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In re Silcone Implant Insurance Coverage Litigation9/24/2002
bsent a finding of misrepresentation, the erroneous risk-of-loss instruction had no effect on the jury's verdict and is, therefore, harmless error.
b. Waiver
3M asserted waiver as a defense to the insurers' misrepresentation claim. Specifically, 3M argued that the insurers waived any right to void the policies by continuing to insure 3M after they learned of the alleged misrepresentations. Over the insurers' timely objection, the court instructed the jury that, to establish waiver, 3M had to show that the insurers knew the information on which they based their misrepresentation claim and either "continued to treat the policy as in full force anyway, or continued to insure 3M for additional periods." Based on this instruction, the jury found that the insurers "knowingly waive any prior misrepresentation that 3M may have made by continuing to insure 3M."
Because the jury found that 3M made no material misrepresentations in its applications for insurance, we conclude that the risk-of-loss instruction was harmless error and we do not discuss the insurers' claim that the waiver instruction was also erroneous.
DECISION
The decision by the district court is affirmed in part and reversed in part.
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