                                United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 96-9270.

   BOARDMAN PETROLEUM, INC., d.b.a. Red & Jack Oil Company, Plaintiff-Appellant,

                                                v.

          FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellee.

  FEDERATED MUTUAL INSURANCE COMPANY, a Minnesota Corporation, Plaintiff-
Appellee,

                                                v.

  BOARDMAN PETROLEUM, INC., a Georgia corporation d.b.a Red & Jack Oil Company,
Defendant-Cross-Defendant-Appellant,

   Fireman's Fund Insurance Company, a California corporation, d.b.a. American Automobile
Insurance Company, Defendant-Cross-Claimant.

                                         Feb. 19, 1998.

Appeal from the United States District Court for the Southern District of Georgia. (Nos. CV194-126
& CV195-39), Dudley H. Bowen, Judge.

Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.

       COX, Circuit Judge:

       Boardman Petroleum, Inc., d/b/a/ Red & Jack Oil Company ("Boardman"), appeals the

district court's summary judgment in favor of Federated Mutual Insurance Company ("Federated")

on the choice-of-law applicable to these consolidated cases. We vacate and remand.

                                       I. BACKGROUND

       Boardman owns and operates a chain of retail gasoline stations and convenience stores

located throughout the Southeast. Federated is a policyholder-owned insurer with its home office

in Minnesota. At the time these cases arose, Federated insured Boardman under a number of
policies, none of which contains a choice-of-law provision.

         Over the years, Boardman has presented Federated with several environmental-related

insurance claims arising from its ownership and operation of gas stations. The claims at issue in this

litigation concern two gas stations located in South Carolina. Boardman notified Federated of

contamination at these sites and asked Federated to undertake all remedial efforts required by law.

Federated investigated the claims and determined that no coverage existed under its policy

provisions. Federated sent Boardman a letter dated July 21, 1994, explaining its no-coverage

determination. On July 22, 1994, Federated filed an action for a declaratory judgment in a federal

court in South Carolina. In August 1994, Boardman sued separately for breach of contract and

declaratory relief in a Georgia federal court. The South Carolina court transferred Federated's case

to the Georgia court under 28 U.S.C. § 1404(a) and the Georgia court subsequently consolidated the

cases.

         Pursuant to a global settlement agreement, Federated and Boardman resolved all issues in

these cases but one: which state's law should apply to the consolidated cases? The parties filed

cross-motions for summary judgment on the choice-of-law issue. The district court granted

Federated's motion, denied Boardman's, and applied South Carolina law to the consolidated cases.

The parties had stipulated that if South Carolina law applies, no coverage exists for Boardman's

claims. The district court entered final judgment in each of the consolidated cases to that effect.

                                          II. DISCUSSION

         The issue on appeal is whether the district court erred in determining that South Carolina law

should apply to these consolidated cases. We review de novo the district court's decision to grant

Federated's motion for summary judgment and to deny Boardman's motion for summary judgment.1


   1
    See, e.g., Tinney v. Shores, 77 F.3d 378, 380 (11th Cir.1996).
        Federal courts sitting in diversity apply the forum state's choice-of-law rules.2 It is also true,

however, that when a case is transferred from one forum to another, the transferor court's

choice-of-law rules apply to the transferred case even after the transfer occurs.3               Further,

consolidation of cases under Fed.R.Civ.P. 42 does not strip the cases of their individual identities.

        Georgia does not have a statutory choice-of-law rule, but in contract cases, it follows the

traditional doctrine of lex loci contractus: contracts are "governed as to their nature, validity and

interpretation by the law of the place where they were made" unless the contract is to be performed

in a state other than that in which it was made.4 South Carolina's applicable choice-of-law statute

provides that "[a]ll contracts of insurance on property, lives, or interests in this State are considered

to be made in the State and all contracts of insurance the application for which are taken within the

State are ... subject to the laws of this State."5

        Under Georgia law, an insurance contract is "made" where it is delivered.6 Georgia courts

have held that when insurance contracts made in Georgia lack a choice-of-law provision, the parties

are presumed to have intended their contract to be governed by Georgia law.7 The insurance

contracts at issue here were delivered at Boardman's home office in Georgia, and none of the


   2
    Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
   3
   See 28 U.S.C. § 1404(a); Ferens v. John Deere Co., 494 U.S. 516, 517-19, 110 S.Ct. 1274,
1277, 108 L.Ed.2d 443 (1990); Roofing & Sheet Metal Serv., Inc. v. La Quinta Motor Inns, Inc.,
689 F.2d 982, 991 (11th Cir.1982).
   4
    General Tel. Co. v. Trimm, 252 Ga. 95, 311 S.E.2d 460, 461 (1984) (citing Cox v. Adams, 2
Ga. 158 (1847)).
   5
    S.C.Code Ann. § 38-61-10.
   6
   See Pink v. A.A.A. Highway Express, Inc., 191 Ga. 502, 513, 13 S.E.2d 337, aff'd, 314 U.S.
201, 62 S.Ct. 241, 86 L.Ed. 152 (1941).
   7
   See General Elec. Credit Corp. v. Home Indem. Co., 168 Ga.App. 344, 350, 309 S.E.2d 152
(1983); Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 926 F.Supp. 1566, 1576 (1995).
contracts contains a choice-of-law provision. Thus, under Georgia law, the parties are presumed to

have intended their contract to be governed by Georgia law. The plain language of the South

Carolina statute mandates that South Carolina law applies because the property at issue is in South

Carolina. Thus, the choice-of-law rule governing Boardman's breach of contract and declaratory

judgment action mandates the application of Georgia law, while the choice-of-law rule governing

Federated's declaratory judgment action calls for the application of South Carolina law.

        This court has never addressed the issue of how to determine which state's law applies in

consolidated cases such as these, when the choice-of-law provisions governing each of the separate

lawsuits require the application of differing state substantive laws. The district court performed a

"balancing of interests" analysis, weighing the interests of each state in having its law apply and

choosing the law of the state with the greater interests. We hold that the "balancing of interests"

analysis is the appropriate way to determine which state's law applies in consolidated cases such as

these where of necessity only one state's law may be applied. Therefore, if, in consolidated cases

such as these, when the choice-of-law provisions governing each of the separate lawsuits require the

application of differing state substantive laws, the court should balance the interests of each state

in having its laws apply and apply the law of the state with the greater interests.

        The district court determined that the interests of South Carolina in having its laws apply

outweighed those of Georgia, and therefore determined that South Carolina law should apply to the

consolidated cases. The district court noted that the language of the South Carolina statute indicates

a strong South Carolina policy in favor of subjecting insurance contracts on property located in

South Carolina to South Carolina law. The district court reasoned that because the only property

at issue in the litigation lies in South Carolina, the strong policy interest expressed in the South

Carolina statute is implicated; therefore, South Carolina law should "define the extent of an interest
in land within her boundaries."8 We disagree with the district court's conclusion that South

Carolina's interests in having its laws apply outweigh Georgia's interests in applying its laws to the

consolidated cases.

           Although Georgia does not have an applicable choice-of-law statute, Georgia case law has

continually expressed Georgia's policy concerns in protecting the interest of its insured residents,

even when the property damage for which coverage is sought occurred in another state.9 Further,

some Georgia courts have suggested that performance under a general liability policy is the payment

of claims;10 under this theory, the contracts at issue in the instant case contemplated performance

in Georgia, as the payments would be made to Boardman's home office in Georgia. Thus, the

exception under the lex loci contractus doctrine for contracts performed in other states is

inapplicable.

          In addition to the fact that the contracts were made in Georgia and involved a Georgia

resident insured, the policies issued by Federated to Boardman have to be submitted for review and

approval by the Georgia Insurance Commissioner's office.11 Federated, by contrast, was under no

obligation to submit the policies for review and approval by the South Carolina Insurance




   8
    (R.2-61 at 8.)
   9
    See, e.g., Atlantic Wood Industries, Inc. v. Lumbermen's Underwriting Alliance, 196 Ga.App.
503, 396 S.E.2d 541 (1990) (holding that Georgia law would apply to general liability insurance
policy interpretation issues because policies were delivered in Georgia even though
contaminated property owned by the insured for which coverage was sought was located in
Virginia); Claussen v. Aetna Cas. & Sur. Co., 754 F.Supp. 1576, 1579 (1990) (holding that
Georgia substantive law applied to insurance policy interpretation issues for policy delivered in
Georgia even though insured's contaminated property was located in Florida).
   10
    See, e.g. Federal Ins. Co. v. Nat'l Distrib. Co., 203 Ga.App. 763, 767, 417 S.E.2d 671, 675
(1990).
   11
        See O.C.G.A. §§ 33-3-21, 33-3-21.1.
Commissioner, as the policies were neither issued nor sold in the state of South Carolina.12

Moreover, application of South Carolina law to the policies at issue here would lead to inconsistent

interpretations of the same policy language.13

           No evidence of South Carolina's interests tips the balance. First, the primary policy concerns

motivating the enactment of the South Carolina statute are not implicated by the facts. The South

Carolina Supreme Court has emphasized that South Carolina's statutory choice-of-law provision

applicable to contracts of insurance on property, lives, and interests located within the state was

intended to further South Carolina's interest in protecting the rights of its citizens.14 The court went

on to say that statutes such as these provide policyholders with a means of enforcing their rights

against mail-order insurance companies who maintain an office and own property only in the state

where they are incorporated.15 The court noted that the trend in cases dealing with choice-of-law

determination in the insurance coverage context is for a "forum to apply its own law to adhesion

contracts of insurance entered into by its residents."16 Thus, it appears that the primary policy



   12
        See S.C.Code Ann. § 38-61-20(A).
   13
     South Carolina courts have consistently applied the "manifestation trigger of coverage"
position to insurance policies, under which coverage is triggered only if the property damage
both takes place and is discovered within the policy period. See Safeco Ins. Co. v. Federated
Mut. Ins. Co., 915 F.2d 1565 (4th Cir.1990). Courts applying Georgia, Florida, and Alabama
law, however, have rejected the "manifestation trigger of coverage" approach in favor of an
approach under which coverage is triggered by property damage alone taking place during the
policy period. See Continental Cas. Co. v. Synalloy Corp., 667 F.Supp. 1563 (S.D.Ga.1986)
(applying Georgia law); Trizec Properties, Inc. v. Biltmore Const. Co., 767 F.2d 810 (11th
Cir.1985) (applying Florida law); Commercial Union Ins. Co. v. Sepco Corp., 765 F.2d 1543
(11th Cir.1985) (applying Alabama law).
   14
     Johnston v. Commercial Travelers Mut. Acc. Ass'n of America, 242 S.C. 387, 131 S.E.2d 91,
94 (1963).
   15
        See id.
   16
        Id. 131 S.E.2d at 95 (citations omitted).
consideration behind the enactment of § 38-61-10 is the protection of the rights of South Carolina

citizen insureds. Here the insured is a Georgia corporation, the policies were delivered to its home

office in Georgia, and performance will take place in Georgia. Second, the property is located in

South Carolina, but Boardman, not Federated, bears the responsibility of supervising the remediation

of these sites.17 Thus, the location of the property alone is not a heavy weight in favor of the

application of South Carolina law considering the strong interests Georgia has in having its law

applied in these cases.

                                        III. CONCLUSION

          For these reasons, we conclude that the district court erred in granting summary judgment

in favor of Federated and applying South Carolina law to the consolidated cases. We therefore

vacate the judgment in Federated's favor and remand with instruction to grant summary judgment

in Boardman's favor on the choice-of-law issue.

          VACATED AND REMANDED WITH INSTRUCTION.




   17
        (R.3-71-24.)
