     10-0799-CV
     10 Ellicott Square Court Corp. v. Mountain Valley Indemnity Co.

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2010

4    (Argued:    October 8, 2010                  Decided: December 23, 2010
5                                                Amended: December 28, 2010)

6                              Docket No. 10-0799-CV

7                     -------------------------------------

8         10 ELLICOTT SQUARE COURT CORPORATION and 5182 GROUP, LLC,

9                              Plaintiffs-Appellees,

10                                       - v -

11                     MOUNTAIN VALLEY INDEMNITY COMPANY,

12                              Defendant-Appellant.

13                    -------------------------------------

14   Before:     SACK and RAGGI, Circuit Judges, and KOELTL, District
15               Judge.*

16               Appeal by the defendant from a summary judgment entered

17   in the United States District Court for the Western District of

18   New York (William M. Skretny, Chief Judge) in favor of the

19   plaintiffs.    The district court's judgment rested on three

20   grounds relevant to this appeal: first, that a contract that had

21   not been signed on behalf of the parties to it nonetheless had

22   been "executed" within the meaning of the primary insurance

23   policy in issue and New York law; second, that the defendant was

24   bound to provide insurance coverage to the plaintiffs under an


           *
            The Honorable John G. Koeltl of the United States District
     Court for the Southern District of New York, sitting by
     designation.
1    umbrella policy; and third, that in any event the defendant was

2    estopped from denying insurance coverage to the plaintiffs by

3    having issued a certificate of insurance identifying the

4    plaintiffs as additional insureds.    We reverse the district

5    court's determination on the first issue, affirm on the second,

6    and certify to the New York Court of Appeals a question of New

7    York law necessary to our resolution of the third.

8                Affirmed in part, reversed in part, question certified

9    to the New York Court of Appeals in part, decision reserved in

10   part.

11                              MAX GERSHWEIR, Hurwitz & Fine,
12                              P.C.(Katherine A. Fijal, Esq., of
13                              counsel), Buffalo, New York, for
14                              Defendant-Appellant.

15                              JUDITH TREGER SHELTON, Kenney
16                              Shelton Liptak Nowak LLP, Buffalo,
17                              New York, for Plaintiffs-
18                              Appellees.


19   SACK, Circuit Judge:

20               The plaintiffs in this action, 5182 Group, LLC, and 10

21   Ellicott Square Court Corporation, were, respectively, the owner

22   of and construction manager for a commercial building in Buffalo,

23   New York.   They contracted with a third firm, Ellicott

24   Maintenance, Inc., for the building's partial interior

25   demolition.

26               The construction agreement between the plaintiffs and

27   Ellicott Maintenance required the latter to secure insurance to

28   cover the former for any legal liability arising out of the


                                       2
1    demolition project.   Ellicott Maintenance therefore purchased two

2    policies--one primary, the other "umbrella"--from the defendant

3    Mountain Valley Indemnity Company.   The defendant, by its agent

4    LRMP, Inc., issued a certificate of insurance evidencing the

5    policies and the status of the plaintiffs as additional insureds,

6    after receipt of which Ellicott Maintenance began the demolition

7    work.

8              The primary insurance policy required that the

9    underlying written construction agreement between the named

10   insured, Ellicott Maintenance, and the additional insureds, the

11   plaintiffs in this action, be "executed" in order for any injury

12   for which the plaintiffs sought defense and indemnification to be

13   covered by the policy.   Before anyone on behalf of either

14   Ellicott Maintenance or the plaintiffs signed the construction

15   agreement, a worker on the demolition project was injured.    When

16   the worker brought suit in New York State court in an attempt to

17   recover for his injuries, the plaintiffs sought defense and

18   indemnification from the defendant insurance company.   The

19   defendant declined coverage, arguing that because the

20   construction agreement was neither signed on behalf of the

21   parties nor fully performed prior to the worker's injury, it had

22   not been "executed" under the primary insurance policy issued by

23   the defendant to Ellicott Maintenance, and therefore the

24   plaintiffs did not qualify as additional insureds under either of

25   the policies.   The plaintiffs then brought this action in the



                                      3
1    United States District Court for the Western District of New York

2    seeking a declaratory judgment to the contrary.

3               The district court (William M. Skretny, Chief Judge)

4    agreed with the plaintiffs, concluding that the construction

5    agreement was "executed" even though it had not been signed or

6    fully performed, and that the plaintiffs therefore were entitled

7    to coverage under both the primary and the umbrella policies.

8    The court also decided that even if the plaintiffs were not

9    entitled to coverage under the terms of the policies, the

10   defendant was estopped from denying coverage because its agent

11   had issued a certificate of insurance to Ellicott Maintenance

12   that listed the plaintiffs as additional insureds.   The defendant

13   appeals.

14              We disagree with the district court's view that under

15   New York law, a contract has been "executed" despite the absence

16   of either a signature by or on behalf of both parties or full

17   performance.   Therefore, under its terms, the primary insurance

18   policy's additional insured coverage did not become effective

19   prior to the accident in question.   We conclude, however, that

20   the plaintiffs nonetheless were covered under the terms of the

21   umbrella policy because that policy did not require "execution"

22   of an underlying written agreement to take effect.

23              New York's intermediate appellate courts are divided as

24   to whether, despite the fact that an insurance policy's

25   additional-insured coverage is not in effect under its express

26   terms, a certificate of insurance issued by an agent of the

                                      4
1    insurer nonetheless may estop the insurer from denying coverage

2    to a party identified as an additional insured on the

3    certificate, even where the certificate contains various

4    disclaimers, such as that it is "for informational purposes

5    only."   We therefore certify the following question to the New

6    York Court of Appeals:

 7              In a case brought against an insurer in which
 8              a plaintiff seeks a declaration that it is
 9              covered under an insurance policy issued by
10              that insurer, does a certificate of insurance
11              issued by an agent of the insurer that states
12              that the policy is in force but also bears
13              language that the certificate is not evidence
14              of coverage, is for informational purposes
15              only, or other similar disclaimers, estop the
16              insurer from denying coverage under the
17              policy?

18                               BACKGROUND

19              The defendant Mountain Valley Indemnity Company

20   ("Mountain Valley") issued a commercial general liability

21   insurance policy, effective March 15, 2003 to March 15, 2004,

22   (the "Primary Policy") to non-party Ellicott Maintenance, Inc., a

23   general contractor in Buffalo, New York.1   As amended by an

24   additional-insured endorsement, the Primary Policy covered not


          1
               In identifying the terms of the Primary Policy, the
     parties refer the Court to a Renewal Declaration contained in the
     joint appendix reflecting an insurance policy effective from
     March 15, 2004, to March 15, 2005. The policy at issue in this
     litigation, however, was effective from March 15, 2003 to
     March 15, 2004, the same dates listed on the Certificate of
     Insurance. Because the parties do not dispute that the Primary
     Policy was issued, that it was effective from 2003 to 2004, and
     that it was subject to the same terms and endorsements as are
     contained in the Renewal Declaration, we rely upon the terms of
     the Renewal Declaration as evidence of the contents of the
     Primary Policy.

                                      5
1    only Ellicott Maintenance but also any "person or organization

2    with whom [Ellicott Maintenance] agreed, because of a written

3    contract[,] . . . to provide insurance such as is afforded under

4    [the Primary Policy], but only with respect to liability arising

5    out of [Ellicott Maintenance's] operations," and only when "the

6    written contract or agreement [between Ellicott Maintenance and

7    the additional insured] ha[d] been executed . . . prior to the

8    'bodily injury.'"    Mountain Valley Indemnity Co. Commercial

9    Policy No. 331-0013567, Issued to Ellicott Maintenance, Inc.,

10   Gen. Liability Extension Endorsement ¶ 11, Decl. of Katherine A.

11   Fijal in Supp. of Mountain Valley's Mot. for Summ. J. ("Fijal

12   Decl.") Ex. J., 10 Ellicott Square Court Corp. v. Mountain Valley

13   Indem. Co., No. 07-CV-0053 (W.D.N.Y. June 13, 2008).    The Primary

14   Policy limited Mountain Valley's liability to one million dollars

15   "per occurrence" of bodily injury, and defined "occurrence" to

16   "mean[] an accident . . . ."

17             In addition to the Primary Policy, Mountain Valley

18   issued to Ellicott Maintenance an umbrella policy (the "Umbrella

19   Policy") bearing the same effective dates as the Primary Policy.

20   The Umbrella Policy limited Mountain Valley's liability per

21   occurrence to two million dollars "in excess of" the coverage

22   provided by the Primary Policy and stipulated that the Umbrella

23   Policy's general aggregate limit for each annual period was two

24   million dollars.    Like the Primary Policy, the Umbrella Policy

25   guaranteed coverage for bodily injury resulting from an

26   occurrence, which it defined as "an accident . . . ," and

                                       6
1    extended coverage to additional insureds with whom Ellicott

2    Maintenance had "agreed in writing prior to any [injury] . . . to

3    provide insurance such as is afforded" by the Umbrella Policy.

4    Mountain Valley Indem. Co. Commercial Umbrella Policy No. X31-

5    0013568, Issued to Ellicott Maintenance, Inc. at 8, Fijal Decl.

6    Ex. K (the "Umbrella Policy").   Unlike the Primary Policy, the

7    Umbrella Policy did not provide that its coverage of additional

8    insureds was effective only if the written agreement between

9    Ellicott Maintenance and any additional insureds had been

10   "executed."

11             On or about August 14, 2003, Ellicott Maintenance

12   contracted with plaintiffs 5182 Group, LLC, and 10 Ellicott

13   Square Court Corporation d/b/a Ellicott Development Company

14   ("EDC"), to perform interior demolition work at the Graystone

15   Building in Buffalo, New York, owned by plaintiff 5182 Group, and

16   managed by EDC.   The agreement between Ellicott Maintenance and

17   the plaintiffs (the "Construction Agreement") obligated Ellicott

18   Maintenance to procure insurance coverage protecting both itself

19   and the plaintiffs against claims by employees or subcontractors

20   for, inter alia, damages resulting from bodily injury.   The

21   Construction Agreement required that the insurance be "primary,

22   rather than concurrent with or secondary to [the] Owner's own

23   liability insurance," that it provide coverage of no less than

24   five million dollars,2 and that Ellicott Maintenance   obtain,


          2
               While the Primary and Umbrella Policies, each of which
     limited liability to two million dollars for each annual period,

                                      7
1    prior to the commencement of work, "Certificates of Insurance

2    naming [the plaintiffs] as additional insureds."    Agreement for

3    Construction, dated Sept. 12, 2003, at 10–11, Fijal Decl. Ex. G.

4    No one signed the Construction Agreement on behalf of either the

5    plaintiffs or Ellicott Maintenance until September 12, 2003.

6               Some three weeks earlier, on August 19, 2003, Mountain

7    Valley's agent, LRMP, Inc., had issued a certificate of insurance

8    (the "COI") identifying Mountain Valley as the issuer of the

9    Primary Policy and the Umbrella Policy, Ellicott Maintenance as

10   the named insured, and the plaintiffs as "additional insured with

11   respect to project: Graystone."   Certificate of Liability

12   Insurance, dated August 19, 2003, Fijal Decl. Ex. L.    The COI

13   listed the limits of liability described above--one million

14   dollars per occurrence under the Primary Policy and two million

15   dollars under the Umbrella Policy.    The following language

16   appeared in the upper right-hand quadrant of the front of the

17   COI:   "THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY

18   AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.    THIS

19   CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED

20   BY THE POLICIES BELOW."   Id. (capitalization in original).    The

21   COI also provided that "THE INSURANCE AFFORDED BY THE POLICIES

22   DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND

23   CONDITIONS OF SUCH POLICIES."   Id. (capitalization in original).



     did not together provide the five million dollars in coverage
     required by the construction agreement, that fact does not affect
     our resolution of the issues on appeal.

                                       8
1    The reverse side of the COI bore similar language under the

2    heading "DISCLAIMER":    "The Certificate of Insurance . . . does

3    not constitute a contract between the issuing insurer . . . and

4    the certificate holder, nor does it affirmatively or negatively

5    amend, extend or alter the coverage afforded by the policies

6    listed thereon."   Id.   Ellicott Maintenance began work the day

7    after it received the COI.

8              On September 9, 2003, three days before Ellicott

9    Maintenance owner Theodore S. DiRienzo and EDC owner Carl P.

10   Paladino signed the construction agreement on behalf of the

11   parties to it, David DelPrince, an employee of S&A Rubbish and

12   Debris Removal--a subcontractor hired by Ellicott Maintenance--

13   was injured when a roof collapsed at the Graystone site.

14             The plaintiffs notified Mountain Valley's agent, LRMP,

15   of DelPrince's injury and potential claim by letter dated October

16   22, 2003, requesting that Mountain Valley defend and indemnify

17   them in any suit brought by DelPrince.    Some six months later, by

18   letter dated April 13, 2004, Mountain Valley informed the

19   plaintiffs that it would not defend or indemnify them because,

20   inasmuch as the Construction Agreement had not been signed on

21   behalf of the parties before DelPrince was injured, "there was

22   not in existence on the date of loss a written contract executed

23   prior to the bodily injury," as required by the terms of the

24   Primary Policy.    Letter from Susan Gabriele to 10 Ellicott Square

25   [Court] Corp., dated April 13, 2004, App. to Pls.' Local R. 56.1

26   Statement of Material Facts in Supp. of Pls.' Mot. for Summ. J.

                                       9
1    Ex. 10, 10 Ellicott Square Court Corp. v. Mountain Valley Indem.

2    Co., No. 07-CV-0053 (W.D.N.Y. June 13, 2008).   The letter further

3    stated that even if the plaintiffs qualified as additional

4    insureds under the Primary Policy as of the date of the accident,

5    Mountain Valley would deny coverage because the plaintiffs had

6    failed to timely notify Mountain Valley of DelPrince's injury and

7    possible claim, as required by the Primary Policy.

8              DelPrince filed suit against EDC, 5182 Group, and

9    Ellicott Maintenance in New York State Supreme Court, Erie

10   County, on October 28, 2004, alleging negligence and violations

11   of the New York Labor Law, and seeking to recover damages for the

12   injuries he sustained.3

13             The plaintiffs filed this declaratory judgment action

14   in the United States District Court for the Western District of

15   New York on January 30, 2007.   They alleged that they were

16   additional insureds under the Primary Policy and therefore were

17   entitled to coverage by Mountain Valley in DelPrince's suit.   The

18   plaintiffs further alleged that the COI bound Mountain Valley to

19   provide coverage despite the absence of a signed agreement

20   between EDC and Ellicott Maintenance.   Finally, the plaintiffs

21   alleged that Mountain Valley should be precluded from relying on

22   the defense of untimely notice because Mountain Valley's response

23   disclaiming coverage was itself untimely.   The plaintiffs later

24   amended their complaint to add a claim alleging entitlement to



          3
               The parties represented at oral argument before this
     Court that DelPrince's suit has been settled.
                                     10
1    indemnification and defense as additional insureds under the

2    terms of the Umbrella Policy.

3              The district court (Richard J. Arcara, Judge4) referred

4    the case to Magistrate Judge Leslie G. Foschio.   In June 2008,

5    the parties brought cross-motions for summary judgment before the

6    magistrate judge.   Mountain Valley's motion principally relied on

7    the same arguments made in its April 2004 letter to the

8    plaintiffs disclaiming coverage.   Mountain Valley also argued

9    that it was not bound by the Umbrella Policy because (1) the

10   Construction Agreement required that the insurance provided to

11   the plaintiffs be "primary," and the Umbrella Policy was

12   secondary; and (2) the Umbrella Policy was "subject to all the

13   limitations of [the Primary Policy]," including the execution

14   requirement, and that because the Construction Agreement was not

15   executed before DelPrince's injury, the plaintiffs "[we]re not

16   insureds on the underlying insurance [and we]re not insureds"

17   under the Umbrella Policy.   Mem. of Law in Supp. of Mountain

18   Valley Indem. Co.'s Mot. for Summ. J. at 20–21, 10 Ellicott

19   Square Court Corp. v. Mountain Valley Indem. Co., No. 07-CV-0053

20   (W.D.N.Y. June 13, 2008); see Umbrella Policy at 7–8.   In support

21   of their cross-motion, the plaintiffs contended that even though

22   the Construction Agreement had not been signed on behalf of the

23   parties at the time of the accident, it nonetheless had been



          4
               This case   was originally assigned to Judge Arcara.
     When, following the   reference of the case to the magistrate
     judge, Judge Arcara   recused himself, the case was reassigned to
     Chief Judge William   M. Skretny.
                                       11
1    "executed" for purposes of the Primary Policy because of the

2    parties' partial performance and because the parties to the

3    contract understood its signing to be ministerial.    The

4    plaintiffs further argued that even if the Agreement had not been

5    executed, the COI bound Mountain Valley to provide coverage under

6    the Primary Policy because "Mountain Valley's authorized

7    representative represented that such coverage was in place."

8    Mem. of Law in Supp. of Pls.' Mot. for Summ. J. at 17, 10

9    Ellicott Square Court Corp. v. Mountain Valley Indem. Co., No.

10   07-CV-0053 (W.D.N.Y. June 13, 2008).   Finally, the plaintiffs

11   argued that the Umbrella Policy's own "blanket additional insured

12   provision" entitled them to that policy's coverage.

13             In a Report and Recommendation (the "R&R"), 10 Ellicott

14   Square Court Corp. v. Mountain Valley Indem. Co., No. 07-CV-0053

15   (W.D.N.Y. Sept. 22, 2009), the magistrate judge recommended

16   denying Mountain Valley's motion for summary judgment and

17   granting the plaintiffs'.5   With regard to whether the

18   Construction Agreement was "executed," the magistrate judge

19   concluded that "in light of 'common speech' and the reasonable

20   expectations of a businessperson"--and because Mountain Valley,

21   as the drafter of the policy, could have used the term "signed"

22   if it had intended to require a signature--the term "executed" as

23   used in the Primary Policy should not be interpreted to require



          5
               Subject matter jurisdiction over this action is founded
     on diversity of citizenship. The parties do not dispute that the
     plaintiffs' claims are properly resolved by applying New York
     law.
                                     12
1    the parties' signatures to trigger coverage under that policy.

2    R&R at 12–13.    On the question of whether the plaintiffs were

3    entitled to coverage based on the COI, the magistrate judge

4    recommended finding that the COI incorporated the terms of the

5    Primary and Umbrella Policies.     Relying on Niagara Mohawk Power

6    Corp. v. Skibeck Pipeline Co., 271 A.D.2d 867, 705 N.Y.S.2d 459

7    (4th Dep't 2000), the magistrate judge found that Mountain

8    Valley's agent, acting within the scope of its authority, "issued

9    the certificate of insurance naming [the plaintiffs] as

10   additional insureds, upon which [the plaintiffs] were entitled to

11   rely, regardless of the absence of a signing of the construction

12   contract at that time."     R&R at 15.   The magistrate judge

13   therefore recommended estopping Mountain Valley from denying

14   coverage to the plaintiffs.    Finally, the magistrate judge

15   rejected Mountain Valley's argument that the plaintiffs had not

16   provided timely notice of DelPrince's injury.6

17               Mountain Valley filed written objections to the entire

18   R&R making essentially the same arguments it had presented to the

19   magistrate judge.    Upon de novo review, the district court

20   adopted the R&R in its entirety and without further written

21   analysis.    10 Ellicott Square Court Corp. v. Mountain Valley

22   Indem. Co., No. 07-CV-0053, 2010 WL 681284, 2010 U.S. Dist. LEXIS

23   14556 (W.D.N.Y. Feb. 19, 2010).

24               Mountain Valley appeals.



          6
                 Mountain Valley does not challenge this conclusion on
     appeal.
                                       13
1                                DISCUSSION

2              I.    Standard of Review

3              We review the district court's grant of summary

4    judgment de novo, "construing the evidence in the light most

5    favorable to the non-moving party and drawing all reasonable

6    inferences in its favor."   Fincher v. Depository Trust & Clearing

7    Corp., 604 F.3d 712, 720 (2d Cir. 2010).     "Summary judgment is

8    appropriate where there exists no genuine issue of material fact

9    and, based on the undisputed facts, the moving party is entitled

10   to judgment as a matter of law."     O & G Indus., Inc. v. Nat'l

11   R.R. Passenger Corp., 537 F.3d 153, 159 (2d Cir. 2008), cert.

12   denied, 129 S. Ct. 2043 (2009) (brackets and internal quotation

13   marks omitted); see also Fed. R. Civ. P. 56(a) ("The court shall

14   grant summary judgment if the movant shows that there is no

15   genuine dispute as to any material fact and the movant is

16   entitled to judgment as a matter of law.     The court should state

17   on the record the reasons for granting or denying the motion.").

18             II.   Execution of the Construction Agreement

19             The plaintiffs argue, and the district court concluded,

20   that although no one on behalf of them or Ellicott Maintenance

21   had signed the Construction Agreement before DelPrince was

22   injured, the contract nevertheless was "executed" for purposes of

23   the Primary Policy.   We disagree.

24             We must give "unambiguous provisions of an insurance

25   contract . . . their plain and ordinary meaning."     Essex Ins. Co.

26   v. Laruccia Constr., Inc., 71 A.D.3d 818, 819, 898 N.Y.S.2d 558,

                                     14
1    559 (2d Dep't 2010) (internal quotation marks omitted).    We

2    cannot disregard "the plain meaning of the policy's

3    language . . . in order to find an ambiguity where none exists."7

4    Empire Fire & Marine Ins. Co. v. Eveready Ins. Co., 48 A.D.3d

5    406, 407, 851 N.Y.S.2d 647, 648 (2d Dep't 2008).

6                "[I]t is common practice for the courts of this State

7    to refer to the dictionary to determine the plain and ordinary

8    meaning of words to a contract."   Mazzola v. Cnty. of Suffolk,

9    143 A.D.2d 734, 735, 533 N.Y.S.2d 297, 297 (2d Dep't 1988)

10   (citation omitted).   The New York Court of Appeals recently did

11   just that in determining the meaning of New York State statutory

12   language.   Giordano v. Market Am., Inc., --- N.Y.3d ----, ----, -

13   -- N.E.2d ----, ----, --- N.Y.S.2d ----, ----, 2010 WL 4642451,

14   2010 N.Y. LEXIS 3284, at *10 (Nov. 18, 2010) (adopting a

15   dictionary definition of the word "latent" for purposes of N.Y.

16   C.P.L.R. 214-c(4)).

17               Black's Law Dictionary defines "executed" as: "1. (Of a

18   document) that has been signed <an executed will>.    2. That has

19   been done, given, or performed <executed consideration>."




          7
               The plaintiffs appear to argue that the term "executed"
     is ambiguous. Whether a contract term is ambiguous is a
     threshold question of law. Morgan Stanley Grp. Inc. v. New Eng.
     Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000). "An ambiguity exists
     where the terms of an insurance contract could suggest more than
     one meaning when viewed objectively by a reasonably intelligent
     person" who is aware of trade terminology and of the context of
     the entire contract. Id. (internal quotation marks omitted). As
     we will discuss below, we conclude that the term "executed" is
     not ambiguous.
                                     15
1    Black's Law Dictionary 650 (9th ed. 2009).8   A note to the

2    definition warns that "[t]he term 'executed' is a slippery

3    word. . . .   A contract is frequently said to be executed when

4    the document has been signed, or has been signed, sealed, and

5    delivered.    Further, by executed contract is frequently meant one

6    that has been fully performed by both parties."   Id. (quoting

7    William R. Anson, Principles of the Law of Contract 26 n.*

8    (Arthur L. Corbin ed., 3d Am. ed. 1919)) (brackets and internal

9    quotation marks omitted, emphasis in original).

10             New York courts employ the standard indicated by the

11   definition in Black's, requiring that a contract be either signed

12   or fully performed before it can be considered executed.9     For

13   example, in Burlington Insurance Co. v. Utica First Insurance

14   Co., 71 A.D.3d 712, 896 N.Y.S.2d 433 (2d Dep't 2010),10 a case


          8
               Black's Law Dictionary defines "execute" as, inter
     alia: "To perform or complete (a contract or duty)"; and "To make
     (a legal document) valid by signing; to bring (a legal document)
     into its final, legally enforceable form." Black's Law
     Dictionary, supra, at 649.
          9
               The parties have not pointed to, nor have we ourselves
     discovered, an opinion of the New York Court of Appeals
     addressing the definition of "executed" as it relates to
     contracts. Because there is no disagreement among the
     Departments of the Appellate Division in this regard, however, we
     will apply the decisions of those courts. "[W]e are bound to
     apply the law as interpreted by New York's intermediate appellate
     courts unless we find persuasive evidence that the New York Court
     of Appeals, which has not ruled on this issue, would reach a
     different conclusion." Blue Cross & Blue Shield of N.J., Inc. v.
     Philip Morris USA Inc., 344 F.3d 211, 221 (2d Cir. 2003)
     (ellipses and internal quotation marks omitted).
          10
               The district court relied on the Supreme Court's
     opinion in Burlington, which the Second Department overturned, in
     determining applicable New York law. We of course treat the
     Second Department's decision, of which the district court could
                                     16
1    with facts remarkably similar to those of the case before us, a

2    construction manager contracted with a subcontractor to perform

3    work at a site in Manhattan.    The agreement was memorialized in a

4    purchase order that required the subcontractor "to obtain

5    insurance in specified minimum amounts, and to name [the

6    construction manager] as an additional insured on the Certificate

7    of Insurance."    Id. at 712, 896 N.Y.S.2d at 434.   The policy's

8    additional insured endorsement provided, inter alia, that the

9    written contract or agreement between the manager and

10   subcontractor had to be "[c]urrently in effect or becoming

11   effective during the terms of this policy; and . . . [e]xecuted

12   prior to the 'bodily injury' [or] 'personal injury'."     Id. at

13   713, 896 N.Y.S.2d at 434.

14              Before the purchase order was signed on behalf of

15   either party, and before work at the site was completed, a man

16   was injured when he fell through a sidewalk cellar door at the

17   construction site.    Id.   The injured man filed a personal injury

18   action against the construction manager and the subcontractor,

19   both of whom in turn sought coverage from the defendant insurance

20   company.   Id.   The defendant declined coverage "on the ground

21   that [the construction manager] was not an additional insured

22   pursuant to the terms of the policy's additional insured

23   endorsement" because "the purchase order was not signed at the

24   time of the underlying plaintiff's alleged injury and, therefore,



     not have known when it decided the case at bar, as superseding
     the Supreme Court's view on the matter.
                                     17
1    had not been 'executed' as of that time," as required by the

2    endorsement.   Id.   The plaintiffs argued that the contract had

3    been executed by virtue of their partial performance of their

4    duties thereunder.

5              The Appellate Division, Second Department, agreed with

6    the insurer, concluding that "the defendant demonstrated that the

7    contract was not 'executed' at the time of the alleged

8    accident . . . since it was both unsigned and had not been fully

9    performed at that time."    Id. at 714, 896 N.Y.S.2d at 435.   The

10   court found "no support for the plaintiffs' contention that the

11   condition in the additional insured endorsement that the contract

12   be 'executed' prior to the bodily injury or personal injury could

13   be satisfied by partial performance."    Id.

14             In this case, the plaintiffs assert that although the

15   Construction Agreement was not signed, the "underlying contract"

16   requiring Ellicott Maintenance to procure insurance had been

17   fully performed in that Ellicott Maintenance had "obtained

18   insurance in favor of EDC/5182 Group by purchasing policies with

19   a blanket additional insured endorsement," and "delivered proof

20   of coverage in the form of" the COI.    Appellees' Br. 20.   But the

21   Construction Agreement was not comprised of many individual

22   contracts, as the plaintiffs' argument implies.    Rather,

23   fulfilling the insurance procurement provision constituted

24   partial performance of the Construction Agreement--satisfaction

25   of one of the duties required of Ellicott Maintenance thereunder.



                                      18
1    And as the district court correctly noted, partial performance

2    does not constitute execution.

3              The plaintiffs also argue that Burlington "appears to

4    be premised on a legal fallacy," Appellees' Br. 14, i.e., that

5    the Second Department's acknowledgment that the word "executed"

6    can have more than one meaning cannot be reconciled with its

7    conclusion that this "does not render the contract uncertain or

8    ambiguous," Burlington, 71 A.D.3d at 713, 896 N.Y.S.2d at 435

9    (internal quotation marks omitted).   But the Burlington court

10   concluded that the contract before it had not been executed

11   because it had neither been signed nor fully performed.

12   Therefore, neither method of execution had been met.   Id. at 714,

13   896 N.Y.S.2d at 435.   One cannot conclude from the fact that a

14   contract requirement can be satisfied in more than one way that

15   the contract for that reason alone "lack[s] a definite and

16   precise meaning."   SUS, Inc. v. St. Paul Travelers Grp., 75

17   A.D.3d 740, 742, 905 N.Y.S.2d 321, 324 (3d Dep't 2010).   Neither

18   does it render the term ambiguous, nor create a triable issue of

19   material fact.

20             Because New York law unambiguously requires either the

21   signing of a contract or its full performance for it to be

22   "executed" within the meaning of an insurance policy requiring

23   such prior execution, and because neither occurred here, the

24   Construction Agreement was not executed as of the date of

25   DelPrince's injury.    The district court's finding that it was and



                                      19
1    its conclusion that for that reason the Primary Policy was in

2    effect at the time of the accident, are therefore in error.

3               III. Estoppel under the Certificate of Insurance

4               The plaintiffs contend that Mountain Valley is

5    nonetheless estopped from denying coverage to the plaintiffs

6    under the Primary Policy11 because Mountain Valley's agent issued,

7    and the plaintiffs relied upon, the COI.   The district court

8    agreed.    New York's intermediate appellate courts are divided on

9    the question.

10              New York contract law instructs that, as a general

11   matter, "[a] certificate of insurance is merely evidence of a

12   contract for insurance, not conclusive proof that the contract

13   exists, and not, in and of itself, a contract to insure."     Horn

14   Maint. Corp. v. Aetna Cas. & Sur. Co., 225 A.D.2d 443, 444, 639

15   N.Y.S.2d 355, 356 (1st Dep't 1996); see also Sevenson Envtl.

16   Servs., Inc. v. Sirius Am. Ins. Co., 74 A.D.3d 1751, 1753, 902

17   N.Y.S.2d 279, 280 (4th Dep't 2010); Tribeca Broadway Assocs., LLC

18   v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198, 200, 774 N.Y.S.2d

19   11, 13 (1st Dep't 2004).   While a certificate "may be sufficient

20   to raise an issue of fact" on summary judgment, "it is not

21   sufficient, standing alone . . . , to prove coverage as a matter

22   of law."   Id.




          11
               The plaintiffs make the same argument regarding the
     Umbrella Policy, but because we conclude in Part IV below that
     the Umbrella Policy was in any event in effect as to the
     plaintiffs for other reasons, we need not reach the question of
     estoppel with respect to that policy.
                                     20
1              However, the Third and Fourth Departments have held

2    that a certificate of insurance can estop an insurance provider

3    from denying coverage where the parties intended to provide

4    coverage to the party seeking it if the certificate was issued by

5    an agent within the scope of its authority, and if the party

6    seeking coverage reasonably relied on the certificate of

7    insurance by, for example, beginning construction work.    See

8    Niagara Mohawk Power Corp. v. Skibeck Pipeline Co., 270 A.D.2d

9    867, 868-69, 705 N.Y.S.2d 459, 460–61 (4th Dep't 2000)

10   (concluding that insurer was bound by certificate of insurance

11   listing the plaintiff as an additional insured, even though

12   another certificate, under which the plaintiff sought coverage,

13   did not list the plaintiff); Bucon, Inc. v. Pa. Mfg. Ass'n Ins.

14   Co., 151 A.D.2d 207, 210–11, 547 N.Y.S.2d 925, 927-28 (3d Dep't

15   1989) (estopping the defendant insurer from denying coverage to

16   the plaintiff where the plaintiff reasonably relied on a

17   certificate of insurance in commencing construction work).    But

18   the Second Department has declined to conclude that an insurer

19   was estopped from denying coverage to a party that was

20   erroneously named on a certificate of insurance.   See Am. Ref-

21   Fuel Co. of Hempstead v. Res. Recycling, Inc., 248 A.D.2d 420,

22   423-24, 671 N.Y.S.2d 93, 96 (2d Dep't 1998) (rejecting estoppel

23   arising from a certificate of insurance where the certificate

24   stated that it was "a matter of information only and confer[red]

25   no rights upon" the plaintiff, and holding that "the doctrine of

26   estoppel may not be invoked to create coverage where none exists

                                    21
1    under the policy").12   The First Department, too, has been

2    reluctant to find estoppel based on a certificate of insurance.

3    See Nicotra Grp., LLC v. Am. Safety Indem. Co., 48 A.D.3d 253,

4    254, 850 N.Y.S.2d 455, 457 (1st Dep't 2008) ("Nor did the

5    certificate of insurance confer additional insured status.");

6    Rodless Props., L.P. v. Westchester Fire Ins. Co., 40 A.D.3d 253,

7    254-55, 835 N.Y.S.2d 154, 155 (1st Dep't 2007) ("We agree . . .

8    that since the certificate of insurance was issued as a matter of

9    information only . . . it is neither proof of insurance nor proof

10   of an oral contract."); Moleon v. Kreisler Borg Florman Gen.

11   Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621, 623 (1st

12   Dep't 2003) (deciding, without reference to estoppel, that

13   certificate of insurance is "insufficient to establish that [the

14   plaintiff] is an additional insured under a policy especially

15   where, as here, the policy itself makes no provision for

16   coverage").




          12
               The plaintiffs attempt to distinguish American Ref-
     Fuel. In that case, the alleged additional insured was named in
     the certificate of insurance but was never named--and was not
     intended to be named--as an additional insured under the terms of
     the insurance contract. Id., 248 A.D.2d at 423-24, 671 N.Y.S.2d
     at 96. However, the court's rejection of estoppel appears to
     have been grounded in the plain language of the certificate
     itself, which, like the certificate at issue in the instant case,
     warned that it was for informational purposes only. Id.
     Mountain Valley's effort to distinguish Bucon is similarly
     unpersuasive, as is its reliance on Taylor v. Kinsella, 742 F.2d
     709 (2d Cir. 1984), a case in which we declined to require
     coverage by virtue of a certificate because, inter alia, in order
     to provide the coverage sought, the certificate would have had to
     expand the scope of the policy it referenced. See id. at 711-12.

                                      22
1               There is reason to conclude that the primary insured--

2    here, Ellicott Maintenance--should bear the burden of ensuring

3    that all the conditions of providing "additional insured" status

4    to those with whom it contracts to provide that status have been

5    met.   At oral argument, counsel for both sides acknowledged that

6    it is not customary for an insurer or for the insurer's agent to

7    see the contract ostensibly requiring a contractor to procure

8    insurance; rather, a certificate of insurance naming the

9    additional insured is issued as a matter of course upon the

10   request of the primary insured.    Nor is there evidence in the

11   record of which we are aware that the plaintiffs ever saw the

12   policy issued to Ellicott Maintenance, or that a party in the

13   plaintiffs' position would typically see such a policy.    The

14   additional insureds did not have a relationship with the insurer

15   that would have given them the right to obtain or question the

16   accuracy of a certificate of insurance.    It is, after all, the

17   primary insured which has explicitly agreed to the execution of

18   the underlying contract as a condition of coverage for additional

19   insureds, which has the ability to seek to obtain that execution

20   prior to the beginning of work pursuant to the contract, and

21   which is otherwise best positioned to assure compliance with the

22   conditions of its insurance.

23              On the other hand, there is a reasonable argument to be

24   made that, disclaimers notwithstanding, an insurer has an

25   obligation not to issue false or potentially misleading

26   certificates of insurance–-or to permit an agent to issue them–-

                                       23
1    if it or the agent is aware the parties may rely upon the

2    certificate despite disclaimers to the contrary.   "[A]n

3    estoppel rests upon the word or deed of one [party] upon which

4    another party rightfully relies and so relying changes his

5    position to his injury."   Nassau Trust Co. v. Montrose Concrete

6    Prods. Corp., 56 N.Y.2d 175, 184, 436 N.E.2d 1265, 1269, 451

7    N.Y.S.2d 663, 667 (1982) (citation and internal quotation marks

8    omitted).   That formulation may well correctly describe the facts

9    here.   Moreover, insurers typically have greater control over the

10   terms of insurance contracts and certificates of insurance than

11   their insureds, along with greater knowledge of the applicable

12   law; estoppel therefore may be appropriate for much the same

13   reason that ambiguities in insurance contracts are construed

14   against insurers.   Cf. Thomas J. Lipton, Inc. v. Liberty Mut.

15   Ins. Co., 34 N.Y.2d 356, 361, 314 N.E.2d 37, 39, 357 N.Y.S.2d

16   705, 708 (1974).    And such a distribution of responsibility may

17   be particularly appropriate in cases, such as this one, where

18   enforcement of the certificate of insurance would not expand the

19   substantive scope of the insurance contemplated by the insurer,

20   but would instead require the insurer to provide the coverage to

21   which the certificate of insurance states it has agreed.    See

22   Bucon, 151 A.D.2d at 210-11, 547 N.Y.S.2d at 927-28.

23               In any event, in light of this diversity of authority

24   among the Appellate Divisions, and of the underlying policy

25   choices involved, on what we think to be a significant issue of

26   state law, and acknowledging the absence of guidance from the

                                      24
1    Court of Appeals, we respectfully certify to the Court the

2    following question:

 3             In a case brought against an insurer in which
 4             a plaintiff seeks a declaration that it is
 5             covered under an insurance policy issued by
 6             that insurer, does a certificate of insurance
 7             by an agent of the insurer that states that
 8             the policy is in force but also bears
 9             language that the certificate is not evidence
10             of coverage, is for informational purposes
11             only, or other similar disclaimers, estop the
12             insurer from denying coverage under the
13             policy?

14             IV.   Coverage Under the Umbrella Policy13

15             The plaintiffs argue that even if they are not covered

16   as additional insureds under the Primary Policy, they are covered

17   under the Umbrella Policy.14   Mountain Valley responds that the

18   Umbrella Policy is limited by the same unfulfilled "execution"

19   requirement as the Primary Policy.   A finding that the plaintiffs

20   were covered by the Umbrella Policy, Mountain Valley asserts,


          13
               In a joint post-argument submission dated October 14,
     2010, the parties confirmed that even though DelPrince's lawsuit
     has been settled, their dispute concerning the applicability of
     the Umbrella Policy is not moot because, "given the particulars
     of the settlement in the underlying action, a finding in this
     case that [the] plaintiffs are entitled to coverage under the
     defendant's umbrella policy would result in [the] defendant
     having to pay under that policy." Letter from Judith Treger
     Shelton, Counsel for the Pls., to the U.S. Court of Appeals for
     the Second Circuit, dated Oct. 14, 2010, 10 Ellicott Square Court
     Corp. v. Mountain Valley Indem. Co., No. 10-0799-CV (2d Cir. Oct.
     14, 2010), ECF No. 71.
          14
               The district court's finding that the Construction
     Agreement had been "executed" compelled its conclusion that the
     plaintiffs were covered under both the Primary and the Umbrella
     Policies. See 10 Ellicott Square Court Corp., 2010 WL 681284, at
     *2, 2010 U.S. Dist. LEXIS 14556, at *5. Because we conclude that
     the Construction Agreement was not "executed," we must consider
     whether the plaintiffs qualify for defense and indemnification
     under the Umbrella Policy.
                                     25
1    would constitute an expansion in coverage in contravention of New

2    York law.    We agree with the plaintiffs.

3                Section 3(c) of the Umbrella Policy provides:   "Any

4    person or organization with whom or with which you have agreed in

5    writing prior to any loss, 'occurrence[,]' or 'offense' to

6    provide insurance such as is afforded by this policy is an

7    insured . . . ."     Fijal Decl. Ex. K at 8 (§ 3(c)).   Pursuant to

8    Section 3(d), "Each person or organization who is an 'insured' in

9    the 'underlying insurance' is an 'insured' under this insurance

10   subject to all the limitations of such 'underlying insurance'

11   other than the limits of the underlying insurer's liability."

12   Id. (§ 3(d)).

13               We conclude that Section 3(c) renders the plaintiffs

14   insureds under the Umbrella Policy.     The policy requires no more

15   than an agreement in writing.     The New York Court of Appeals

16   "ha[s] long held that a contract may be valid even if it is not

17   signed by the party to be charged, provided its subject matter

18   does not implicate a statute . . . that imposes such a

19   requirement."     Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d

20   363, 368, 828 N.E.2d 593, 596 (2005).     "[A]n unsigned contract

21   may be enforceable, provided there is objective evidence

22   establishing that the parties intended to be bound."     Id. at 369,

23   828 N.E.2d at 597.

24               It is undisputed that the parties intended to be bound

25   by the Construction Agreement irrespective of whether and when it

26   was signed.     Under New York law, it was therefore a binding

                                       26
1    agreement prior to its execution.    And it is indisputable that

2    under that agreement, the general contractor was to procure

3    insurance for the plaintiffs.   Nor is there any issue as to the

4    Construction Agreement's requirement that Ellicott Maintenance

5    obtain aggregate insurance coverage for at least five million

6    dollars, and that the Primary Policy had a general aggregate

7    limit of two million dollars.

8              Mountain Valley argues that the Construction Agreement

9    did not require "insurance such as is afforded" by the Umbrella

10   Policy because the Agreement required that Ellicott Maintenance's

11   insurance be in the form of a "primary policy."    But the

12   Agreement required only that Ellicott Maintenance's policy be

13   primary in relation to the plaintiffs' own policies "rather than

14   concurrent" with them.   Fijal Decl. Ex. G at 10 (§ 7(A)(3)).

15             Mountain Valley also contends that because the

16   Construction Agreement did not refer explicitly to umbrella

17   coverage, it did not require Ellicott Maintenance to provide

18   "such insurance as is afforded" by the Umbrella Policy.

19   Appellant's Reply. Br. at 11.   We find no language in the

20   Umbrella Policy to require such specificity.

21             Notwithstanding Section 3(c), Mountain Valley argues

22   that the plaintiffs do not qualify as additional insureds

23   because, under Section 3(d), the Umbrella Policy is "subject to

24   all the limitations" of the Primary Policy.    We need not resolve

25   whether the Primary Policy's execution requirement would preclude

26   the plaintiffs from receiving coverage under Section 3(d) of the

                                     27
1    Umbrella Policy, because the plaintiffs are eligible for coverage

2    pursuant to Section 3(c) irrespective of the effectiveness of the

3    Primary Policy.    Sections 3(c) and 3(d) of the Umbrella Policy,

4    which define who is an insured, provide alternative grounds

5    rather than compound requirements for qualification as an

6    additional insured.    We will not read "and" into the policy to

7    conclude that the plaintiffs must qualify as insureds under both

8    Section 3(c) and Section 3(d).    If they come within the terms of

9    either, they are insureds.    "[C]ourts may not by construction add

10   or excise terms . . . under the guise of interpreting the

11   writing."    Vt. Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d

12   470, 475, 807 N.E.2d 876, 879, 775 N.Y.S.2d 765, 768 (2004)

13   (citation and internal quotation marks omitted).    We therefore

14   conclude that Mountain Valley is bound to provide coverage to the

15   plaintiffs under Section 3(c) of the Umbrella Policy.

16               Although our conclusion rests on a ground not

17   considered by the district court, we may "affirm a decision on

18   any grounds supported in the record, even if it is not one on

19   which the trial court relied."    Thyroff v. Nationwide Mut. Ins.

20   Co., 460 F.3d 400, 405 (2d Cir. 2006).    We do so here.

21               V. Certification to the New York Court of Appeals

22               The rules of this Court provide that "[i]f state law

23   permits, the court may certify a question of state law to that

24   state's highest court."    2d Cir. Local R. 27.2; see also Penguin

25   Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 41-42 (2d Cir. 2010).

26   "Although the parties did not request certification, we are

                                      28
1    empowered to seek certification nostra sponte."      Kuhne v. Cohen &

2    Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009).      Whether to

3    certify is discretionary, Am. Buddha, 609 F.3d at 41, and is

4    principally guided by three factors.

5                First, "certification may be appropriate if the New

6    York Court of Appeals has not squarely addressed an issue and

7    other decisions by New York courts are insufficient to predict

8    how the Court of Appeals would resolve it."      Id. at 42; see also

9    O'Mara v. Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007);

10   Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc.,

11   344 F.3d 211, 220-21 (2d Cir. 2003); N.Y. Comp. Codes R. & Regs.

12   tit. 22, § 500.27(a) (2008).    As discussed above, there is a

13   "split of authority,"    Blue Cross, 344 F.3d at 221, regarding

14   whether a certificate of insurance can be enforced through

15   estoppel:    "[T]wo competing lines of cases deal[] with the issue

16   here," and the New York Court of Appeals has not decided which is

17   correct.    Am. Buddha, 609 F.3d at 42.    In the absence of

18   direction from the state's highest court, we "cannot harmonize"

19   the divergent intermediate court decisions.      Carney v.

20   Philippone, 332 F.3d 163, 172 (2d Cir. 2003).      Nor can we predict

21   any better than the Departments of the Appellate Division how the

22   Court of Appeals would resolve the question.

23               Second, the question on which we certify must be of

24   "importance . . . to the state,"      O'Mara, 485 F.3d at 698, and

25   its resolution must "require[] value judgments and important

26   public policy choices that the New York Court of Appeals is

                                      29
1    better situated than we to make," Am. Buddha, 609 F.3d at 42;

2    accord Bessemer Trust Co. v. Branin, 618 F.3d 76, 93 (2d Cir.

3    2010).   We think that the New York Court of Appeals is better

4    positioned than we to weigh who should properly bear the burden

5    under New York law of confirming that coverage exists before

6    issuing a certificate of insurance that purports to evidence such

7    coverage.

8                Third, we may certify if the question is

9    "'determinative' of a claim before us."    O'Mara, 485 F.3d at 698

10   (quoting    N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a)); see

11   also Prats v. Port Auth. of N.Y. & N.J., 315 F.3d 146, 150–51 (2d

12   Cir. 2002) (certifying "unsettled" question of state law).    Here,

13   whether the plaintiffs receive coverage under the Primary Policy,

14   and therefore the extent to which the plaintiffs will be

15   indemnified for their defense in DelPrince's action, rests on

16   resolution of the certified question.

17               We therefore certify a question to the New York Court

18   of Appeals and reserve decision on this point pending that

19   Court's action.

20                                CONCLUSION

21               For the foregoing reasons, we certify the following

22   question to the New York Court of Appeals:

23               In a case brought against an insurer in which
24               a plaintiff seeks a declaration that it is
25               covered under an insurance policy issued by
26               that insurer, does a certificate of insurance
27               issued by an agent of the insurer that states
28               that the policy is in force but also bears
29               language that the certificate is not evidence
30               of coverage, is for informational purposes
                                       30
1              only, or other similar disclaimers, estop the
2              insurer from denying coverage under the
3              policy?

4    As is our practice, we do not intend to limit the scope of the

5    Court of Appeals' analysis through the formulation of our

6    question, and we invite the Court of Appeals to expand upon or

7    alter this question as it should deem appropriate.   See Am.

8    Buddha, 609 F.3d at 42–43; Kirschner v. KPMG LLP, 590 F.3d 186,

9    195 (2d Cir. 2009).

10             Pursuant to New York Court of Appeals Rule 500.17 and

11   United States Court of Appeals for the Second Circuit Rule 27.2,

12   it is hereby ORDERED that the Clerk of this Court transmit to the

13   Clerk of the Court of Appeals of New York this opinion as our

14   certificate, together with a complete set of the briefs,

15   appendix, and record filed in this Court by the parties.    We

16   direct the parties to bear equally any fees and costs that may be

17   imposed by the New York Court of Appeals in connection with this

18   certification.   This panel will retain jurisdiction over the

19   appeal after disposition of this certification by the New York

20   Court of Appeals.

21             We affirm the district court's grant of summary

22   judgment to the plaintiffs with respect to coverage under the

23   Umbrella Policy.    We reserve decision as to the district court's

24   grant of summary judgment to the plaintiffs with respect to

25   coverage under the Primary Policy pending the New York Court of

26   Appeals' decision as to whether to answer the question we



                                      31
1   certify, and if it decides to do so, until its judgment in the

2   matter is final.




                                   32
