Full opinion text
SELYA, Circuit Judge. When Virgil, some twenty centuries ago, wrote in The Aeneid of mankind’s “accurst craving for gold,” he accurately anticipated the timeless appetite undergirding the twin appeals which confront us today. The tarnished tale follows. I. BACKGROUND We limn the contours of the case as reflected in the trial record, resolving occasional conflicts in a manner consistent with the jury’s recension of the evidence. Putnam Resources, Ltd. (Putnam), a Connecticut limited partnership dealing in precious metals, was a vendor to Sammartino, Inc. (SI), a Rhode Island corporation. Under a series of contracts in force between the two, Putnam stored gold at Si’s premises in Cranston, Rhode Island. The gold was made available in daily allotments for Si’s manufacture of fine jewelry. To facilitate this arrangement while providing needed security, a field warehouse was established under the auspices of SLT Warehouse Company (SLT). SLT would receive gold from Putnam at the field warehouse, log it in, and thereafter dole it out to SI. Putnam was to be paid for the metal as and when the manufacturer sold the jewelry which it made from the gold. In mid-1986, Putnam’s insurance broker, Frenkel & Co. (Frenkel), a New York firm, learned that Putnam’s carrier was planning to cancel existing coverage. Frenkel sought a replacement policy in the London market. Its attention soon focused on Lloyd’s of London. Because underwriters at Lloyd’s deal through a select group of intermediaries, Frenkel found it necessary to work cooperatively with J.H. Minet & Co. (Minet), a London brokerage house. In September, Minet managed to assemble a consortium which wrote the desired insurance (Lloyd’s marine policy no. 243440200). Ronald M. Pateman was the lead underwriter. In July 1987, Si’s factory closed to permit the work force to take a summer vacation. The SLT warehouseman, Charles Harrison, subsequently testified that, during this interval, Walter Sammartino (Sam-martino), Si’s principal, sought authorization to remove quantities of gold from the field warehouse far exceeding what Putnam had authorized SLT to release. Harrison testified that he did as Sammartino asked, believing that an exchange would eventually take place to replenish the inventory. When the excess gold had not been replaced by the end of July, Harrison informed his superiors at SLT about the situation. Shortly thereafter, Sammartino notified Putnam that substantial amounts of the vendor’s gold were missing. After inspecting the premises and finding the cupboard virtually empty, Putnam filed claim under the Lloyd’s policy for an estimated loss of $3,900,000. In October, the underwriters paid Putnam $2,000,000 on account, but noted that an investigation of the circumstances and an accounting of Putnam’s inventories were still in progress. Eventually, the underwriters denied the claim outright. Invoking diversity jurisdiction, 28 U.S.C. § 1332(a), Putnam sued on the policy in federal court. A change of venue was granted, transferring the case from the District of Connecticut to the District of Rhode Island. The case was docketed in the transferee district on April 29,1988. Pateman answered the complaint on July 20, 1988, contending that no loss occurred during the policy period because Putnam’s gold had been wrongfully misappropriated well prior to issuance of the Lloyd’s policy. Additionally, Pateman pleaded two affirmative defenses, hypothesizing that, even if a loss transpired while the policy was in force, an agent infidelity exclusion in the policy barred recovery; and that, in any event, material misrepresentations and omissions arising in the course of obtaining the policy negated the coverage. Pateman also counterclaimed for return of the advance payment. On September 8, 1988, Pateman sued Frenkel in Rhode Island’s federal district court, alleging that, during the original negotiations, Frenkel purposely failed to disclose facts material to the underwriters’ proposed assumption of the risk. The two suits were consolidated and the case was tried to a jury. The jury exonerated Pateman from liability to Putnam, finding not only that Putnam was unable to prove an insured loss, but also that Pate-man had proved both of his affirmative defenses. Finally, the jurors found that Frenkel, in procuring the policy, had intentionally concealed material facts. Accordingly, the district court entered judgment for Pateman (1) on the primary complaint {qua defendant), (2) on the counterclaim (in the sum of $2,000,000), and (3) on Pate-man’s separate complaint (in the same sum). The counterclaim defendant, Putnam, and the named defendant in the second suit, Frenkel, both appealed. We deal first with Putnam’s appeal, bifurcating our analysis to consider, initially, its argument that the court below erred in entering judgment on the counterclaim (Part II). Concluding, as we do, that the judgment on the counterclaim was responsive to the jury verdict, we thereafter consider Putnam’s remaining assignments of error (Part III). That exercise completed, we turn last to Frenkel’s appeal (Part IV). In the end (Part V), we affirm the defendant’s verdict in Putnam’s case and the $2,000,000 damage award in favor of the counterclaimant, Pateman. At the same time, we set aside the multimillion dollar verdict against Frenkel, remanding Pate-man’s case against the broker for a new trial. II. THE JUDGMENT ON THE COUNTERCLAIM Putnam hotly disputes the district court’s entry of judgment on the counterclaim, asserting that the court impermissibly exceeded the perimeters of the jury’s responses. In order to place Putnam’s argument into proper perspective, it is essential that we begin by recounting a panoply of critical events. A. The Circumstances Surrounding the Verdict. The district court sent the case to the jury by means of a specially crafted verdict form which, as eventually clarified by the court and inscribed by the jury, we provide in an appendix hereto. The form was a hybrid. It combined questions (e.g., items one, two and three) with declarations (e.g., item four) and also combined statements that seemed like verdicts (e.g., items five and six) with statements that seemed like findings (e.g., item four). The form instructed the jury to determine whether Pateman was liable to Putnam. If not, the jury was to enumerate which of three delineated reasons exonerated Pateman from liability. The form also provided a space for the jury to enter its verdict as between Frenkel and Pateman, specifying the dollar amount of Frenkel’s liability if Pateman prevailed. The form did not contain a similar space for entry of the jury’s verdict on the counterclaim. The omission, of course, was scarcely a bolt from the blue. For one thing, the form was a hybrid, thus putting the parties on notice to expect the unexpected. For another thing, the record shows that the district court discussed the verdict form with counsel on numerous occasions. The court repeatedly solicited counsel’s advice, stressing that it was seeking ways of simplifying the jury’s task. As the day of reckoning dawned, the court apprised counsel of the final design of the verdict form before actually giving it to the jurors. No one, least of all Putnam, objected to the absence of a direct request for a verdict on the counterclaim. All parties must have realized that the counterclaim was being decided. After all, more than once during on-the-record colloquy between court and counsel the judge articulated his view that, if Pateman was not liable to Putnam at all, the necessary implication of such a finding would be to require Putnam to return the $2,000,000 that Pateman had advanced on the insurance claim. Far from voicing any disagreement with, or criticism of, the district court’s assumption, Putnam indicated its assent that, should the jury find Pate-man not liable, it would follow automatically that Pateman would prevail on the counterclaim. And, there was mQre. Notwithstanding the apparent lacuna in the form, the district court, in charging the jury, left no doubt that submission of the Putnam/Pate-man dispute included the counterclaim for return of the advance. The court reminded the jury that, in addition to defending the primary complaint, Pateman was “counterclaim[ing] against plaintiff Putnam for return of the two million dollars it advanced to Putnam.” The court told the jury specifically that, if the jury determined the amount of the covered loss was “less than two million dollars, then you must render a verdict for the defendant for the difference between the loss and two million dollars.” (Emphasis supplied). Putnam did not object either to the final version of the verdict form or to the court’s instructions appertaining thereto. The jury paused during its deliberations to ask whether it could specify more than one reason for finding Pateman not liable to Putnam. After consulting with all counsel, the judge responded that such a hydra-headed finding would be permissible. At the same time, the judge modified the verdict form to make it crystal clear that the jury should not consider the case against Frenkel unless it found that Pateman’s nondisclosure defense had been proven visa-vis Putnam. Once again, Putnam registered no objection. When done deliberating, the jury returned to the courtroom with the completed form. Examination of the sheet revealed that the jury had answered item one (“Do you find defendant Pateman liable to plaintiff Putnam?”) in the negative; indicated, in item four, Putnam’s failure to show a covered loss and, additionally, Pateman’s success in proving both affirmative defenses; and completed items five and six so as to award Pateman $2,000,000 against Frenkel. After polling the jurors at Putnam’s request, without incident, the district court dismissed the panel. At that point the court stated: In accord with the responses of the jury to the questions submitted to them, the Clerk will at this time enter judgment for Pateman and others against Putnam Resources in the amount of two million dollars, interest and costs, and against Frenkel & Company in the amount of two million dollars, interest and costs. It was only then that Putnam’s trial counsel stirred. He argued that entry of judgment on the counterclaim did not necessarily follow from the jury’s verdict. Rather, two interpretations of the verdict form were possible: on the one hand, the jury may in fact have found, as the court assumed, that Pateman was entitled to recover on the counterclaim; on the other hand, however, the jury, while finding Pateman not liable to Putnam, might have wished for equitable reasons to allow Putnam to keep the advance payment. The district court was unimpressed. Final judgment entered on the counterclaim. On appeal, Putnam’s paramount argument is that the counterclaim was never submitted to the jury at all. Secondarily, Putnam argues that, if the counterclaim was submitted, the jury’s responses in respect to it were fatally ambiguous. We consider these asseverations in sequence. B. Was the Counterclaim Adjudicated? The premise supporting Putnam’s contention that the district court failed to submit the counterclaim to the jury — a premise that Putnam fails to state, but that the contention must rest upon — is that a claim can only be submitted by an express reference on a verdict form. On this premise, the instructions that the judge gives are little more than window dressing. That is to say, the court’s instructions about the implications of a finding for the defendant on the plaintiff’s claim, or about the implications of various interrogatory answers for the counterclaim, become meaningless if the court has not provided a separate space on the verdict sheet for the jury to write something like “we find for the defendant on the counterclaim.” We do not think this is the law. In the first place, the architecture of Fed.R.Civ.P. 49 itself undercuts Putnam’s premise. Whereas Fed.R.Civ.P. 49(b) contemplates that written interrogatories and a general verdict will be used in tandem, Fed.R.Civ.P. 49(a) allows the court to submit a case for written findings without any general verdict, or to “use such other method of submitting the issues ... as it deems most appropriate,” and thereupon to enter such judgments) as the findings may dictate. In the second place, it is well established that verdicts must be construed in light of the totality of the surrounding circumstances, including the court’s instructions. See, e.g., Gander v. FMC Corp., 892 F.2d 1373, 1378 (8th Cir.), cert. denied, — U.S. —, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990); Klein v. Sears Roebuck and Co., 773 F.2d 1421, 1427 (4th Cir.1985); Wright v. Kroeger Corp., 422 F.2d 176, 178 (5th Cir.1970); McVey v. Phillips Petroleum Co., 288 F.2d 53, 59 (5th Cir.1961). Thus, Putnam’s premise— that a claim can only be submitted to a jury by denomination as such in haec verba on the verdict sheet — not only ignores the fact that the, Civil Rules themselves provide a vehicle for disposition of cases without any such express reference, but also ignores the importance of the trial court’s instructions and the attendant circumstances. In this case, the surrounding circumstances are dispositive. While the verdict form did not provide a separate question about the counterclaim, the court’s instructions mentioned the counterclaim several times and explained in considerable detail how the jury’s answers to the special questions would be interpreted in respect to the counterclaim. Moreover, the record shows beyond a shadow of a doubt that Putnam understood and accepted a case concept under which a finding for Pateman on the primary complaint would compel a finding against Putnam on the counterclaim. For us to accept Putnam’s hypothesis that the counterclaim was never submitted to the jury, we would have to sever the instructions from the verdict form, thereby exalting ritual at the expense of Substance, and close our eyes to Putnam’s knowing acquiescence in the case concept as fashioned by the court below. Courts ought not to play such zero-sum games or allow disappointed suitors to' do so. Cf. Parks v. Turner, 53 U.S. (12 How.) 39, 46, 13 L.Ed. 883 (1851) (sustaining a verdict which, while technically flawed, was clear enough on its face to convey the intent of the jury); Roach v. Hulings, 41 U.S. (16 Pet.) 319, 321, 10 L.Ed. 979 (1842) (refusing to overturn a jury verdict which, while finding for the plaintiff, failed to address explicitly the defendant’s affirmative defenses, the Court observing that although “this verdict is not technically responsive to the several pleas, it virtually answers and negatives them all”). The counterclaim was submitted to the jury. C. Were the Responses Ambiguous? That the counterclaim was submitted to the jury does not, of course, mean that it was necessarily resolved by the jury in the manner described by the court below. Reduced to bare essence, Putnam’s remaining argument is that, in order for a judgment to enter, the jury’s verdict must be certain and unambiguous in its import — and that, as to the instant counterclaim, this threshold was never crossed. Though we agree that, in many circumstances, clarity and lack of ambiguity are prerequisites to the entry of judgment upon jury findings, but cf. Fed.R.Civ.P. 49(a) (empowering trial judge to make findings on omitted issues of fact), we think that this case passes muster. Here, the record is unclear as to whether the case was given to the jury under Rule 49(a) or 49(b). In colloquy, the district court referred to the verdict form as containing “interrogatories.” Although recourse to such terminology is not disposi-tive, see Reorganized Church of Jesus Christ of Latter Day Saints v. U.S. Gypsum Co., 882 F.2d 335, 338 (8th Cir.1989), the court’s language suggests that it had Rule 49(b) in mind. Furthermore, the court analyzed the verdict under Rule 49(b) in deciding certain post-trial motions. These facts, taken together with the jury instructions and the kinds of responses sought by the verdict form, indicate that at least some of the claims were submitted under Rule 49(b). See, e.g., Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1520 (6th Cir.1990) (applying similar criteria to determine the kind of verdict sought); see also Scott v. Isbrandtsen Co., 327 F.2d 113, 119 (4th Cir.1964). But, simply because Rule 49(b) was used to resolve the primary complaint does not necessarily mean that the counterclaim was so governed. To the contrary, having established beyond cavil that the counterclaim was submitted to the jury, see supra Part 11(B), the fact that there was no space provided on the form for the entry of a general verdict on the counterclaim argues persuasively that the counterclaim should be considered under Rule 49(a). See Simien v. S.S. Kresge Co., 566 F.2d 551, 556 (5th Cir.1978) (where the jury has not been given an appropriate form for a general verdict, “the submission must be judged under the standard of Rule 49(a)”); see also Scott, 327 F.2d at 119. Nor is such a hybrid submission prohibited. After all, a district court has wide discretion in constructing and utilizing verdict forms. See, e.g., Floyd v. Laws, 929 F.2d 1390, 1395 (9th Cir.1991); Portage II, 899 F.2d at 1520; Reorganized Church, 882 F.2d at 338; Allen Organ Co. v. Kimball Int'l, Inc., 839 F.2d 1556, 1561 (Fed.Cir.), cert. denied, 488 U.S. 850, 109 S.Ct. 132, 102 L.Ed.2d 104 (1988); Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521, 527-28 (5th Cir.1987); Klein, 773 F.2d at 1426-27; Kazan v. Wolinski, 721 F.2d 911, 915 (3d Cir.1983); see also Fed.R.Civ.P. 49(a) (court may use such methods of submitting issues “as it deems most appropriate”). In the exercise of this discretion, district courts may mix and match kinds of verdicts. See, e.g., Loffland Bros. Co. v. Roberts, 386 F.2d 540, 546 (5th Cir.1967) (upholding the use of specific interrogatories concerning one party’s claim and general questions concerning another party’s claim), cert. denied, 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830 (1968); Clegg v. Hardware Mut. Cas. Co., 264 F.2d 152, 156 (5th Cir.1959) (a jury verdict may be “on a general charge or by special questions, or a blend of both under [Fed.R.Civ.P.] 49”). In this case, the district court may have feared that requiring a general verdict on the counterclaim would overcomplicate matters. The case concept accepted by all parties dictated that a finding for Pateman on either or both of its affirmative defenses a fortiori compelled a return of the money advanced. Additional questions beyond those needed under the case concept might have served to encumber the real issues and make the jury’s task needlessly complex. Whatever the district court’s actual reasons, it is at least arguable, perhaps likely, that the court’s approach saved the jury time and spared possible confusion in an already labyrinthine case. The court, therefore, did not misuse its broad discretion in employing a hybrid verdict form. To be sure, the crafting of so unorthodox a procedure makes it desirable that a reviewing tribunal afford heightened scrutiny to what ultimately transpired below. We do so here in order to ensure both the fairness of the procedure and the definiteness of the jury’s views on the counterclaim. As to the former, there is no room for doubt. Putnam knew about, and acquiesced willingly in, the lower court’s approach. It sat silent when it learned of the verdict form’s shape and when it heard the instructions under which the court submitted the counterclaim to the jury. Silence after instructions, including instructions on the form of the verdict to be returned by the jury, typically constitutes a waiver of any objections. See Anderson v. Cryovac, Inc., 862 F.2d 910, 918 (1st Cir.1988) (“If a slip has been made, the parties detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial when matters turn out not to their liking.”). The short of it is that a party cannot be permitted to complain about invited errors. Here, Putnam forfeited any right to gripe about a lack of procedural orthodoxy. To hold otherwise “would place a premium on agreeable acquiescence to perceivable error as a weapon of appellate advocacy.” Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir.1984). The matter of certainty must also be resolved against Putnam. A jury need not use any particular language in rendering its verdict. “Any words which clearly convey the meaning and intention of the jury are sufficient.” Faudree v. Iron City Sand & Gravel Co., 315 F.2d 647, 649-50 (3d Cir.1963). In this instance, especially given the tenor of the charge and the universally accepted case concept, the findings on item four required the entry of a judgment in Pateman’s favor on the counterclaim. Unlike the cases cited by Putnam which have found ambiguity in jury verdicts, see, e.g., Russell v. Place, 94 U.S. 606, 24 L.Ed. 214 (1876), there is no plausible theory here, legal or equitable, which could ground an assertion that the jury findings were ambiguous. The court charged, without objection, that a finding of intentional nondisclosure would constitute grounds sufficient for Pateman to prevail on the counterclaim. The jury so found. For our part, “[w]e must assume that the jury listened to and understood the court’s entire charge.” Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 592 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). What is more, our conclusion that the court, with the parties’ acquiescence, submitted the counterclaim under Rule 49(a), not Rule 49(b), albeit by implication, dispels any lingering questions about ambiguity. In the Rule 49(a) context, a failure to object to omissions in interrogatories constitutes a waiver of jury trial on those issues. See, e.g., Pielet v. Pielet, 686 F.2d 1210, 1218 (7th Cir.1982) (“[I]f the trial court ‘omits any issue of fact raised by the pleadings or by the evidence’ ... each party waives the right to a jury trial of the omitted issue unless he demands its submission before the jury retires.”) (quoting Rule 49(a)), cert. denied, 459 U.S. 1107, 103 S.Ct. 733, 74 L.Ed.2d 957 (1983); Cote v. Estate of Butler, 518 F.2d 157, 160 (2d Cir.1975) (same). This is especially true in the instant case where Putnam waited until after the jury had been polled and dismissed to inform the court about the supposed deficiency in the verdict form, and even then, did not request, as it might have done, that the jury be reconvened. Reassembly was a distinct possibility, see Summers v. United States, 11 F.2d 583, 586 (4th Cir.) (it is the settled rule that the jury “may remain undischarged ... though discharge may have been spoken by the court, if ... it remains an undispersed unit, within the control of the court”), cert. denied, 271 U.S. 681, 46 S.Ct. 632, 70 L.Ed. 1149 (1926); see also Brown v. Gunter, 562 F.2d 122, 124-25 (1st Cir.1977), and Putnam’s failure to make such a request can be seen as a second waiver. In situations where litigants had far less notice of a trial court’s intention to act in conceivably erroneous ways, we have ruled that an adversely affected party, having failed to take prompt corrective action, must forever hold its tongue. See, e.g., United States v. DiPietro, 936 F.2d 6, 11-12 (1st Cir.1991); Reilly v. United States, 863 F.2d 149, 160-61 (1st Cir.1988). To recapitulate, we deem the district court to have made a hybrid submission here, submitting the primary complaint and Pateman’s complaint against Frenkel to the jury under Rule 49(b), but submitting the counterclaim to the jury under the aegis of Rule 49(a). So viewed, the court, given the parties’ acquiescence and the jury’s specific findings, properly entered judgment for Pateman on the counterclaim. In this matter, as in Roach v. Hulings, should the judgment be arrested on the hypertechnical basis urged by the appellant, “this would be done neither from a necessity to guard the merits of the controversy, nor from the principles of sound inductive reasoning; but solely in obedience to an artificial and technical rule.” 41 U.S. at 321. Like the Roach Court, we find it both unnecessary and unwise to follow so petrified an approach. III. PUTNAM’S OTHER ASSIGNMENTS OF ERROR Putnam marshals a host of other claimed errors. We treat its sufficiency-of-the-evidence claim in extenso, before dealing summarily with the remainder of its arguments. A. Sufficiency of the Evidence. Putnam assails the evidence as insufficient to sustain the verdict in Pate-man’s favor on any basis. Principles of judicial restraint counsel, however, that if determination of an issue effectively disposes of an appeal, the appellate court should resolve the case on that basis without reaching other presented issues. See, e.g., Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788, 795-96 (7th Cir.1989); Wilken v. International Harvester Co., 701 F.2d 730, 733 (8th Cir.1983); Howard v. Gonzales, 658 F.2d 352, 358 (5th Cir.Unit A 1981). Because our review of the record convinces us that the verdict is fully sustainable on the ground of nondisclosure, we need not consider whether the evidence was also sufficient in respect to agent infidelity and/or nonoccurrence of loss. The nondisclosure defense arose out of Pateman’s allegation that the underwriters were never advised of two episodes occurring before the Lloyd’s policy was placed. Pateman asserted that knowledge of these episodes would have altered his decision to cover the risk. Both incidents occurred at customer-controlled sites where, as in its transactions with SI, the dealer stored precious metals. The first vignette involved Putnam’s predecessor in interest, Fundamental Resources. In March 1985, Fundamental asked Frenkel to report an alleged conversion of more than $1,000,000 in silver from the premises of a customer, Refi-nemet International Co. Thereafter, Fundamental took legal action against Refi-nemet. The insurance claim and the Refi-nemet suit were still unresolved when the Lloyd’s policy was written. At one point, it appeared that Refinemet would redeem the loss. As late as March 1987, however, Putnam asked Frenkel to “reiterate our demand” that the insurer pay the claim. Eventually, Refinemet made good and the insurance claim abated. The second episode involved a loss at Jackson Precious Metals, reported by Putnam to Frenkel in April 1986. Again, Putnam launched a third-party action, suing Jackson’s owner and the field warehouseman, SLT. The dispute was pending when the Lloyd’s policy took effect. Later on, SLT and Jackson’s owner settled with Putnam; and despite a decision to deny coverage, Putnam’s insurer reimbursed Putnam’s sue-and-labor expenses incident to the claim. The record is clear that Pateman was not informed of either episode. At trial, Putnam took the position that, having effected a third-party recovery in each instance, the episodes did not involve losses for which insurance was claimed, and were, therefore, immaterial to an assessment of the risk to be assumed by Pateman. Putnam also asserted that proof of intent to deceive was lacking. It moved, successively, for a directed verdict, judgment n.o.v., and a new trial. It now urges that the court below erred in failing to grant these motions. Since this assignment of error challenges the sufficiency and weight of the proof, we pause to restate the principles which govern our review. As to motions for judgment as a matter of law: The yardstick by which we take the measure of a refusal to grant a directed verdict is the same as that which we apply to the denial of a judgment n.o.v. In conducting that exercise, we may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence. Rather, we must examine the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the non-movant_ A judgment notwithstanding the verdict should be granted only when the evidence, viewed from this perspective, is such that reasonable persons could reach but one conclusion. Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987) (citations omitted). As to motions for new trials, appellate review is also severely circumscribed: Denial of a motion for new trial will be reversed only for an abuse of discretion, and the discretion afforded the trial judge is limited from the outset. A trial judge may not grant a motion for a new trial merely because he or she might have reached a conclusion contrary to that of the jurors, rather, the trial judge may set aside a jury’s verdict only if he or she believes that the outcome is against the clear weight of the evidence such that upholding the verdict will result in a miscarriage of justice. Conway v. Electro Switch Corp., 825 F.2d 593, 598-99 (1st Cir.1987) (citations omitted). Pateman’s case survives scrutiny under these standards by a comfortable margin. It is black letter law that fraud may be established by inference from circumstantial facts. As the Court wrote almost half a century ago: [W]hile objective facts may be proved directly, the state of a man’s mind must be inferred from the things he says or does.... [Cjourts and juries every day pass upon knowledge, belief and intent— the state of men’s minds — having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. American Communications Ass’n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925 (1950); see also F. Harper, F. James, Jr., & O. Gray, The Law of Torts, § 7.10, at 451 n. 24 (2d ed. 1986) (proof of fraudulent intent may be established by circumstantial evidence). The state of a person’s mind must be inferred primarily from what he says and what he does. In addition, “[s]uch an inference may come from proof of the objective falsity itself, from proof of a motive to lie, and from other facts tending to show that the defendant really knew the things he claimed not to know.” United States v. Sweig, 441 F.2d 114, 117 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971). Here, the deception was adequately proven. The incidents involved matters of likely interest to an insurer poised to propose a coverage package. There was evidence that Frenkel’s correspondence and internal memoranda referred to the incidents as “losses” and “claims.” There was also evidence from which a factfinder could infer that the deception was both material and studied. The jury heard testimony that Pateman believed the incidents to be critical to a reasoned consideration of the underwriting risk; that both Putnam and Frenkel were aware of the ongoing legal actions referable to these incidents; that the insurer involved would soon cancel its policy; that difficulties were being encountered in securing replacement coverage; and that the underwriters might be worried about applicants such as Putnam “from a morality point of view.” The jury also heard that Frenkel, acting to Putnam’s be-hoof, was determined to place Putnam in the ocean marine market even though Putnam had no international sendings, did not actually use the foreign sites mentioned in Frenkel’s correspondence, and had already experienced an earlier policy cancellation because it was not an authentic ocean marine risk. This, and other, evidence, coupled with the lack of any credible reason for nondisclosure, was enough to allow reasonable factfinders to infer the scienter required to establish concealment with intent to deceive. The law is not so struthious as to require that a jury ignore inferences which it reasonably finds are obvious. United States v. Ingraham, 832 F.2d 229, 240 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). Putnam has another string to its bow. It contends that, even if intent to deceive can be gleaned from the evidence, causation cannot. This contention depends on the somewhat curious notion that, even if information concerning the Refinemet and Jackson claims had been provided to Minet, the latter might not have relayed the information to Pateman. Indeed, Mi-net’s spokesman refused to say during the trial whether he would have told Pateman of Putnam’s prior claims had he been apprised of them. So, Putnam’s thesis runs, failure to disclose could not have been a legal cause of Pateman’s injury. We disagree. “Application of the legal cause standard to the circumstances of a particular case is a function ordinarily performed by, and peculiarly within the competence of, the factfinder.” Swift v. United States, 866 F.2d 507, 510 (1st Cir.1989); see also Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir.1990) (questions of causation “are normally grist for the jury’s mill”); Marshall v. Perez Arzuaga, 828 F.2d 845, 850-51 & n. 8 (1st Cir.1987) (similar), cert. denied, 484 U.S. 1065, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988); Springer v. Seaman, 821 F.2d 871, 876 (1st Cir.1987) (similar); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts 321 (5th ed. 1984) (“[I]t may properly be said that ‘proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.’ ”) (citation and footnotes omitted). When, as here, the existence of proximate cause turns on an issue of superseding causation (the likely conduct of Minet), the jury’s role may be especially significant. See, e.g., Prince v. Leesona Corp., 720 F.2d 1166, 1169 (10th Cir.1983). Our analysis of superseding cause is guided by several principles. First, foreseeability often affects whether an intervening act relieves an actor from liability for his antecedent wrongdoing. Foreseeability is usually a jury question. See Springer, 821 F.2d at 877; see also Restatement (Second) of Torts, § 453 comment b (1965) (stating that the question should be left to the jury whenever “there is room for reasonable difference of opinion”). Second, the difficulties which inevitably arise when proof of causation hinges upon counterfactual reasoning emphasize the importance of inferences and common sense in the factfinding process. As one text states: The fact of causation is incapable of mathematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise .... Circumstantial evidence, expert testimony, or common knowledge may provide a basis from which the causal sequence may be inferred. Prosser & Keeton, supra, at 269-70 (footnotes omitted). Third, when the evidence is in conflict, the determination of what the intervening actor actually did is almost always for the jury. See Restatement (Second) of Torts, § 453, comment c. These convergent principles argue persuasively that, in cases where superseding cause is raised as a defense and there is some basis for disagreement as to the facts, the jury should ordinarily resolve the question of what a third party would likely have done had the defendant refrained from committing the original wrong. If the rule were otherwise, every similarly situated suitor would be left in an epistemological quandary, required, in effect, to do the impossible, that is, to prove a negative by direct evidence. Against this backdrop, we think that causation was adequately proved. There was evidence that Putnam, through Frenkel, sought to anticipate the inquiries of the underwriters in its provision of information to Minet; that Frenkel assumed the information would be used in negotiating for coverage; that Minet viewed the situation as one requiring all parties to negotiate in utmost good faith; and that Minet’s man took all the correspondence and documentation supplied by Frenkel to his meeting with Pateman. From this evidence, a jury could reasonably infer that Minet would have forthrightly disclosed any meaningful information provided to it regarding prior claims. B. The Intent Requirement. The district court erred, Putnam says, in charging that, so long as the failure to disclose material matters was intentional, then Pateman could prevail on the nondisclosure defense and counterclaim. In Putnam’s view, rather than merely finding an intentional failure to disclose, the jury should have been required to find that disclosure was omitted by reason of an actual intent to deceive. Put another way, Putnam asserts that the court failed to make it clear that, for Pateman to prevail, the evidence had to establish that Frenkel not only kept matters in the bosom of the lodge, but did so with the purpose of deceiving the underwriters. Assuming for argument’s sake that intent to deceive was a necessary element of the case, we find Putnam’s self-serving characterization of the instructions to be unwarranted: taken in its totality, the court’s charge adequately conveyed an intent requirement. The district court charged in so many words that Pateman, to prevail on the affirmative defense of intentional failure to disclose and on the counterclaim, had to prove that Putnam, directly or through its agent, “withheld or failed to disclose fully ... material facts with intent to deceive Defendant Pateman.” Record Appendix (R.A.) 2471a. In light of this explicit instruction, Putnam’s assignment of error seems rather puzzling. Having studied Putnam’s briefs, the gravamen of its complaint can only be that the district court should have married the phrase “to deceive” to the word “intent” each time the latter word was uttered. But, a litigant “has no right to put words in a judge’s mouth.” United States v. McGill (Robert), 953 F.2d 10, 12 (1st Cir.1992). So long as the charge, viewed as a whole, adequately limns the controlling issues, and does so without confusing or misdirecting the jury, the trial judge enjoys considerable discretion in the choice of idiom. He or she need not parrot the exact language that a litigant prefers. See, e.g., id.; Brown v. Trustees of Boston University, 891 F.2d 337, 354 (1st Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990); United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990); Brown v. Freedman Baking Co., 810 F.2d 6, 9-10 (1st Cir.1987). Reading the trial court’s instructions in their entirety, we are constrained to dismiss Putnam’s jeremiad as comprising more cry than wool. The instructions made clear, on more than one occasion, that the intent at issue was an intent to deceive. That the district court did not chant the talisman “to deceive” every time the word “intent” or some varietal thereof was mentioned neither invalidated nor undermined the instructions. See Veranda Beach Club Ltd. Partnership v. Western Surety Co., 936 F.2d 1364, 1384 (1st Cir.1991) (“[T]he presider is not obligated to tailor the instructions to suit a party’s preference or fit the idosyncratic facts of the particular case.”); United States v. Cintolo, 818 F.2d 980, 1004 (1st Cir.) (“Because the district court’s charge adequately covered the subject matter of what the defendant suggested ... no error can successfully be assigned to the ‘trial court’s failure to use the precise language that defendant ... would have preferred.’ ”) (citation omitted), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987). It would serve no useful purpose to linger. Even if the instructions on intent to deceive could have been somewhat more precise in linking intent to deception, we do not think it possible that, in light of the charge as a whole, so subtle a nuance loosened the jury’s grasp of the governing law or improperly influenced its deliberations. C. Failure to Return Premiums. Invoking Fed.R.App.P. 28(i) in a cryptic single-sentence footnote in its appellate brief, Putnam seeks to “adopt Frenkel’s discussion with respect to [Pate-man’s] failure to return the insurance premiums.” A number of obstacles block the path of this initiative. We mention two of them. While Frenkel argued below that the underwriters wrongly refused to return premiums, it discarded the argument on appeal. We have had several occasions recently to remind counsel that there are limits to the ability of parties to adopt other parties’ arguments by reference. See, e.g., United States v. Isabel, 945 F.2d 1193, 1200 (1st Cir.1991); United States v. David, 940 F.2d 722, 737 (1st Cir.), petition for cert. denied, — U.S. —, 112 S.Ct. 908, 116 L.Ed.2d 809 (1991). One obvious limit to an appellant’s power to hitch its wagon to another appellant’s star is that the adopter cannot adopt an argument that the adoptee has not advanced on appeal. Because Frenkel made no argument on appeal concerning the effect of the underwriters’ failure to refund premiums, Putnam cannot legitimately peddle such wares through the medium of Rule 28(i). The second obstacle in Putnam’s path is equally insurmountable. Frenkel does make a related argument, trying to convince us that Pateman’s continued collection of premiums after deciding to deny coverage was tantamount to a waiver of all rights of rescission. But, Putnam’s attempted adoption of this asseveration is in the nature of an epiphany, Putnam not having advanced the asseveration before the district court. Nothing in Rule 28(i) displaces the requirement that, in order to raise a particular point on appeal, an appellant must first have raised the point below. See, e.g., Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987). For the reasons stated, we reject Putnam’s appeal in all its ramifications. IV. FRENKEL’S APPEAL Pateman’s hodgepodge complaint against Frenkel originally asserted a bevy of legal theories. Some were abandoned along the way. At trial, the district court directed a verdict for Frenkel on Pateman’s negligence claims, including the claim of negligent misrepresentation. When the dust settled, Pateman’s suit against Frenkel went to the jury solely on a tort claim charging intentional nondisclosure. The jury awarded Pateman $2,000,000. Before us, Frenkel clusters its heaviest artillery in support of its contentions that (1) the evidence was too exiguous to take the tort claim to the jury; and (2) in the alternative, the jury was improperly instructed on the quantum of proof necessary to sustain the claim. We believe that our previous analysis fully disposes of the first of these challenges. We limit the ensuing commentary, therefore, to Frenkel’s alternative contention. A. The Problem. The stage is easily set. Over Frenkel’s objection, the district court told the jury to use a preponderance of the evidence standard in determining whether Frenkel was guilty of intentional nondisclosure. Frenk-el urges that, as between Frenkel and Pate-man, the tort had to be proven by clear and convincing evidence. The problem has two aspects. The first aspect centers around choice of law. Although the district court seems never to have made an unequivocal choice as to which state’s law governed this issue, Pateman intimates that the court looked to the substantive law of Rhode Island, see, e.g., Ostalkiewicz v. Guardian Alarm, 520 A.2d 563, 569 (R.I.1987), in deciding that the preponderance standard applied. Frenkel contends this was error. It asserts that the court should have derived the quantum of proof from New York law. Frenkel says this error makes a decisive difference: it reads the caselaw, e.g., Leucadia, Inc. v. Reliance Ins. Co., 864 F.2d 964, 971 (2d Cir.1988), cert. denied, 490 U.S. 1107, 109 S.Ct. 3160, 104 L.Ed.2d 1023 (1989), as requiring, in New York, that intent to deceive be proved by clear and convincing evidence. And, the jury in this case was not so instructed. Pateman’s rejoinder frames a second aspect of the problem. He asserts that, under the New York cases, if the insurer makes inquiries and the insured conceals material facts, proof of deceit is altogether unnecessary. Thus, it is Pateman’s position that, even if New York law supplied the appropriate rule of decision, the district court properly abjured an instruction that intent to deceive had to be proven by clear and convincing evidence. Having stated the problem, we next shine the light of our understanding on the conflict as to which jurisdiction’s substantive law should be embraced. We then attempt to chart the contours of that law. B. What State’s Law Governs? 1. The Methodology. In diversity cases, the federal courts look to the choice-of-law rules of the forum state, here, Rhode Island. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir.1991). In tort cases Rhode Island uses an interest-weighing approach to choice-of-law issues. See Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1351 (R.I.1986); Brown v. Church of the Holy Name, 105 R.I. 322, 252 A.2d 176, 178 (1969); Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917, 923, cert. dismissed, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968). The factors to be balanced include (a) the place of injury; (b) the place where the conduct causing the injury occurred; (c) the place that the parties call home (e.g., their domicile, residence, nationality, place of incorporation, place of business and the like); and (d) the place where the relationship between the parties was centered. See, e.g., Brown, 252 A.2d at 179. When this basic list of factors proves inconclusive, an inquiring court should make a selection from amongst the available candidates with an eye on such prudential principles as predictability of results, maintenance of interstate and international order, simplification of the judicial task, advancement of the forum’s governmental interests, and application of the better rule of law. See Woodward, 243 A.2d at 923; see also Restatement (Second) Conflict of Laws § 6 (1971). In applying Rhode Island’s choice-of-law rules to the case at hand, it is important to understand the principle of depecage. In legal parlance, depecage erects the framework under which different issues in a single case, arising out of a common nucleus of operative facts, may be decided according to the substantive law of different states. See Hutner v. Greene, 734 F.2d 896, 901 (2d Cir.1984); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 923 n. 5 (3d Cir.1979); E. Scoles & P. Hay, Conflict of Laws 40, 75 (1984); R. Leflar, American Conflicts Law 221 (3d ed. 1977). Although the Rhode Island Supreme Court has yet to pledge express allegiance to the principle of depecage, the court’s decisions make it clear that Rhode Island, like most other jurisdictions, adheres to the principle in the tort context. In Woodward, for example, the court held that Massachusetts law governed some issues, while Rhode Island law governed others. See Woodward, 243 A.2d at 923-24. To like effect, in Busby v. Perini Corp., 110 R.I. 49, 290 A.2d 210 (1972), the court stated that it intended to “pass on the rights and liabilities of the parties with respect to an issue in tort in accordance with the local law of the state which, with respect to that issue, had the most significant relationship to the occurrence and the parties.” Id. 290 A.2d at 212 (emphasis supplied). Moreover, the very section of the Restatement which the state supreme court chose to follow in Busby endorses the use of depecage in resolving conflicts in tort cases. See Restatement (Second) Conflict of Laws § 145; see also id., comment on subsection (l)(d) (“Each issue is to receive separate consideration if it is one which would be resolved differently under the local law rule of two or more of the potentially interested states.”). Therefore, as a matter of methodology, we must apply Rhode Island’s interest-weighing approach to the specific issue raised by Frenkel on appeal. 2. Scope of Application. Frenkel’s ground of appeal does not affect Putnam’s appeal for at least four reasons. i. The law is clear that consolidated suits retain their separate identities in a federal court. See General Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20, 24 (1st Cir.1991) (listing other precedents). Thus, even though the two underlying cases (Putnam v. Pateman; Pateman v. Frenkel) were tried together, they evoked different choice-of-law rules. Since Putnam’s suit was initiated in Connecticut and transferred to Rhode Island, Connecticut’s choice-of-law rules, rather than Rhode Island’s, applied therein. See Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 1280, 108 L.Ed.2d 443 (1990) (transferee court must “apply the law of the transferor court, regardless of who initiates the transfer”). ii. The issues, though superficially similar, were actually different. As between Putnam and Pateman, the parties’ claims were ex contractu, pitting an insured against its insurer, and vice versa. As between Pateman and Frenkel, the cause of action was ex delicto, pitting an insurer against a putative tortfeasor (the insured’s broker). Moreover, a jury could conceivably find that the relevant knowledge possessed by Putnam and Frenkel, respectively, merited different rankings on a fact/opinion continuum. These distinctions are significant for choice-of-law purposes, compare, e.g., A.C. Beals Co. v. Rhode Island Hospital, 110 R.I. 275, 292 A.2d 865, 871 (1972) (outlining Rhode Island’s choice-of-law rules for contract cases) with, e.g., Brown, 252 A.2d at 178 (outlining Rhode Island’s choice-of-law rules for tort cases), for purposes of applying the principle of depecage, and for purposes of determining which component of the chosen state’s substantive law should govern, see infra Part IV(C). iii. Putnam conceded below that a preponderance standard should be used. Indeed, its trial counsel cursorily dismissed New York as a choice-of-law candidate, describing that state as “just a pismire” in respect to the genesis of the litigation. R.A. 2524a. A party is, of course, “bound by a plausible choice of law which it successfully urged the trial court to follow.” Borden, 935 F.2d at 375. iv. Putnam never argued on appeal for a clear and convincing standard, thereby forfeiting the contest. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir.1990) (points neither briefed nor argued are waived); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (same), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). For these reasons, then, the discussion that follows pertains solely to the choice of law that should have been made, and the substantive rule of law that should have been applied, with respect to Pateman’s nondisclosure claim against Frenkel. 3. Standard of Review. The court of appeals affords plenary review to a trial court’s choice-of-law determinations. See 1 S. Childress & M. Davis, Standards of Review § 4.13 (1986); see, e.g., Quintero v. Klaveness Ship Lines, 914 F.2d 717, 722 n. 3 (5th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1322, 113 L.Ed.2d 255 (1991); Kukias v. Chandris Lines, Inc., 839 F.2d 860, 861 (1st Cir.1988). In this instance, we assume, as the parties suggest, that the court below chose to apply Rhode Island jurisprudence — although, as we previously remarked, see supra note 16, it is problematic whether the court actually made a state-specific choice of law on the issue in question. 4. Implementing the Methodology. Prospecting in the record for the nuggets of information valued by the forum’s law is tedious work. As between Patentan and Frenkel, the place of injury was London; that is where Frenkel’s misrepresentations were passed on by Minet, where the policy was authorized, where Putnam’s claim was lodged, and where the advance payment originated. The conduct giving rise to the particular injury of which Patentan complained in the suit against Frenkel occurred principally in New York. Frenkel’s solicitation for insurance, its representations concerning Putnam, and the form on which the insurance was written all emanated from New York. The parties’ places of business were (and are) in London (Pate-man) and New York (Frenkel), respectively. The communications that trailed in the wake of the claim, when Pateman sought an explanation for Frenkel’s withholding of information anent the insured’s prior loss history, were mainly between London and New York. The policy itself specified that New York’s statute of limitations would be employed to resolve claims. The policy also contemplated Putnam’s continued use of Frenkel, a New York based concern, as its agent for all communications and transactions with the underwriters. Whereas New York’s connection with the Pateman/Frenkel dispute is less than pervasive, it is sturdier than Rhode Island’s connection. Other than serving as the forum, Rhode Island had only two fragile links to the dispute: it was the place where the supposed theft occurred and where an insured site was situated. As to the first link, the place of the particular injury complained of in Pateman’s suit against Frenk-el was London, not Rhode Island. As to the second link, while it is true that, during negotiations for the policy, coverage was obtained for a site in Cranston, Rhode Island, that location was more incidental than integral to the risk; as issued, the insurance policy covered multiple sites in each of five states (including three locations in New York), single sites in three other states (including the Cranston facility), and sites in three foreign countries (including one in England). Thus, Rhode Island’s grip on the Pateman/Frenkel dispute was very weak. To the extent that uncertainty might remain as to whether Rhode Island’s evanescent contacts with the dispute were enough to warrant bypassing New York’s standard of proof, the secondary guidelines limned in Woodward, 243 A.2d at 923, erase any lingering doubt. The application of New York law would be far more predictable to the parties than would application of the law of whatever state hosted the suit or had the closest connection with the stolen metal. Interstate order, while not strongly implicated one way or the other here, would best be maintained by applying New York law inasmuch as the defendant is a New York firm, neither party maintains a place of business in Rhode Island, some policy provisions specifically refer to New York law, and “the negotiations for coverage pirouetted around New York.” Albany Ins. Co. v. Wisniewski, 579 F.Supp. 1004, 1013 (D.R.I.1984). We believe it self-evident that New York possesses a much stronger interest than Rhode Island in the question of how a New York broker negotiates insurance for a Connecticut partnership in the London market. The remaining Woodward guidelines are neutral: it is a standoff as to the “better” rule of law; it would be a mug’s game to argue that using either standard would unduly complicate the judicial task; and Rhode Island’s interests would not be advanced in any discernible way by applying its substantive law, rather than New York’s, to Pateman’s claim against Frenk-el. We are also constrained to remark that Pateman, arguing here for the application of Rhode Island’s substantive rule, does so with the institutional equivalent of a forked tongue. In the lower court, Pateman laced his submissions with citations to New York caselaw. On several issues, many of which are now academic, Pateman insisted that New York was the place most solidly linked to the claims asserted. See, e.g., R.A. 2497a (Pateman’s counsel states that “the contract and the contacts both involve [New York] law”); R.A. 2500a (arguing that, on the issue of bad faith, the district court “should apply the law of New York, because that’s where the conduct which is complained of occurred”). Although Pate-man did not make this precise contention regarding the deceit claim (he appears to have taken no choice-of-law position on that claim, leaving Putnam and Frenkel to duke it out in the district court on the arguably related contract-law issue of intentional nondisclosure), the fact that he used New York law and lobbied vigorously for its application on other issues, some less directly connected to New York than the issue of deceit vel non, comprises a fissilin-gual factor bearing to some degree upon our determination in this case. We have said enough. On this scumbled record, as between the two potentially interested states, we think that New York had the more significant relationship to the Pateman/Frenkel dispute and to the affected parties. In the absence of any substantial, legitimate interest justifying the application of Rhode Island’s substantive law to this claim, we are of the opinion that a Rhode Island court, mulling the Brown and Woodward criteria, would handle the quantum of proof issue by resort to New York law. It follows, therefore, that the district court should have done the same. C. What Does New York Law Provide? We move next to the question of what New York law actually provides. We start this section of our analysis from the premise that, in general, under New York law, a cause of action in tort, predicated on an intentional, material misrepresentation, known by the defendant to be false when made and relied on by the plaintiff to his detriment, is akin to a claim of intentional fraud, Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 264, 377 N.E.2d 713, 718 (1978), wherein the tort must be proved by clear and convincing evidence. See id.; see also Leucadia, 864 F.2d at 971; Ajax Hardware Mfg. Corp. v. Industrial Plants Corp., 569 F.2d 181, 186 (2d Cir.1977); Van Alen v. Dominick & Dominick, Inc., 441 F.Supp. 389, 402-03 (S.D.N.Y.1976), aff'd, 560 F.2d 547 (2d Cir.1977); Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 330 N.Y.S.2d 33, 37, 280 N.E.2d 867, 871 (1972); Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 803, 250 N.E.2d 214, 218 (1969); Wayne County Vinegar & Cider Corp. v. Schorr’s Famous Pickled Prods., Inc., 118 Misc.2d 52, 460 N.Y.S.2d 209, 217 & nn. 22-23 (N.Y.Civ.Ct.1983); 60 N.Y.Jur.2d, Fraud and Deceit § 236, at 799. Pateman does not seriously dispute any part of this generality. Rather, he contends that, although the verdict below was returned on a theory that Frenkel defrauded the underwriters by intentionally failing to disclose material facts to them, proof of deceit was superfluous. Ergo, he concludes that any error in the court’s charge was an irrelevancy. Pateman comes at this conclusion from two slightly different directions, deriving both approaches from the special nature of marine insurance. First, citing Stecker v. American Home Fire Assur. Co., 299 N.Y. 1, 84 N.E.2d 797, 800 (1949), he urges that there was never any need to prove deceit in this sort of case — concealment of material facts in the face of a focused inquiry was enough to warrant the imposition of tort liability. Second, citing cases such as Wisniewski, 579 F.Supp. at 1014, he asserts that, under marine insurance principles, the parties to an insurance contract must negotiate uberrima fides (sometimes called uberrimae fidei), a standard which absolutely requires disclosure of material information in negotiating for coverage, regardless of intent. We can blunt the force of these contentions without resolving whether, under a policy of marine insurance, ocean marine principles apply equally to “wet” and “dry” risks. Assuming, arguendo, that such principles can sometimes apply to “dry” risks, they do not apply here. To begin with, uberrima fides cannot carry the day because the district court, although solicited by Pateman, did not charge the jury on this theory. We do not think that a verdict returned under an erroneous theory of liability can be left intact on a different, uncharged theory unless the jury’s factfind-ing necessarily embodied each of the elements require