10-0799-cv
10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co.




                                   UNITED STATES COURT OF APPEALS

                                                 FOR THE SECOND CIRCUIT


                                                      August Term, 2010

                      (Argued: October 8, 2010                      Decided:     January 26, 2011)

                                                  Docket No. 10-0799-cv


                10 ELLICOTT SQUARE COURT CORPORATION AND 5182 GROUP, LLC,

                                                                                     Plaintiffs-Appellees,
                                                               —v.—

                                   MOUNTAIN VALLEY INDEMNITY COMPANY,

                                                                                     Defendant-Appellant.
                                                    _________________

Before:
                        SACK and RAGGI, Circuit Judges, KOELTL, District Judge.*
                                                                        ______



                     MAX GERSHWEIR, Hurwitz & Fine, P.C. (Katherine A. Fijal, of counsel),
                     Buffalo, New York, for Defendant-Appellant.

                     JUDITH TREGER SHELTON, Kenney Shelton Liptak Nowak LLP, Buffalo, New
                     York, for Plaintiffs-Appellees.
                                        _____________________




          *
         Honorable John G. Koeltl of the United States District Court for the Southern
District of New York, sitting by designation.

                                                                1
PER CURIAM.

       Defendant appealed from an award of summary judgment entered in the United States

District Court for the Western District of New York (William M. Skretny, Chief Judge) in

favor of plaintiffs on their action for a declaration that defendant was obligated to defend and

indemnify them in a personal injury action pending in New York State court. The district

court’s judgment rested on three grounds relevant to this appeal: (1) that a contract that had

not been signed on behalf of the parties to it nonetheless had been “executed” within the

meaning of the primary insurance policy in issue and New York law; (2) that defendant was

bound to provide insurance coverage to the plaintiffs under an umbrella policy; and (3) that,

in any event, defendant was estopped from denying insurance coverage to the plaintiffs by

having issued a certificate of insurance identifying the plaintiffs as additional insureds.

       In an amended opinion filed December 28, 2010, we reversed the district court’s

determination on the first issue and affirmed on the second. See 10 Ellicott Square Court

Corp. v. Mountain Valley Indem. Co., --- F.3d ----, 2010 WL 5295420 (2d Cir. 2010). As

to the third, because the issue of whether a certificate of insurance can be enforced through

estoppel implicated important public policy interests of New York and because a split of

authority existed among the Appellate Division Departments, we certified the following

question to the New York Court of Appeals:

       In a case brought against an insurer in which a plaintiff seeks a declaration that
       it is covered under an insurance policy issued by that insurer, does a certificate
       of insurance by an agent of the insurer that states that the policy is in force but
       also bears language that the certificate is not evidence of coverage, is for


                                               2
       informational purposes only, or other similar disclaimers, estop the insurer
       from denying coverage under the policy?

Id. at *12. The New York Court of Appeals has not yet decided whether to accept the

certified question.

       Subsequent to our submission of this certified question, the parties settled the case.

On January 12, 2011, the parties submitted a stipulation to withdraw the appeal with

prejudice and without costs or attorneys’ fees. See Fed. R. App. P. 42(b). The parties’

stipulation does not affect the decision already filed by this court (1) reversing the district

court’s conclusion that the contract was “executed” and, therefore, that the primary policy

was in effect; and (2) affirming the grant of summary judgment to plaintiffs with respect to

coverage under the umbrella policy. See 10 Ellicott Square Court Corp. v. Mountain Valley

Indem. Co., 2010 WL 5295420, at *8, *10. We nevertheless construe the stipulation to

abandon defendant’s appeal from the district court’s estoppel ruling. Accordingly, we order

that the appeal of this issue, which remained open before this court, now be dismissed with

prejudice, without costs to either party. We also withdraw our certification to the New York

Court of Appeals, see, e.g., Stichting Ter Behartiging van de Belangen van

Oudaandeelhouders in het Kapitaal van Saybolt Int’l B.V. v. Schreiber, 421 F.3d 124 (2d Cir.

2005); Golden v. Winjohn Taxi Corp., 323 F.3d 185, 186-87 (2d Cir. 2003), and order the

Clerk of Court to transmit to the Clerk of the New York Court of Appeals a letter so

indicating, together with a copy of this opinion.




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