     14-392
     Jane Street Holding, LLC v. Aspen Am. Ins. Co.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Jane Street Holding, LLC,
13                Plaintiff-Appellant,
14
15                    -v.-                                                     14-392
16
17       Aspen American Insurance Company,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ADAM S. ZIFFER (with Robin L.
22                                             Cohen, Burt M. Garson, on the
23                                             brief), Kasowitz, Benson, Torres
24                                             & Friedman, New York, New York.
25
26       FOR APPELLEE:                         WAYNE R. GLAUBINGER (with Hilary
27                                             M. Henkind, on the brief), Mound


                                                  1
 1                              Cotton Wollan & Greengrass, New
 2                              York, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Sweet, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Jane Street Holding, LLC, appeals from the judgment of
12   the United States District Court for the Southern District
13   of New York (Sweet, J.), granting summary judgment in favor
14   of defendant-appellee Aspen American Insurance Company. On
15   appeal, Jane Street argues principally that the district
16   court misconstrued the insurance policy at the center of
17   this litigation. We assume the parties’ familiarity with
18   the underlying facts, the procedural history, and the issues
19   presented for review.
20
21        On October 29, 2012, Hurricane Sandy destroyed Jane
22   Street’s $2.2 million generator in the basement of One New
23   York Plaza. Aspen insured Jane Street against flood damage.
24   The dispute is whether the policy insured Jane Street’s
25   property in the basement.
26
27        The policy defined the “covered location” as Jane
28   Street’s corporate headquarters, specifically: “One New York
29   Plaza, 33rd Floor, New York NY 10004.” Jane Street
30   submitted a claim, but Aspen refused to pay any more than
31   $50,000--the policy’s sublimit for property not in a covered
32   location. Jane Street sued Aspen for breach of contract,
33   breach of fiduciary duty, and bad faith. The district court
34   granted Aspen’s motion for summary judgment as to all three
35   causes of action, on the ground that the policy covered
36   property only on the 33rd floor and did not extend to the
37   basement where the generator had been located. Jane Street
38   appeals the district court’s judgment with respect to the
39   breach of contract and bad faith claims.
40
41        We review de novo both a district court’s grant of
42   summary judgment, see, e.g., Terwilliger v. Terwilliger, 206
43   F.3d 240, 244 (2d Cir. 2000), and its interpretation of a
44   contract, see, e.g., Capital Ventures Int’l v. Republic of
45   Argentina, 552 F.3d 289, 293 (2d Cir. 2009). Summary
46   judgment is appropriate only “if the movant shows that there
47   is no genuine dispute as to any material fact and the movant

                                  2
 1   is entitled to judgment as a matter of law.” Fed. R. Civ.
 2   P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
 3   323 (1986).
 4
 5        The insurance policy defined the covered property as
 6   Jane Street’s “business personal property in buildings or
 7   structures at a ‘covered location’ or in the open (or in
 8   vehicles) on or within 1,000 feet of a ‘covered location.’”
 9   The contract’s definition of a “covered location” explains
10   that “if the Scheduled Locations Endorsement is added to
11   this policy, ‘covered location’ means a location that is
12   described on the Location Schedule.” Jane Street and Aspen
13   did include a Scheduled Locations Endorsement to the policy,
14   and it describes the “Covered Location” as “One New York
15   Plaza, 33rd Floor, New York NY 10004.” The text preceding
16   that location reads: “Coverage provided by the [policy]
17   applies only to the ‘covered locations’ described below.”
18   Although the policy insured against “direct physical loss”
19   to Jane Street’s property “at locations that are not
20   described on the Locations Schedule,” the policy limited
21   Aspen’s obligations to $50,000 “in any one occurrence for
22   each unscheduled location.”
23
24        The plain meaning of the policy is that: property
25   inside a building or structure that is on the 33rd floor of
26   One New York Plaza is covered (along with property in the
27   open, or in vehicles, on or within 1,000 feet thereof),
28   while for all other property a $50,000 limit applies.1 Cf.
29   T&G Knitwear Co. v. Home Ins. Co., 548 N.Y.S.2d 29, 30 (App.
30   Div. 1989) (holding that an insurance policy’s definition of
31   a covered location as the second and third floors of a
32   building rendered property in the sixth floor of the
33   building “not in an insured location”). Jane Street’s
34   flood-damaged generator was located in One New York Plaza’s
35   (unscheduled) basement and not on the building’s (covered)
36   33rd floor. The policy required no more of Aspen than the
37   $50,000 payment that it tendered to Jane Street.
38
39        Having concluded that the policy did not entitle Jane
40   Street to more than what Aspen has paid, we agree with the
41   district court that Jane Street’s claim of bad faith is


         1
          This straightforward interpretation applies with equal
     force to the policy’s Flood Endorsement, which “cover[s]
     direct physical loss to covered property at ‘covered
     locations’ caused by ‘flood’” (emphasis added).
                                  3
 1   without merit. See Sukup v. State of N.Y., 227 N.E.2d 842,
 2   844 (N.Y. 1967) (holding that, to support a claim of bad
 3   faith, the insured must demonstrate that “no reasonable
 4   carrier would, under the given facts” have denied coverage).
 5
 6        For the foregoing reasons, and finding no merit in Jane
 7   Street’s other arguments, we hereby AFFIRM the judgment of
 8   the district court.
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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