability defense is in essence a defense to Plaintiffs defense,

with which Defendant could keep Plaintiff from being able to contest the policy’s validity on the grounds

raised in the amended complaint. The viability of Defendant’s incontestability defense is therefore

potentially dispositive of this dispute.’

Plaintiff argues that the court should strike Defendant’s incontestability defense as invalid because:

(1) if Plaintiff is able to establish that the policy at issue is a STOLI policy, the policy would be void ab

" See infra Section II(b) (discussing Defendant’s counterclaims).

initio as a matter of North Carolina’ public policy as an insurance contract issued without “insurable

interest,” see Vance v. Wiley T. Booth, Inc., 112 N.C. App. 600, 602~03, 436 S.E.2d 256, 258 (1993)

(discussing “insurable interest”); and (2) a party cannot use an incontestability clause in a life-insurance

policy to overcome a defense that such a contract is invalid and unenforceable for lack of insurable interest.

[DE-19 at 18-20] Both of Plaintiffs arguments find support in certain opinions from the North Carolina

Supreme Court, most notably Wharton v. Home Sec. Life Ins. Co., 206 N.C. 254, 173 S.E. 338 (1934).

In Wharton, the beneficiary of a life-insurance policy sued the insurer seeking the proceeds of the

policy. Id, at 256, 173 S.E. at 339. The jury rendered a verdict in the beneficiary’s favor, and the insurer

appealed the resulting judgment, which ultimately reached the North Carolina Supreme Court. Jd. The

Wharton court first said:

It is well settled as the law in this and other jurisdictions that a person cannot take

out a valid and enforceable policy of insurance for his own benefit on the life of a

person in which he has no insurable interest; such a policy or contract of insurance

is void and unenforceable on grounds of public policy, it being merely a wagering

contract.

Id. The court noted that the beneficiary conceded that the policy was issued without insurable interest, but

that she argued “that the principle is not applicable because of the presence in the policy of the incontestable

clause” which stated that “[a]fter this policy has been in force for two full years, it shall be incontestable

except for nonpayment of premiums, fraud, misstatement of age or violation of article third.”? Id. at 255—

56, 173 S.E. at 338-39. The court rejected the beneficiary’s incontestability argument as follows:

This contention cannot be sustained. The parties to a contract which is void because

in contravention of a well settled public policy, cannot bind themselves by such

contract, and thus deprive the courts of the power to enforce the public policy of

* The parties agree that the substantive law of North Carolina governs this dispute. [DE-19 at 18; DE-24 at

18]

? The Wharton opinion does not specify what “article third” of the contract there at issue concerned, but the

court does not consider that important.

the State by their judgments. ... If at any time it appears in the process of the

action that the contract sued upon is one which the law forbids, the Court will refuse

relief.

Id. at 256-57, 173 S.E. at 339. The judgment for the beneficiary was accordingly reversed. Id.

Plaintiff relies heavily on Wharton’s holding that an incontestability clause in a contract cannot

overcome a defense that the contract “is void because in contravention of a well settled public policy” (the

“Wharton rule”). Id. Defendant counters that: (1) Wharton has not been cited by any North Carolina court

in more than 50 years; and (2) the North Carolina General Assembly, by enacting N.C. Gen. Stat. § 58-58-

22 in 1995, abrogated the Wharton rule in the life-insurance-policy context. [DE-24 at 17-22] N.C. Gen.

Stat. § 58-58-22 sets forth as follows:

No policy of individual life insurance shall be delivered in this State unless it

contains in substance the following provisions, or provisions that in the

Commissioner’s opinion are more favorable to the person insured:

(2) Incontestability. — A provision that the validity of the policy shall not

be contested, except for nonpayment of premium, once it has been in force

for two years after its date of issue[.]

N.C. Gen. Stat. § 58-58-22(2). Since it is uncontested that the policy at issue was delivered in North

Carolina sometime in 2004-05 [DE-6 J 10-17]—and thus long following N.C. Gen. Stat. § 58-58-22(2)’s

enactment in 1995—Defendant argues that the policy became incontestable by 2007 “except for

nonpayment of premium[.]” [DE-24 at 17-18] And because Plaintiff's declaratory-judgment action seeks

to establish that the policy at issue is invalid for another reason, Defendant argues that Plaintiff's request

for declaratory relief must be rejected.

The North Carolina Supreme Court has said that “it is well settled that North Carolina common law

may be modified or repealed by the [North Carolina] General Assembly, except for any parts of the common

law which are incorporated in [the North Carolina] Constitution.” Rhyne v. K-Mart Corp., 358 N.C. 160,

169, 594 S.E.2d 1, 8 (2004) (internal quotation marks, brackets, and citation omitted). The Rhyne court

said that “[t]he legislative branch of government is without question the policy-making agency of our

government, and when it elects to legislate in respect to the subject matter of any common law rule, the

statute supplants the common law rule and becomes the public policy of the State in respect to that particular

matter.” Jd. (internal quotation marks and citation omitted). The North Carolina Constitution contains

certain provisions regarding life-insurance policies, see N.C. Const. Art. X § 5, but does not incorporate:

(1) any rights of insurers to contest life-insurance policies; or (2) any rights of contractual counterparties to

contest or enforce contracts more generally. Because the North Carolina Constitution therefore does not

incorporate the Wharton rule, “the common law rule” was arguably “supplant[ed]” in the life-insurance-

policy context by N.C. Gen. Stat. § 58-58-22(2)’s enactment. Rhyne, 358 N.C. at 169, 594 S.E.2d at 8.

Indeed, since incontestability clauses could be worded more broadly than the incontestability

provision contemplated by N.C. Gen. Stat. § 58-58-22(2) (as evinced by the above-described clause at issue

in Wharton), Defendant has a strong argument that the North Carolina General Assembly changed the

public policy of the state regarding when and how life-insurance policies may be contested by enacting the

statute, narrowing the law such that the only viable defense that may now be raised by an insurer to contest

a life-insurance policy following the two-year statutory period is the nonpayment of insurance premiums.

After all, the incontestability provision in Wharton was a mere agreement between contractual

counterparties, which agreement the court held was insufficient to trump the state’s “well settled public

policy[,]” Wharton, 206 N.C. at 256-57, 173 S.E. at 339, whereas the incontestability provision here at

issue* is required and governed by statute, which is the state’s public policy.

4 Neither party has proffered the policy to the court at this juncture, but the court assumes from the parties’

arguments that the policy here at issue is compliant with N.C. Gen. Stat. § 58-58-22(2) and includes the

required provision.

But neither party directs the court’s attention to any case law discussing N.C. Gen. Stat. § 58-58-

22(2)’s impact upon the Wharton rule, or any other North Carolina authority addressing the question of

whether an incontestability clause in a life-insurance policy can overcome a defense that the policy is void

as a matter of public policy for lack of insurable interest—or that the policy is invalid for any other reason

except the nonpayment of premiums—following N.C. Gen. Stat. § 58-58-22(2)’s enactment (the “Wharton-

rule issue”). Defendant concedes that the law is unsettled on this score. [DE-24 at 19, 21] Plaintiff relies

on decisions from the high courts of Delaware and New Jersey in arguing that “the weight of other

authority” supports its position. [see DE-19 at 20 (discussing PHL Variable Insurance Company v. Price

Dawe 2006 Insurance Trust, 28 A.3d 1059 (Del. 2011) and Sun Life Assurance Company of Canada v.

Wells Fargo Bank, National Association, 208 A.3d 839 (N.J. 2019)). In so doing, Plaintiff effectively

concedes that the question has not been addressed by North Carolina courts. The court has considered the

arguments of the parties’ able counsel, but after conducting its own independent research, the court

concludes that the Wharton-rule issue is unsettled such that the court would have to resolve a novel question

of state law to adjudicate Plaintiff's declaratory claims.

In Mitcheson v. Harris, 955 F.2d 235 (4th Cir. 1992), the Fourth Circuit discussed the competing

federal and state interests when a federal court sitting in diversity is asked to issue a declaratory judgment

regarding questions of state law. Id. at 237-38. The Mitcheson court noted that, by conferring diversity

jurisdiction upon the federal courts in Article III, the United States Constitution clearly expressed the

“paramount federal interests in having federal courts resolve questions of state law and accord protection

to out-of-state parties.” Jd. at 237. But the court also recognized that “[t]here exists an interest in having

the most authoritative voice speak on the meaning of applicable law, and that voice belongs to the state

courts when state law controls the resolution of the case[,]” noting that in other contexts the Supreme Court

had “stated that . . . federal court[s] should frequently exercise [their] discretion to dismiss [a] case in order

to avoid ‘needless decisions of state law’ when a state court could provide ‘a surer-footed reading” thereof.

Id. at 237-38 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Because only state-law

claims were there at issue, and in recognition of a pending state action on related claims, the Mitcheson

court stated:

Absent a strong countervailing federal interest, the federal court here should not

elbow its way into this controversy to render what may be an “uncertain and

ephemeral” interpretation of state law.

Id, at 238 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 122 n.32 (1984)). Finding

no strong countervailing federal interest, the Mitcheson court concluded that “the state interest in resolving

matters of state law should have guided the exercise of federal judicial discretion[,]” and reversed the district

court with instructions to dismiss the declaratory action upon remand. Jd. at 238.

In Nautilus, the Fourth Circuit applied Mitcheson in concluding that there was not a state interest in

having the state-law questions there at issue answered by the state’s courts that was sufficiently compelling

to justify a refusal to hear the declaratory suit. 15 F.3d at 377-78. The Nautilus court reached this

conclusion because the state-law questions “involve[d] the routine application of settled principles of law

to particular disputed facts[,]” noting that “[iJn analogous situations in which a federal court possesses

discretionary power to abstain from deciding state-law questions otherwise properly within its jurisdiction,

that discretion may be exercised only when the questions of state law involved are difficult, complex, or

unsettled.” Jd. at 378.

Plaintiff seeks a declaration that the policy at issue is a void STOLI policy. Were the court to so

rule and grant Plaintiff the declaratory judgment it seeks, the question would remain whether Defendant

could initiate a lawsuit for breach of the policy and, by invoking the incontestability defense, keep Plaintiff

from using the judgment as a defense to that lawsuit. Thus, without a ruling on Defendant’s incontestability

defense—and thus a resolution of the unsettled Wharton-rule issue—the judgment Plaintiff seeks would

neither “serve a useful purpose in clarifying and settling the legal relations in issue . . . [nor] terminate and

afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding[,]” but would

likely rather result in “try[ing the] controversy by piecemeal, or . . . try[ing] particular issues without settling

the entire controversy[.]” Quarles, 92 F.2d at 325 (citations omitted). Such a judgment would therefore

not be the sort that the court should consider granting under Quarles.

If the court were to resolve the Wharton-rule issue, the resulting judgment would settle the issue

between the parties within the meaning of Quarles. See Kapiloff, 155 F.3d at 494 (“It is well established

that a declaration of parties’ rights under an insurance policy is an appropriate use of the declaratory

judgment mechanism.”). But resolving the unsettled issue would require an “uncertain and ephemeral

interpretation of state law[,]” which Mitcheson says courts should avoid undertaking unless “a strong

countervailing federal interest” militates otherwise. 955 F.2d at 238 (quotation marks and citation omitted).

The court discerns no strong countervailing federal interest here. As in Mitcheson, “the only federal interest

at issue in this case is the same interest federal courts have in deciding any diversity case.” Id.

In light of Quarles, Mitcheson, and Nautilus, the court accordingly concludes that North Carolina

courts should resolve the Wharton-rule issue. As noted above, the first of the Nautilus factors that the court

must consider in a case like this concerns “the strength of the state’s interest in having the issues raised in

the federal declaratory action decided in the state courts[.]” Centennial Life, 88 F.3d at 257. North

Carolina’s interest in resolving the unsettled Wharton-rule issue is very strong. See Hartford Fire Ins. Co.

v. Kinston Plumbing & Heating Co., 868 F. Supp. 120, 122 (E.D.N.C. 1994) (dismissing DJA action in

exercise of discretion because the court “would be forced to speculate” regarding a question of first

impression under North Carolina law, about which the state’s interest was “crucial”); cf. Kapiloff, 155 F.3d

at 494 (finding “the interests of Maryland in deciding this case were not particularly significant” because

the state-law issues were “standard” and the “federal court would [therefore] be unlikely to break new

10

ground or be faced with novel issues of state interest”). Concerning the rest of the Nautilus factors, although

the court is aware of no pending state action such that a ruling by this court would necessarily risk

(2) causing unnecessary inefficiency or (3) entangling the federal and state court systems, and (4) the court

does not conclude that Plaintiffs DJA action is mere device to procedurally fence in Defendant, the court

concludes that these considerations do not outweigh (1) North Carolina’s very-strong interest in resolving

the Wharton-rule issue. See Hartford, supra; Ind-Com, 139 F.3d at 423-24 (affirming discretionary refusal

to hear declaratory action in absence of parallel state proceeding where the “case raises important issues of

unclear state law in which the state of North Carolina has an important interest[,]” agreeing with the district

court that “the existence or nonexistence of a state court action is simply one consideration relevant to

whether to grant declaratory relief.”); Reifer v. Westport Ins. Corp., 751 F.3d 129, 141, 14445 (3d Cir.

2014) (following Jnd-Com and affirming discretionary refusal to hear declaratory claims in absence of

parallel state proceeding in light of unsettled question of Pennsylvania law: “[W]hen applicable state law is

uncertain or undetermined, district courts should be particularly reluctant to exercise DJA jurisdiction.

Rather, the proper relationship between federal and state courts requires district courts to step back and

permit state courts to resolve unsettled state law matters.” (internal quotation marks and citations omitted)).

In sum, North Carolina’s very-strong interest in resolving the unsettled Wharton-rule issue guides

the court’s decision to decline, in its discretion, to adjudicate Plaintiff's declaratory claims.°

b. Defendant's counterclaims

Because Defendant has filed counterclaims for non-declaratory relief, the court cannot decline to

adjudicate those claims in the exercise of the discretion afforded by 28 U.S.C. § 2201(a). See Beaufort

5 The court notes that, unlike other states, there exists no mechanism allowing federal courts to certify

questions of North Carolina law to North Carolina’s courts, see Colony Ins. Co. v. Peterson, 582 F. App’x

156, 160 n.2 (4th Cir. 2014), and that Plaintiff accordingly must seek its declaratory judgment, if at all, in

North Carolina state court.

11

Dedicated No. 5 Ltd. v. Bradley, No. 1:11-cv-673, 2012 U.S. Dist. LEXIS 110946, at *20 (M.D.N.C. Aug.

8, 2012) (““Abstention considerations with respect to nondeclaratory claims are usually undertaken pursuant

amore demanding standard for abstention”). Nevertheless, the court concludes that it should abstain

from hearing Defendant’s legal and equitable counterclaims as well, for essentially the same reasons

discussed above in Section II(a), but on a different jurisprudential basis.°

As with Plaintiff's declaratory claims, adjudication of Defendant’s counterclaims depends upon

resolution of the Wharton-rule issue. A ruling that the Wharton rule endures in the life-insurance context,

and that the policy at issue is therefore contestable as void as a matter of public policy, means that

Defendant’s breach-of-contract counterclaim would fail if the policy is proven void as Plaintiff alleges.

Wharton, 206 N.C. at 256-57, 173 S.E. at 339. On the other hand, Defendant’s unjust-enrichment

counterclaim—which is pleaded “{i]n the alternative, should the Policy be held to be void” [DE-15 at 18 |

25}would be rendered unviable by a ruling that the Wharton rule was abrogated in the life-insurance

context by N.C. Gen. Stat. § 58-22-22(2). In that case: (1) the policy would be incontestable (on the grounds

alleged) by Plaintiff, who would be thereafter obligated to pay the proceeds of the policy pursuant to the

terms of the contract; and (2) the premium payments made as consideration for the policy would plainly not

have enriched Plaintiff unjustly. See /Pmorgan Chase Bank, Nat’l Ass’n v. Browning, 230 N.C. App. 537,

542, 750 S.E.2d 555, 560 (2013) (unjust enrichment claim only viable “where it would be unfair for the

recipient to retain” the benefits received). The court is therefore again faced with the same uncertainty

raised by Plaintiff's claims seeking declaratory relief.

6 Although neither party has argued in favor of abstention, the court may elect to abstain sua sponte. Front

Royal & Warren Cnty. Indus. Park Corp. v. Town of Front Royal, 945 F.2d 760, 763 (4th Cir. 1991) (“we

may apply the abstention doctrine at our own instance even if no party urges the doctrine upon us”).

12

The Fourth Circuit recently noted that “even where jurisdiction is not discretionary, courts may

abstain from exercising jurisdiction under certain circumstances that may intrude on the prerogative of state

courts.” Trustgard Ins. Co. v. Collins, 942 F.3d 195, 201-02 (4th Cir. 2019) (citing to the Supreme Court’s

decisions in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976); Younger

v. Harris, 401 U.S. 37 (1971); Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25 (1959);

Burford v. Sun Oil Company, 319 U.S. 315 (1943); and Railroad Commission of Texas v. Pullman

Company, 312 U.S. 496 (1941)). In Thibodaux, the Supreme Court held that federal courts sitting in

diversity may abstain from ruling upon a “doubtful and unsettled” question of state law that is “intimately

involved with sovereign prerogative” and await the question’s resolution in the state courts, in order to

avoid “mak[ing] a dubious and tentative forecast” regarding the answer. Thibodaux, 360 U.S. at 27 n.2,

28-29; see Colo. River, 424 U.S. at 814 (Thibodaux “[a]bstention is . . . appropriate where there have been

presented difficult questions of state law bearing on policy problems of substantial public import whose

importance transcends the result in the case then at bar.” (citing Thibodaux)). Thibodaux abstention is

undertaken “in regard for the respective competence of the state and federal court systems and for the

maintenance of harmonious federal-state relations in a matter close to the political interests of a State[,]”

and is applicable to both legal and equitable claims. Thibodaux, 360 U.S. at 29.

The Fourth Circuit has said that Thibodaux abstention is appropriate in diversity cases where:

(1) state law is unsettled, and

(2) an incorrect federal decision might embarrass or disrupt significant state

policies.

Nature Conservancy v. Machipongo Club, Inc., 579 F.2d 873, 875 (4th Cir.) (per curiam), cert. denied, 439

U.S. 1047 (1978). In Machipongo, a case involving a dispute about ownership of a beach-access road in

Virginia, the Fourth Circuit ruled that Thibodaux abstention was appropriate for the following reasons:

13

Abstention in this case is proper with regard to the issues of statutory interpretation

that relate to the ownership of the beaches and the meadow and marshlands. The

interpretation of the statutes [at issue] is unsettled, so a federal court would be

required to reach its judgment without any guidance from the authoritative tribunal,

and the issue of the ownership of the beaches and meadow and marshlands raises

fundamental questions of public policy that should be resolved in the first instance

by the state courts. With respect to the ownership of the beaches, meadow and

marshlands, we are not unmindful that an incorrect federal decision might adversely

affect property owners throughout all of Virginia’s coastal regions.

Id. at 875-76. The Machipongo court accordingly remanded the case to the district court with instructions

to stay its judgment pending a final decision by the Supreme Court of Virginia on the statutory-

interpretation issues. Jd.

Thibodaux abstention is similarly appropriate here. First, the Wharton-rule issue is an unsettled

question of North Carolina law, as explained in detail above. See supra Section II(a). And second, when

and how insurers can contest life-insurance policies delivered in North Carolina—a question that the

Wharton-rule issue leaves unsettled—is a policy that is significant to North Carolina. Regulation of the

insurance industry is a sovereign prerogative that Congress has expressly reserved to the states, see 15

§§ 1011-12 (“Congress hereby declares that the continued regulation and taxation by the several

States of the business of insurance is in the public interest, and that silence on the part of the Congress shall

not be construed to impose any barrier to the regulation or taxation of such business by the several States.”),

because of the states’ fundamental interests in protecting their citizens, see Haisten v. Grass Valley Med.

Reimbursement Fund, Ltd., 784 F.2d 1392, 1406 (9th Cir. 1986) (recognizing “the strong state interest in

regulating insurance which concerns the ‘lives and limbs’ of the public”). That North Carolina considers it

important to regulate its insurance industry—including concerning the specific aspect of insurance law

implicated by the Wharton-rule issue—is demonstrated by the fact that the North Carolina General

Assembly felt it necessary to enact N.C. Gen. Stat. § 58-58-22(2) to require incontestability clauses in all

life-insurance policies delivered within the state. Accordingly, the state policy here at issue is clearly

14

significant within the meaning of Machipongo, and has “substantial public import . . . transcend[ing] the

result in the case . . . at bar.”’ Colo. River, 424 U.S. at 814 (describing the state policies that implicate

Thibodaux abstention); see Charleston Area Med. Ctr. v. Blue Cross & Blue Shield Mut., 6 F.3d 243, 250

n.5 (4th Cir. 1993) (noting in obiter dictum that “[w]e are troubled by the district court’s alleged abuse of

discretion in denying the defendant’s motion to abstain” because, inter alia, the “case by necessity entails

an analysis of the regulation of the insurance industry in West Virginia -- a complex state statutory scheme

involving policy problems of substantial public import and state interest. We believe this case presents

precisely the type of litigation in which federal courts should carefully consider abstaining.”).

Because adjudicating Defendant’s counterclaims would inevitably require the court to make a

tentative forecast regarding an unsettled question of law concerning a significant North Carolina state

policy, the court abstains from adjudicating Defendant’s counterclaims under Thibodaux.

II. Conclusion

For the foregoing reasons, the court DISMISSES Plaintiff's declaratory claims and STAYS

adjudication of Defendant’s counterclaims pending a ruling by the North Carolina Supreme Court regarding

the Wharton-rule issue.* Plaintiffs: (1) amended complaint [DE-6] is DISMISSED without prejudice to

’ The court notes that the parties in this case are engaged in other litigation directly implicating the Wharton-

rule issue, in at least one other case with virtually-identical facts and issues which is also pending in this

court. See Columbus Life Ins. Co. v. Wells Fargo Bank, Nat'l Ass’n, 4:20-cv-00073-M (E.D.N.C.) (filed

May 4, 2020), at Dkt. 10-11 (motion to dismiss on N.C. Gen. Stat. § 58-58-22(2) incontestability grounds).

This fact makes clear that an incorrect decision would have import extending beyond the instant dispute,

and weighs in favor of abstention. See Hartford Cas. Ins. Co. v. Borg-Warner Corp., 913 F.2d 419, 426

(7th Cir. 1990) (affirming Burford abstention in insurance-regulation dispute: “The importance of the state

policies at issue, however, go far beyond the present litigation. It is these larger policies that we must

consider, and not the comparatively small stakes of this litigation.”).

* The court lacks the power to dismiss Defendant’s legal counterclaim for damages. Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 730-31 (1996) (“we have permitted federal courts applying abstention

principles in damages actions to enter a stay, but we have not permitted them to dismiss the action altogether

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file in state court, (2) motion to strike Defendant’s affirmative defenses [DE-18] is DISMISSED AS

MOOT; (3) motion to dismiss Defendant’s counterclaims [DE-20] is DENIED with leave to refile following

the aforementioned ruling; and (4) motion to file an amended pleading [DE-33] is DENIED.

SO ORDERED this the 8 day of brew bar , 2020.

On becl ewes L

RICHARD E. MYERS II

UNITED STATES DISTRICT JUDGE

... federal courts have the power to dismiss or remand cases based on abstention principles only where the

relief being sought is equitable or otherwise discretionary”). While the court has the power to dismiss

Defendant’s equitable counterclaim for unjust enrichment, id., it elects to stay adjudication of that claim,

as well,

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