     11-3670 (L)
     Quaker Hills, LLC v. Pacific Indemnity Co.


 1                                UNITED STATES COURT OF APPEALS

 2                                      FOR THE SECOND CIRCUIT

 3                                                   ------

 4                                             August Term, 2012

 5   (Argued: November 13, 2012                                                Decided: August 29, 2013 )

 6                               Docket Nos. 11-3670 (Lead) 11-3780 (XAP)

 7   _________________________________________________________

 8   QUAKER HILLS, LLC,

 9                                  Plaintiff-Appellee-Cross-Appellant,

10                                                  - v. -

11   PACIFIC INDEMNITY CO.,

12                           Defendant-Appellant-Cross-Appellee.
13   _________________________________________________________

14   Before: KEARSE, WINTER, and POOLER, Circuit Judges.

15                  Appeal and cross-appeal from a judgment of the United States District Court for the

16   Southern District of New York, Deborah A. Batts, Judge, declaring defendant insurer liable for the

17   full amount of loss coverage shown in a fire insurance policy, notwithstanding an apportionment-of-

18   loss clause in the policy stating that the insurer would pay only 38 percent of any loss, and ruling that

19   defendant is not liable for replacement costs in excess of the loss coverage shown in the policy. See

20   2011 WL 4343368 (Aug. 15, 2011).

21                  AFFIRMED in part; CERTIFIED in part to the Court of Appeals for the State of New

22   York.
 1                          DENNIS T. D'ANTONIO, New York, New York (Joshua L. Mallin,
 2                          Weg & Myers, New York, New York, on the brief), for Plaintiff-
 3                          Appellee-Cross-Appellant.

 4                          JOHN A. NOCERA, New York, New York (John P. Foudy, Rosner
 5                          Nocera & Ragone, New York, New York), for Defendant-Appellant-
 6                          Cross-Appellee.



 7   KEARSE, Circuit Judge:

 8                  Defendant Pacific Indemnity Co. ("Pacific"), which issued a $14,388,000 fire insurance

 9   policy to plaintiff Quaker Hills, LLC ("Quaker Hills"), on a custom-built home that was destroyed by

10   fire during the policy period, appeals from so much of a final judgment of the United States District

11   Court for the Southern District of New York, Deborah A. Batts, Judge, as granted summary judgment

12   to Quaker Hills on its claim for a declaratory judgment that an apportionment-of-loss clause in the

13   policy, purporting to reduce Pacific's total liability to 38 percent of any covered loss, is void as a

14   matter of New York law, and that Pacific is liable to Quaker Hills for the entire amount of loss

15   coverage shown in the fire insurance policy. Quaker Hills cross-appeals from so much of the

16   judgment as ruled that it is not entitled to recover replacement costs in excess of the stated loss

17   coverage amount on the house. For the reasons that follow, we reject Quaker Hills's arguments on

18   the cross-appeal; on the appeal, we certify to the Court of Appeals for the State of New York

19   questions as to whether the apportionment-of-loss clause in the fire insurance policy is enforceable

20   under New York law.

21




                                                      -2-
 1                                           I. BACKGROUND



 2                  At all pertinent times, Quaker Hills, a limited liability company incorporated in New

 3   York, owned real property in Pawling, New York, on which its principal, Trevor Davis, a Manhattan-

 4   based real estate developer, built a home in or about 2005. In March 2009, the home was destroyed

 5   by fire, a loss covered by a homeowner's insurance policy (the "Applicable Policy" or "Policy") issued

 6   to Quaker Hills by Pacific. The following description of the Policy, together with its several

 7   antecedent policies and its history, is taken largely from the Memorandum and Order of the district

 8   court, reported at 2011 WL 4343368 (Aug. 15, 2011). The court's description, which unless otherwise

 9   noted below is not substantially in dispute, was based on statements by the parties filed pursuant to

10   Rule 56.1 of the Local Rules for the Southern District in connection with each side's motion for

11   summary judgment.



12   A. The Insurance Policies

13                  Quaker Hills first obtained homeowner's insurance from Pacific on the home and its

14   contents for a one-year period beginning in December 2005. The coverage limits were $10,000,000

15   for the dwelling and $4,000,000 for the contents. See 2011 WL 4343368, at *1. The premium charge

16   for this first policy was $50,273. See id.

17                  In August 2006, Pacific obtained an insurance replacement cost appraisal that indicated

18   that the home's replacement value was $13,302,000. See id. Intermediaries in the various dealings

19   between Quaker Hills and Pacific prior to 2008 with regard to the subsequent policies covering the



                                                      -3-
 1   home included insurance broker Haskell Brokerage Corp. ("Haskell") and a company called C & S

 2   Planning, to which Davis's father-in-law Irwin Cohen was a consultant. In early October 2006,

 3   Haskell informed Cohen that the existing policy would be canceled on October 14. (Pacific contends

 4   that the reason was nonpayment of premium then due; Quaker Hills does not dispute that Haskell so

 5   informed Cohen, but does dispute the reason.) The record does not indicate that the first policy was

 6   in fact canceled. Indeed, Quaker Hills shortly received valuation questions with respect to a renewed

 7   policy:

 8                  On October 13, 2006, Janice Collins of C & S Planning emailed Davis'
 9                  assistant Delia [sic] Mitchell seven questions to answer concerning the "re-
10                  write" of the [existing p]olicy. . . . On October 18, 2006, Collins forwarded to
11                  Haskell's Ed Redbord a fax cover note enclosing the email with Davis'
12                  handwriting on it, and stated in her cover memo: "Ed, as per our conversation--
13                  This is what Trevor wrote on it. Janice". . . . In this email, Davis answered the
14                  first five questions regarding the value of various contents of the house by
15                  placing zeros next to them. . . . For the final question, reading "desired amount
16                  of replacement coverage you want for dwelling? (appraised @ $13,000,000 at
17                  August appraisal)," Davis wrote "5,000,000." . . . . Davis does not dispute that
18                  he made these notations; however, he claims these were not answers to the
19                  questions since he had no way of knowing what the estimated value of the
20                  items was.

21   2011 WL 4343368, at *1 (emphases added).

22                  In November 2006, Pacific issued a renewal policy ("Second Policy") for the period

23   December 15, 2006 to December 15, 2007, which provided coverage for the dwelling in the amount

24   of $13,302,000--reflecting the recent appraisal--and no coverage for the home's contents. See id.

25   at *2. The stated premium for the Second Policy was $50,273. However, Pacific "also added a 38%

26   apportionment of loss clause," to this policy, id., which stated as follows:

27                  IN THE EVENT OF A COVERED LOSS TO YOUR HOUSE, OTHER
28                  PERMANENT STRUCTURE(S) OR CONTENTS, INCLUDING ALL


                                                      -4-
 1                  RELATED COVERAGES FOR YOUR HOUSE AND CONTENTS, THE
 2                  AMOUNT OF THE COVERED LOSS WILL BE APPORTIONED
 3                  BETWEEN YOU AND US AS FOLLOWS. FIRST, WE WILL APPLY THE
 4                  BASE OR ANY APPLICABLE SPECIAL DEDUCTIBLE TO THE
 5                  AMOUNT OF THE COVERED LOSS. SECOND, WE WILL PAY 38% OF
 6                  THE AMOUNT OF THE COVERED LOSS REMAINING AFTER THE
 7                  APPLICATION OF THE BASE OR SPECIAL DEDUCTIBLE. . . . THE
 8                  REMAINING 62% OF A COVERED LOSS TO YOUR HOUSE . . . IS THE
 9                  AMOUNT APPORTIONED TO YOU.

10   (Second Policy, Coverage Update, at 2-3 (emphasis added).) This "mean[t] that [Pacific's] alleged

11   maximum liability for a covered loss would be $5,054,720 (38% of the stated coverage amount of

12   $13,302,000)," 2011 WL 4343368, at *2; and Quaker Hills's premium was reduced from $50,273 to

13   $20,777, see id. The district court noted that Pacific "claim[ed] it added the apportionment of loss

14   clause to provide approximately the requested $5,000,000 in coverage," and that Quaker Hills

15   "denie[d] ever requesting less than full coverage under the policy." Id.

16                  On January 14, 2007, that Second Policy was canceled for nonpayment of premium.

17   Coverage was not restored until June 20, 2007. At Plaintiff's request, a new policy ("Third Policy")

18   was issued, effective June 20, 2007, through June 20, 2008. The Third Policy "also contained a 38%

19   apportionment of loss clause and the total premium was $22,633." Id.

20                  Before the end of the period covered by the Third Policy, a fourth policy was issued,

21   "effective January 17, 2008 through January 17, 2009, . . . . contain[ing] the same 38% apportionment

22   of loss clause as the [third p]olicy." Id. The fourth policy "had a policy limit of $14,388,000." Id.

23   It also contained an "Extended Replacement Cost" coverage provision (versions of which had also

24   been included in the Second and Third policies) pursuant to which, under certain conditions, Pacific

25   would pay all reconstruction costs, "even if this amount is greater than the amount of coverage for



                                                      -5-
 1   your house shown in your Coverage Summary," id. at *6 (internal quotation marks omitted).

 2   However, Pacific's obligation under that provision was limited, in part, as follows:

 3                    If you cannot repair, replace or rebuild your house because your primary
 4                    mortgagee or its assignees has recalled your mortgage, we will pay the
 5                    reconstruction cost up to the amount of coverage shown in the Coverage
 6                    Summary for your house, minus what is due to the mortgagee.

 7   Id. (internal quotation marks omitted). This fourth policy "was renewed for another year running from

 8   January 18, 2009 through January 18, 2010," id. at *2, and contained the terms of the Policy in effect

 9   at the time of the fire that destroyed the home.

10                    After the fire, Quaker Hills submitted a timely claim to Pacific, seeking more than

11   $26.5 million in losses and extended replacement costs. Pacific refused to pay extended replacement

12   costs and refused to pay more than 38 percent of the $14,388,000 stated loss coverage. The home was

13   never rebuilt.

14                    In September 2009, Bank of America (the "Bank"), which held the mortgage to the

15   property, commenced a foreclosure action with respect to the home. Thereafter, Quaker Hills and the

16   Bank entered into a Standstill and Forbearance Agreement, in which Quaker Hills acknowledged that

17   it was in default and the Bank agreed to delay demanding full payment of the outstanding mortgage.

18   Pacific agreed to pay directly to the Bank the amount that Pacific conceded was owed under the

19   policy, i.e., approximately $5.5 million, or 38 percent of the stated coverage amount. See 2011 WL

20   4343368, at *2-*3.

21




                                                        -6-
 1   B. The Present Action

 2                  Quaker Hills commenced the present action in the district court, with jurisdiction

 3   premised on diversity of citizenship, alleging that Pacific breached the insurance contract by refusing

 4   to pay the full stated amount of loss coverage in the Policy, i.e., $14,388,000, and to pay replacement

 5   costs. Quaker Hills sought a declaratory judgment to that effect, along with damages totaling

 6   approximately $26.5 million including the replacement costs. In support of its claim for payment of

 7   the full amount of loss coverage, Quaker Hills asserted, inter alia, that the Policy's apportionment-of-

 8   loss clause is unenforceable in New York State (the "State") because it does not conform to the

 9   minimum requirements imposed by New York law as reflected in the State's Standard Fire Insurance

10   Policy.

11                  Pacific opposed Quaker Hills's challenge to the apportionment-of-loss clause,

12   contending, inter alia, that such clauses are analogous to enforceable co-insurance clauses, and that,

13   in any event, Davis had specifically insisted on the apportionment-of-loss clause in order to reduce

14   the premiums payable on the policies. Pacific opposed Quaker Hills's claim for replacement costs on

15   the ground that Quaker Hills had not been able to rebuild the house because its mortgage on the

16   property had been recalled. Following discovery, each side moved for summary judgment.

17                  In its Memorandum and Order dated August 15, 2011, the district court, after

18   describing the events as set forth in Part I.A. above, granted the motion of Quaker Hills in so far as

19   it sought a declaration that the Policy's apportionment-of-loss clause was void under New York law

20   and that Quaker Hills was entitled to $14,388,000. See 2011 WL 4343368, at *6. The court denied

21   the motion of Pacific to dismiss the complaint or limit Quaker Hills's recovery to 38 percent of that

22   amount. The court also rejected Quaker Hills's claim for replacement costs. See id.


                                                       -7-
 1           1.      The District Court's Ruling as to the Stated Amount of Loss Coverage

 2                   As to the apportionment-of-loss clause, the district court stated that "[a]lthough the

 3   parties dispute whether Davis consented to the apportionment of loss clause," and although "the

 4   factual record is clear that he at worst initiated, and at best was aware of and assented to its inclusion

5    in the policy," his "initiation or consent to the clause [wa]s irrelevant" "because the clause is void as

6    a matter of law under New York law." 2011 WL 4343368, at *2 n.1. The district court noted that

7    New York law has codified a Standard Fire Insurance Policy that sets minimum coverage standards

 8   for such policies, see N.Y. Ins. Law § 3404 (McKinney 2011), and that "a fire insurance policy must

 9   include 'terms and provisions no less favorable to the insured than those contained in the standard fire

10   policy,'" 2011 WL 4343368, at *4 (quoting § 3404(f)(1)(A)). Although an insurance company is free

11   to offer the insured terms that are more favorable than the mandated minima,

12                   a policy [that] contains a less favorable term[ than the minimum provided in
13                   the State's standard fire policy] "is enforceable as if it conformed to the
14                   statutory standard." 1303 Webster Ave. Realty Corp. v. Great Am. Surplus
15                   Lines Ins. Co., 63 N.Y.2d 227, 231, 481 N.Y.S.2d 322, 323, 471 N.E.2d 135
16                   (1984); see also SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props., L.L.C., 381
17                   F.Supp.2d 250, 257 (S.D.N.Y.2005).

18   2011 WL 4343368, at *4. The district court noted the statutory minima set out in § 3404(e), which

19   provides that the insurer must insure the insured

20                   TO THE LESSER AMOUNT OF EITHER:

21                        1) THE ACTUAL CASH VALUE OF THE PROPERTY AT THE
22                   TIME OF THE LOSS, OR

23                        2) THE AMOUNT WHICH IT WOULD COST TO REPAIR OR
24                   REPLACE THE PROPERTY WITH MATERIAL OF LIKE KIND AND


                                                        -8-
 1                   QUALITY WITHIN A REASONABLE TIME AFTER SUCH LOSS,
 2                   WITHOUT ALLOWANCE FOR ANY INCREASED COST OF REPAIR OR
 3                   RECONSTRUCTION BY REASON OF ANY ORDINANCE OR LAW
 4                   REGULATING CONSTRUCTION OR REPAIR, AND WITHOUT
 5                   COMPENSATION FOR LOSS RESULTING FROM INTERRUPTION OF
 6                   BUSINESS OR MANUFACTURE, OR

 7                           3) TO AN AMOUNT NOT EXCEEDING _________ DOLLARS . . . .

 8   N.Y. Ins. Law § 3404(e). The district court thus stated that under "New York's Standard Fire

 9   Insurance Policy, . . . the policy must at least provide the lesser of either [1] the actual cash value of

10   the property at the time of loss; [2] the replacement cost; or [3] the value of the property as

11   predetermined in the policy." 2011 WL 4343368, at *4 (emphases added). The court noted that

12                   [t]he third provision in the New York Standard Fire Policy allows for valued
13                   policies. Nichols v. Hartford Fire Ins. Co., 61 A.D.2d 555, 557, 403 N.Y.S.2d
14                   335, 336-37 (N.Y.App.Div.1978); see also N.Y. Pattern Jury Instructions
15                   § 4:49. A valued policy is one in which the value of the property covered by
16                   the policy is predetermined by the parties so that in the event of a total loss, it
17                   is not necessary to prove the actual value, and the agreed-upon value is
18                   conclusive unless there has been fraud or mistake. Id.

19   2011 WL 4343368, at *4 n.5 (emphasis added).

20                           Therefore, New York's Standard Fire Policy, "clearly sets a minimum
21                   floor of the lesser of the three options," Woodhams v. Allstate Fire and Cas.
22                   Co., 748 F.Supp.2d 211, 217 (S.D.N.Y.2010) (emphasis added), and the policy
23                   must at least provide the lesser of either the actual cash value of the property
24                   at the time of loss; the replacement cost; or the value of the property as
25                   predetermined in the policy.

26   2011 WL 4343368, at *4. In the present case,

27                            [t]he [Applicable] Policy, . . . in effect at the time of the fire loss,
28                   provides coverage for a loss up to $14,388,000, with an extended replacement
29                   cost provision, which would allow a homeowner to collect the replacement
30                   cost if certain conditions precedent were met. Hence, the [Applicable] Policy
31                   in its unmodified form meets the minimum standards of the Standard Fire
32                   Insurance Policy by providing the replacement cost of the property. However,


                                                        -9-
 1                   with the apportionment of loss clause, the [Applicable] Policy provides
 2                   substantially less coverage than the minimum, by providing only 38% of the
 3                   replacement cost.

 4   Id. (emphases added).

 5                   The district court stated that it was "unable to find specific case law in New York that

 6   addressed anything like the apportionment of loss clause here"; but the court found it "clear" that the

 7   apportionment-of-loss clause in the Policy was "a less favorable term than New York's Standard Fire

 8   Policy." Id. at *5. Thus, the court concluded that the Policy's apportionment-of-loss clause was void

 9   as a matter of New York law, and that the Policy must be enforced as if its terms complied with the

10   statute. See id. at *6.

11                            What the parties got with the [Applicable] Policy was a fire policy that,
12                   on its face, had a policy limit of $14,388,000. However, the apportionment of
13                   loss clause did nothing other than reduce that policy limit of $14,388,000 by
14                   62%--to $5,467,440--and allow [Quaker Hills] to pay 62% less in
15                   premiums. . . . While the Court is faced with the inequity of allowing [Quaker
16                   Hills] to recover on a cont[r]act Davis not only agreed to, but asked for, the
17                   62% sleight of hand by the parties here is not supported by the New York[]
18                   Standard Fire Policy, or otherwise by New York law. Given that this case
19                   implicates the highly regulated insurance industry, here the insurance company
20                   loses.

21   2011 WL 4343368, at *5; see id. at *6 ("As the apportionment of loss clause is inconsistent with the

22   minimum coverage required by New York law, the apportionment of loss clause is deemed void, and

23   the [Applicable] Policy will be enforceable as if it conformed to the statutory standards.").

24                   Although Pacific contended that the apportionment-of-loss clause was not void because

25   it was analogous to co-insurance clauses, which New York courts have upheld as valid, see Aldrich

26   v. Great American Insurance Co., 195 A.D. 174, 186 N.Y.S. 569 (1st Dep't 1921), the district court

27   rejected the analogy. The district court read the New York cases as finding co-insurance clauses

28   viable only where the insured suffered a partial, rather than a total, loss:

                                                       -10-
 1                          A co-insurance clause divides the risk between the insurer and the
 2                  insured in the event of a partial loss if the insured has failed to carry insurance
 3                  up to a certain percentage of the value of the property, typically 80%. See
 4                  N.Y. Life Ins. Co. v. Glen Falls Ins. Co., 184 Misc. 846, 55 N.Y.S.2d 176,
 5                  178-79 (N.Y.Sup.Ct.1945), aff'd, 274 A.D. 1045, 86 N.Y.S.2d 191 (N.Y.App.
 6                  Div. 1st Dep't 1949), aff'd, 301 N.Y. 506, 93 N.E.2d 73 (1950) (explaining
 7                  how co-insurance clauses operate and why insurers use them); see also Couch
 8                  on Ins. 3rd Ed. ("Coinsurance: clause in property insurance requiring that the
 9                  property be insured for a minimum percentage of its total value and making the
10                  insured a [']coinsurer['] to the extent that the coverage falls below the specified
11                  minimum."). The purpose of co-insurance, therefore, is to protect homeowners
12                  by encouraging them to value fairly their own property, and not undervalue it
13                  in order to receive a lower premium. Id. at 179, 93 N.E.2d 73; Aldrich, 186
14                  N.Y.S. at 576.

15   2011 WL 4343368, at *5 (emphasis added). The court stated that

16                          [a]lthough the apportionment of loss clause in the present case also
17                  divides the risk between the insurer and the insured, it is fundamentally
18                  different from a co-insurance clause. First, all of the cases containing a
19                  co-insurance clause involved a partial loss, not a total loss. Second, unlike a
20                  coinsurance clause, which is designed to encourage homeowners to value
21                  properly their property, the apportionment of loss clause here has no real
22                  purpose other than to make a $5,467,440 policy appear to be a $14,388,000
23                  policy. Thus, the apportionment of loss clause is not analogous to a valid
24                  co-insurance clause.

25   Id. at *6 (emphasis added).



26          2. The District Court's Ruling as to Replacement Costs

27                  The district court rejected Quaker Hills's claim for replacement costs, ruling that the

28   Bank's commencement of the foreclosure constituted a "recall" of the mortgage within the meaning

29   of the Policy, which, under the limitations stated in the "Extended Replacement Cost" provision,

30   relieved Pacific of the obligation to pay such costs. The court noted that although Quaker Hills

31   disputed that the mortgage had been "recalled," the Policy itself stated that it "use[s] words in their

32   plain English meaning." Id. at *6 n.7 (internal quotation marks omitted).

                                                       -11-
1                   The Court therefore understands "recall" to have its ordinary meaning of
2                   "Cancel, revoke." "Recall," The Free Merriam-Webster Dictionary,
3                   http://www.merriam-webster.com/dictionary/recall (last visited July 22, 2011).
4                   Bank of America has undisputedly issued Plaintiff default notices demanding
5                   payment in full of all mortgage debts, thereby cancelling or revoking their loan
6                   to Plaintiff.

7    2011 WL 4343368, at *6 n.7.



 8          3. The Judgment

 9                  A final judgment was entered, with no specification of the dollar amount that Quaker

10   Hills is entitled to recover and without mention of replacement costs. The judgment stated as follows:

11                          Defendant having moved for summary judgment on both of Plaintiff's
12                  claims, seeking dismissal of the complaint in its entirety, or in the alternative,
13                  dismissing the complaint to the extent recovery is sought by Plaintiff above
14                  Defendant's 38% apportioned share of the loss under the insurance policy;
15                  Plaintiff having cross-moved for summary judgment, and the matter having
16                  come before the Honorable Deborah A. Batts, United States District Judge,
17                  and the Court, on August 15, 2011, having rendered its Memorandum and
18                  Order granting Plaintiff's motion for summary judgment seeking a declaratory
19                  judgment on Defendant's liability to Plaintiff under the fire policy; granting
20                  Plaintiff's motion for summary judgment declaring the apportionment of loss
21                  clause void, and denying Defendant's motion for summary judgment in its
22                  entirety, it is,

23                           ORDERED, ADJUDGED AND DECREED: That for the reasons
24                  stated in the Court's Memorandum and Order dated August 15, 2011, Plaintiff's
25                  motion for summary judgment seeking a declaratory judgment on Defendant's
26                  liability to Plaintiff under the fire policy is granted; Plaintiff's motion for
27                  summary judgment declaring the apportionment of loss clause void is also
28                  granted; and Defendant's motion for summary judgment is denied in its
29                  entirety, accordingly, the case is closed.

30   Judgment dated August 18, 2011 ("Judgment").

31                  Quaker Hills wrote to the district court on September 1 and 12, 2011, indicating a need

32   for a corrected judgment to state the precise amount Quaker Hills is entitled to collect from Pacific


                                                      -12-
 1   on the Policy (after crediting Pacific with its payment on Quaker Hills's mortgage), and to award

 2   Quaker Hills prejudgment interest. On September 12, Pacific filed its notice of appeal from the

 3   judgment. On September 16, the district court ordered that the docket be reopened; and it stated that

 4   all proposed motions would be held in abeyance pending resolution of the appeal.



 5                                              II. DISCUSSION



 6                   Quaker Hills has cross-appealed from so much of the judgment as implicitly denies its

 7   claim for replacement costs. We affirm the district court's denial of the claim for replacement costs

 8   substantially for the reasons stated in the district court's Memorandum and Order, see Part I.B.2.

 9   above.

10                   Pacific has appealed from so much of the judgment as declares that the Policy's

11   apportionment-of-loss clause is void and that Pacific is not entitled to a reduction of its liability to 38

12   percent of the stated loss coverage amount in the Policy. It also challenges a ruling by the district

13   court that rejected materials proffered by Pacific after the court's deadline for discovery had passed.

14   As Pacific has not shown that the court's discovery ruling was an abuse of discretion, we decline to

15   disturb it, and we decline to consider the materials belatedly submitted. We write to address the issue

16   of the Policy's apportionment-of-loss clause, and to certify questions concerning that issue to the

17   Court of Appeals for the State of New York.




                                                        -13-
 1   A. The New York Standard Fire Insurance Policy

 2                  Certain aspects of New York's insurance laws are relatively clear. New York law

 3   specifies alternative minimum levels of coverage that must be provided in fire insurance policies for

 4   insured parties in the State. As indicated above, § 3404 of the New York Insurance Law provides,

 5   in subsection (e), a form "known and designated as the 'standard fire insurance policy of the state of

 6   New York.'" N.Y. Ins. Law § 3404(a). The form ("Standard Form" or "New York Standard Form")

 7   states that the insurer "does insure" the insured

 8                  TO THE LESSER AMOUNT OF EITHER:

 9                       1) THE ACTUAL CASH VALUE OF THE PROPERTY AT THE
10                  TIME OF THE LOSS, OR

11                       2) THE AMOUNT WHICH IT WOULD COST TO REPAIR OR
12                  REPLACE THE PROPERTY WITH MATERIAL OF LIKE KIND AND
13                  QUALITY WITHIN A REASONABLE TIME AFTER SUCH LOSS,
14                  WITHOUT ALLOWANCE FOR ANY INCREASED COST OF REPAIR OR
15                  RECONSTRUCTION BY REASON OF ANY ORDINANCE OR LAW
16                  REGULATING CONSTRUCTION OR REPAIR, AND WITHOUT
17                  COMPENSATION FOR LOSS RESULTING FROM INTERRUPTION OF
18                  BUSINESS OR MANUFACTURE, OR

19                          3) TO AN AMOUNT NOT EXCEEDING _________ DOLLARS . . . .

20   Id. § 3404(e). Option "3)" allows the owner and the insurer to disregard the property's actual value

21   and agree to have the policy specify instead the amount the insurer will pay the insured in the event

22   that the property is totally destroyed. "Where the parties have agreed upon the value of the insured

23   property in the event of future loss, the policy is said to be a valued policy," Nichols v. Hartford Fire

24   Insurance Co., 61 A.D.2d 555, 557, 403 N.Y.S.2d 335, 336 (3d Dep't 1978) ("Nichols"); and "if it be

25   decided that the loss was total, then under the valued policy the plaintiff would be entitled to receive



                                                         -14-
 1   the amount of the policy," Lee v. Hamilton Fire Insurance Co., 251 N.Y. 230, 235, 167 N.E. 426, 426

 2   (1929). Specification of such an amount generally, absent fraud or mistake, relieves the parties, where

 3   the loss is total, of the need to determine either the property's actual cash value at the time of loss or

 4   the cost of replacing the property. See, e.g., Nichols, 61 A.D.2d at 557, 403 N.Y.S.2d at 336-37.

 5                   With exceptions that are not pertinent here, the statute provides that

 6                   [n]o policy or contract of fire insurance shall be made, issued or delivered by
 7                   any insurer or by any agent or representative thereof, on any property in this
 8                   state, unless it shall conform as to all provisions, stipulations, agreements and
 9                   conditions with such form of policy . . . .

10   N.Y. Ins. Law § 3404(b)(1) (emphases added). Thus, while an insurer is free to deviate from the New

11   York Standard Form by providing terms that are more favorable, see, e.g., 1303 Webster Ave. Realty

12   Corp. v. Great American Surplus Lines Insurance Co., 63 N.Y.2d 227, 231, 481 N.Y.S.2d 322, 323

13   (1984) ("Webster") (although the Standard Form allows the insurer to require that an action on the

14   policy be brought within a two-year period, the insurer may permissibly omit reference to any

15   limitations period and thereby allow such an action to be brought within the general statutory six-year

16   limitations period for an action on a contract), a fire insurance policy must include "terms and

17   provisions no less favorable to the insured than those contained in the standard fire policy," N.Y. Ins.

18   Law § 3404(f)(1)(A) (emphasis added). Accordingly, "[t]he standard policy is the minimum level of

19   coverage permissible for an insurance company to issue." Lane v. Security Mutual Insurance Co., 96

20   N.Y.2d 1, 5, 724 N.Y.S.2d 670, 671 (2001) ("Lane"); see also Woodhams v. Allstate Fire & Casualty

21   Co., 748 F.Supp.2d 211, 217 (S.D.N.Y. 2010) ("The standard policy . . . clearly sets a minimum floor

22   of the lesser of the [Standard Form's] three options.").




                                                       -15-
1                   Where a policy contains one or more terms that are less favorable than those in the

2    Standard Form, New York courts have held that the policy "is enforceable as if it conformed to the

3    statutory standard," i.e., it is enforced as if the violative provision were not included. Webster, 63

 4   N.Y.2d at 231, 481 N.Y.S.2d at 323; see, e.g., Tag 380, LLC v. ComMet 380, Inc., 10 N.Y.3d 507,

 5   514, 860 N.Y.S.2d 433, 437 (2008) ("Tag"). In Webster, the issue was the timeliness of an action

 6   brought to recover on a policy that provided a one-year limitations period despite the Standard Form's

 7   provision of a two-year period. Although the court concluded that the action was untimely, it ruled

 8   that the action was properly dismissed on the basis of the statute, not on the basis of the policy as

 9   written. See id. at 231, 481 N.Y.S.2d at 323. In Lane, the controversy involved the scope of a policy

10   provision for an exclusion from coverage; the New York Court of Appeals ruled that the exclusion

11   was unenforceable as written because the policy's exclusionary term--"an insured"--was broader than

12   the term "the insured" in the Standard Form:

13                  [T]he "an insured" language contained in defendant's policy offers an innocent
14                  party significantly less coverage than the language "the insured". Since the
15                  latter phrase is that adopted by the Legislature in the Insurance Law, use of the
16                  former violates that statute's requirement that all fire policies offer the level of
17                  coverage provided in the standard policy.

18   96 N.Y.2d at 5, 724 N.Y.S.2d at 672 (other internal quotation marks omitted). See also Tag, 10

19   N.Y.3d at 514-15, 860 N.Y.S.2d at 437-38 (holding that a policy provision expressly precluding

20   liability for damages caused by "terrorism" was inconsistent with the Standard Policy, which does not

21   provide for such an exclusion).




                                                       -16-
 1   B. New York Cases Dealing with Co-Insurance Clauses

 2                   In Aldrich v. Great American Insurance Co., 195 A.D. 174, 186 N.Y.S. 569 (1st Dep't

 3   1921) ("Aldrich"), the Appellate Division confronted a challenge to an "eighty per cent average or

 4   coinsurance clause," id. at 174, 186 N.Y.S. at 569-70, providing for the division of risk between the

 5   insurer and the insured where the insured had procured coverage for less than the full value of the

 6   property.

 7                   In other words, if the insurance represents eighty per cent or more of the value
 8                   at the time of the loss of all the property insured, full recovery of the loss may
 9                   be had; but if the insurance is for less than eighty per cent of such value, then
10                   the recovery is limited to the proportion of the loss which the amount of the
11                   insurance bears to eighty per cent of the value at the time of the loss of all the
12                   property insured.

13   Id. at 176; 186 N.Y.S. at 570-71. The Aldrich court found such clauses to be consistent with New

14   York's laws and public policy, noting that "they merely require the [insured], as a condition of

15   receiving a lower premium rate, to stand part of the loss himself, where he does not take out full

16   insurance or insurance to the percentage of the value specified." Id. at 183, 186 N.Y.S. at 576. Such

17   clauses allow "insurance companies to charge depend[ing] upon the premiums received and losses

18   sustained by them." Id., 186 N.Y.S. at 575. In finding that the clause was consistent with the New

19   York standard fire policy that was in force at that time, the Aldrich court noted that "if the Legislature

20   intended to . . . prohibit such agreements for average or coinsurance, there would have been embodied

21   in the statute or in the standard policy some provision clearly expressing or manifesting such intent."

22   Id. at 185, 186 N.Y.S. at 577.

23                   Subsequently in New York Life Ins. Co. v. Glens Falls Ins. Co., 184 Misc. 846,

24   848-50, 55 N.Y.S.2d 176, 178-79 (Sup. Ct. N.Y. Co. 1945) ("Glens Falls"), aff'd, 274 A.D. 1045, 86


                                                       -17-
 1   N.Y.S.2d 191 (1st Dep't 1949), aff'd, 301 N.Y. 506, 93 N.E.2d 73 (1950), the New York courts

 2   reaffirmed the enforceability of an 80-percent co-insurance clause, at least when there has been a

 3   partial, rather than a total, loss. The clause at issue there provided:

 4                   This company shall not be liable for a greater proportion of any loss or damage
 5                   to the property described herein than the sum hereby insured bears to eighty
 6                   per cent (80%) of the actual cash value of said property at the time such loss
 7                   shall happen, nor for more than the proportion which this policy bears to the
 8                   total insurance thereon.

 9                   In the event that the aggregate claim for any loss is both less than ten thousand
10                   dollars ($10,000) and less than five per cent (5%) of the total amount of
11                   insurance upon the property described herein at the time such loss occurs, no
12                   special inventory or appraisement of the undamaged property shall be required.

13   184 Misc. at 847-48, 55 N.Y.S.2d at 177. Noting that co-insurance clauses such as these are

14   frequently added as riders to the standard policy because fires usually result in a partial loss rather

15   than a total loss, the trial court explained:

16                          Only a small number of fires result in the total destruction of the
17                   property insured. Many property owners, realizing that the possibility of total
18                   destruction is so slight, insure merely for a small percentage of the value of the
19                   building or goods. If, for example, they can, by insuring the property for only
20                   25% of its value, receive full indemnity for any ordinary loss, they are tempted
21                   to accept this partial coverage at a cost of only one-fourth of that required for
22                   complete coverage.

23                           To prevent the property owners from taking out such a small amount
24                   of insurance, and thereby decreasing the premium payments, the insurers
25                   commonly insert, as a rider to the standard policy, the co-insurance clause.
26                   This results in reducing the recovery in case of a partial loss, though in case
27                   of total loss, the insurer is liable for the amount named in the policy. For
28                   example, let us assume that the property is worth $100,000, the loss is
29                   $10,000, and the insured carries a $20,000 policy. If the policy contained no
30                   co-insurance clause, the insurer would recover $10,000, but if the policy
31                   contained the usual 80% co-insurance clause, his recovery would be only
32                   $2,500, since he carried only one-fourth of the $80,000 insurance required.



                                                       -18-
 1   184 Misc. at 849, 55 N.Y.S.2d at 178 (emphasis added). The Glens Falls court noted that

 2                  [c]o-insurance has the effect of preventing one who is insured for a small part
 3                  of actual value, and who has paid a correspondingly small premium, from
 4                  collecting as much, in the event of loss, as one who is insured for a large
 5                  percentage of value and who has paid a correspondingly large premium,

 6   184 Misc. at 848, 55 N.Y.S.2d at 178, and that "[t]he validity of the co-insurance clause has been

 7   sustained; its purpose has been held to be sound," id. at 849, 55 N.Y.S.2d at 179:

 8                          "It is manifest that the rates of insurance, which it becomes necessary
 9                  for insurance companies to charge, depend upon the premiums received and
10                  losses sustained by them. . . . It is important, both to preserve the solvency of
11                  insurance companies and for the equitable application of the rates charged for
12                  insurance, that such rates shall be determined upon scientifically. Coinsurance
13                  clauses have frequently been declared to be just and reasonable and entirely
14                  consistent with the rule of indemnity, for they merely require the assured, as
15                  a condition of receiving a lower premium rate, to stand part of a loss himself,
16                  where he does not take out full insurance or insurance to the percentage of the
17                  value specified. . . .

18                          " . . . . The very purpose of the coinsurance clause is to place upon the
19                  insured the responsibility for ascertaining the value of his property, and for
20                  keeping it properly insured; and it goes without saying that having assumed
21                  this responsibility, he must live up to it or he will be caught at a disadvantage."

22   Id. at 849-50, 55 N.Y.S.2d at 179 (quoting Aldrich, 195 App. Div. at 183-84, 186 N.Y.S. at 575-76

23   (other internal quotation marks omitted)); see, e.g., Merritt v. Jefferson Insurance Co., 112 Misc.2d

24   51, 52, 445 N.Y.S.2d 972, 973 (Sup. Ct. Erie Co. 1982) ("The intent of coinsurance clauses is clearly

25   to reward those who insure at close to full value and to penalize those who insure at less than full

26   value").

27                  In Magie v. Preferred Mutual Insurance Co., 91 A.D.3d 1232, 1233, 937 N.Y.S.2d 452,

28   453-54 (3d Dep't 2012), the insurer sought to invoke a co-insurance clause in order to be held liable

29   for only part of the stated coverage amount for a home that was totally destroyed by fire. The


                                                       -19-
1    Appellate Division found the co-insurance clause inoperative on the ground that "in New York, a

2    coinsurance clause 'results in reducing the recovery in case of a partial loss, though in case of total

3    loss, the insurer is liable for the amount named in the policy.'" Id. at 1235; 937 N.Y.S.2d at 455

4    (quoting Glens Falls, 184 Misc. at 849, 55 N.Y.S.2d at 178). In support of that proposition, the

5    Appellate Division also cited, inter alia, the district court opinion in the present case.



6    C. Certification of Questions to the New York Court of Appeals

7                   The Policy at issue in the present case stated that the loss coverage amount on the

 8   home was $14,388,000. (See March 24, 2009 Policy Coverage Update stating "$14,388,000

 9   DWELLING COVERAGE AMOUNT".) The home was totally destroyed by fire in 2009, and the

10   cost of replacing the home would have exceeded that amount. The apportionment-of-loss clause in

11   the Policy was a reiteration of clauses that appeared in predecessor policies; it had been introduced

12   in 2006 in the Second Policy, after Davis, Quaker Hills's principal, next to a "question, reading

13   'desired amount of replacement coverage you want for the dwelling? (appraised @ $13,000,000 at

14   August [2006] appraisal),'" had written "'5,000,000,'" 2011 WL 4343368, at *1. Despite what Davis

15   wrote, the Second Policy stated the value of the home as $13,002,000; and the Applicable Policy

16   stated the value of the home as $14,388,000. Thus, the apportionment-of-loss clause invoked by

17   Pacific in order to pay Quaker Hills no more than 38 percent of the home's value as stated in the

18   Policy may, as the district court concluded, violate the provisions in § 3404 of the New York

19   Insurance Law setting out alternative minima of (1) actual cash value, (2) replacement cost, or (3)

20   specified value.



                                                       -20-
1                   On the other hand, New York public policy appears to favor co-insurance clauses

 2   because they are designed to prevent property owners from recovering full value for losses on

 3   property that they have chosen to undervalue for insurance purposes in order to be charged lower

 4   premiums. After Davis's "5,000,000" notation on the coverage inquiry, and the introduction of the

 5   apportionment-of-loss clause, Quaker Hills was charged a lower premium on the Policy, roughly

 6   commensurate with an apportionment of only 38 percent of the risk to the insurer. Pacific argues that

 7   the apportionment-of-loss clause should be upheld on the basis that it is thus analogous to a

 8   co-insurance clause. The analogy appears to fall short in light of the judicial rulings that co-insurance

 9   clauses in New York are not applicable when, as here, the property was totally, rather than partially,

10   destroyed. We note, however, that there appears to be no New York Court of Appeals opinion

11   addressing that issue. The trial court's decision in Glens Falls--which stated obiter that a co-insurance

12   clause would have no applicability in the event of a total loss--was affirmed by the Appellate

13   Division, whose decision was in turn affirmed by the Court of Appeals; but each affirmance was

14   rendered without a majority opinion.

15                  We have found no New York cases, nor any federal court cases construing New York

16   law, dealing with apportionment-of-loss clauses such as the one at issue here.

17                  This Court's Local Rule 27.2 allows for certification of a question of state law where

18   "the New York Court of Appeals has not squarely addressed [the] issue and other decisions by New

19   York courts are insufficient to predict how the Court of Appeals would resolve it." Joseph v.

20   Athanasopoulos, 648 F.3d 58, 67 (2d Cir. 2011) (internal quotation marks and citations omitted).

21   Certification is appropriate in circumstances where "the question . . . [is] of importance to the state,



                                                       -21-
 1   and its resolution . . . require[s] value judgments and important public policy choices that the New

 2   York Court of Appeals is better situated than we to make." Id. The Local Rules of the New York

 3   Court of Appeals permit certification of questions by this Court when we encounter "determinative

 4   questions of New York law . . . for which no controlling precedent of the Court of Appeals exists."

 5   N.Y. Court of Appeals Local Rule 500.27(a).

 6                  In light of (a) the lack of controlling precedent in the New York Court of Appeals or

 7   clear guidance from lower New York courts, (b) the fact that the viability of apportionment-of-loss

 8   clauses such as that at issue here will be determinative of the merits of Pacific's appeal, and (c) the

 9   important State interests and policy considerations that must be balanced in determining the

10   permissible allocation of risk in State fire insurance contracts, we conclude that the New York Court

11   of Appeals is better situated than is this Court to determine whether the apportionment-of-loss clause

12   at issue here is consistent with the State's Standard Fire Policy. Accordingly, we certify the following

13   questions of New York law:

14                  (1)     In an insurance policy that provides a stated dollar amount of loss
15                          coverage in the event of a fire, does a policy clause that, in exchange
16                          for a reduction in the premium charged, limits the insurer's liability to
17                          a percentage of any loss violate New York Insurance Law?

18                                  (a) If such a clause violates New York Insurance Law, is the
19                                  clause void, or is it voidable or subject to principles of waiver
20                                  or estoppel?

21                  (2)     If such a clause is in general permissible under New York Insurance
22                          Law, is it enforceable where there has been a total loss of the subject
23                          property?

24                  (3)     If such a clause is in general permissible under New York Insurance
25                          Law, is there a limit on the percentage of liability that can be
26                          apportioned to the insured?


                                                      -22-
 1                   In formulating the certified questions, we do not intend to limit the scope of the

 2   analysis by the Court of Appeals. We invite the Court of Appeals to alter or elaborate on these

 3   questions as it deems appropriate.



 4                                                CONCLUSION



 5                   We have considered all of Quaker Hills's contentions in support of its cross-appeal and

 6   have found them to be without merit; the judgment of the district court is affirmed to the extent that

 7   it dismissed Quaker Hills's claim for extended replacement costs. As to Pacific's appeal from so much

 8   of the judgment as ruled that Pacific is liable to Quaker Hills for the full amount of loss coverage

 9   shown in the Applicable Policy, we hereby instruct the Clerk of Court for the Second Circuit to

10   transmit to the Clerk of the New York Court of Appeals this opinion as our certificate, together with

11   a complete set of all filings in this Court by the parties. This panel will retain jurisdiction of Pacific's

12   appeal for resolution after disposition of the certified questions by the New York Court of Appeals.




                                                        -23-
