                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2008

Elite Sportswear v. NY Life Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4870




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Elite Sportswear v. NY Life Ins Co" (2008). 2008 Decisions. Paper 1429.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1429


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-4870


                       ELITE SPORTSWEAR PRODUCTS, INC.,
                                           Appellant

                                            v.

                     NEW YORK LIFE INSURANCE COMPANY


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 05-cv-05181)
                 Magistrate Judge: The Honorable Timothy R. Rice


                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 3, 2008


              Before: BARRY, JORDAN and HARDIMAN, Circuit Judges

                             (Opinion Filed: March 18, 2008)


                                        OPINION


BARRY, Circuit Judge

       Between October 1984 and November 1986, New York Life Insurance Company

(“NYLIC”) issued four life insurance policies to Elite Sportswear Products, Inc. (“Elite”).

On September 30, 2005, Elite filed suit against NYLIC asserting various tort and breach
of contract claims arising from NYLIC’s use of loans secured against the policies’ cash

values and dividends to pay the policies’ premiums. The District Court granted summary

judgment in favor of NYLIC on October 25, 2006, holding (1) that Elite’s tort claims

were barred by Pennsylvania’s two-year statute of limitations and (2) that Elite’s breach

of contract claims failed as a matter of law. The District Court also held that the class

action settlement agreement in Willson v. New York Life Insurance Co., No. 94-127804,

1995 N.Y. Misc. LEXIS 652 (N.Y. Sup. Ct. Nov. 8, 1995), barred Elite’s claims under

the doctrines of release and res judicata. Elite timely appealed.1

       Elite raises a single issue on appeal, namely whether the District Court erred in

concluding that the notice of settlement provided in Willson met the requirements of due

process. We need not reach this issue, however, because, as appellee correctly argues, it

is one of two alternative grounds on which the District Court’s decision was based.

Elite’s failure to challenge the District Court’s conclusions with respect to the timeliness

of its tort claims and the adequacy of its contract claims in its opening brief constitutes a

waiver of these issues on appeal,2 see United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.


   1
    The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
   2
    Elite does not seriously challenge these conclusions even in its reply brief, stating
only the following:
               [NYLIC] argues that [Elite], in its Appellant brief, argued notice but
       failed to discuss the two year statute of limitations for tort claims or argue
       breach of contract. Because the tolling of the statute of limitations in tort
       and breach of contracts [claims] are dependant upon notice and discovery,
       whether or not adequate notice was provided to Elite is a genuine issue of
                                              2
2005) (“It is well settled that an appellant’s failure to identify or argue an issue in his

opening brief constitutes waiver of that issue on appeal”), and we therefore will affirm

because these unappealed aspects of the District Court’s decision represent an adequate

and independent ground for granting summary judgment in favor of NYLIC.




        material fact to a finding of either.
(Reply Br. at 1.) Although it is less than clear, Elite’s argument appears to conflate notice
of the accrual of its claims against NYLIC with notice of the Willson settlement. If this is
the argument, it is without merit.
                                               3
