     13-1646(L)
     Certain Underwriters at Lloyds of London v. Illinois Nat’l Ins. Co. et al.

                               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 TO 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 for the Second
 2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
 3   Square, in the City of New York, on the 10th day of February, two thousand
 4   fourteen.
 5
 6           PRESENT: DENNIS JACOBS,
 7                            RAYMOND J. LOHIER, JR.,
 8                            CHRISTOPHER F. DRONEY,
 9                                    Circuit Judges.
10           ------------------------------------------------------------------
11
12           CERTAIN UNDERWRITERS AT LLOYDS OF
13           LONDON, ISSUING POLICY NOS. 509/DL458805
14           AND 509/DL460005, ASPEN INSURANCE UK LTD.,
15           ARCH INSURANCE COMPANY (EUROPE) LTD.,
16
17                                             Plaintiffs-Appellees,
18
19                                    v.                                          Nos. 13-1646(L); 13-1860(CON)
20
21           ILLINOIS NATIONAL INSURANCE
22           COMPANY, HARTFORD FIRE INSURANCE
23           COMPANY, TRAVELERS INSURANCE
24           COMPANY, GREAT AMERICAN ASSURANCE

                                                           1
 1         COMPANY, ARCH INSURANCE COMPANY,
 2
 3                                          Defendants,
 4
 5         INSURANCE COMPANY OF THE STATE OF
 6         PENNSYLVANIA, CONTINENTAL CASUALTY
 7         COMPANY,
 8
 9                                          Defendants-Appellants.
10
11         ------------------------------------------------------------------
12
13         FOR APPELLANTS:                  CHRISTOPHER R. CARROLL, Carroll, McNulty &
14                                          Kull, LLC, Basking Ridge, NJ, for Continental
15                                          Casualty Company.
16
17                                          ANTHONY J. ZARILLO, JR., Bevan, Mosca, Giuditta
18                                          & Zarillo, P.C., New York, NY, for Insurance
19                                          Company of the State of Pennsylvania.
20
21         FOR APPELLEES:                   IRA S. LIPSIUS, Lipsius-Benhaim Law LLP, Kew
22                                          Gardens, NY.
23
24         Appeal from a judgment of the United States District Court for the
25   Southern District of New York (Loretta A. Preska, Chief Judge).
26         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
27   AND DECREED that the judgment of the District Court is AFFIRMED.
28         Defendants-appellants Insurance Company of the State of Pennsylvania
29   (‚ICSOP‛) and Continental Casualty Company (‚Continental‛) (together, the
30   ‚Insurers‛) properly filed this interlocutory appeal challenging the District
31   Court’s denial of their motion for summary judgment, entered March 3, 2011,
32   and the District Court’s denial of their motion for reconsideration, entered
33   November 27, 2012. See 28 U.S.C. § 1292(b). There are two insurance policies at
34   issue on this appeal: ICSOP’s automobile insurance policy issued to Norbet

                                                        2
 1   Trucking and Continental’s umbrella policy, which incorporates ICSOP’s policy.1
 2   We are asked principally to consider whether, applying New York’s choice-of-
 3   law principles, New York or New Jersey law governs these policies. We assume
 4   the parties’ familiarity with the facts and record of the prior proceedings, to
 5   which we refer only as necessary to explain our decision to affirm.
 6          We review de novo both the District Court’s decision on the Insurers’
 7   motion for summary judgment, Mario v. P & C Food Mkts., Inc., 313 F.3d 758,
 8   763 (2d Cir. 2002), and its decision on the Insurers’ motion for reconsideration,
 9   Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42,
10   52 n.3 (2d Cir. 2012).
11          To determine which State’s law governs an insurance contract, New York
12   applies a ‚center of gravity‛ approach, according to which ‚the spectrum of
13   significant contacts—rather than a single possibly fortuitous event—may be
14   considered.‛ In re Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 226 (1993). ‚Along
15   with ‘the traditionally determinative choice of law factor of the place of
16   contracting,’ the New York Court of Appeals has endorsed the following factors
17   (identified in the Restatement [of Conflict of Laws]): ‘the places of negotiation
18   and performance; the location of the subject matter; and the domicile or place of
19   business of the contracting parties.’‛ Schwartz v. Liberty Mut. Ins. Co., 539 F.3d
20   135, 151-52 (2d Cir. 2008) (quoting Zurich Ins. Co. v. Shearson Lehman Hutton,
21   84 N.Y.2d 309, 317 (1994)); see Stolarz, 81 N.Y.2d at 227-28.
22          Applying these principles to ICSOP’s automobile insurance contract with
23   Norbet Trucking, it is apparent that New Jersey law applies. The policy was


     1The ICSOP policy, like the policy in In re Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219 (1993), and
     unlike the policy in Worth Constr. Co. v. Admiral Ins. Co., 836 N.Y.S.2d 155 (1st Dep’t 2007), is
     clearly an automobile insurance policy.
                                                      3
 1   issued in New Jersey and covers vehicles registered and garaged in New Jersey.
 2   See Stolarz, 81 N.Y.2d at 227-28 (‚The subject matter of the contract, a vehicle,
 3   does not have a fixed location but is registered in New Jersey.‛). Moreover, the
 4   insured’s principal place of business is New Jersey. See Certain Underwriters at
 5   Lloyd’s, London v. Foster Wheeler Corp., 822 N.Y.S.2d 30, 35-36 (1st Dep’t 2006)
 6   (where the disputed policy ‚cover*s+ risks in multiple states,‛ ‚the state of the
 7   insured’s domicile should be regarded as a proxy for the principal location of the
 8   insured risk‛ and ‚the state of the principal place of business takes precedence‛
 9   over the insured’s state of incorporation), aff’d 9 N.Y.3d 928 (2007); Restatement
10   (Second) of Conflict of Laws § 188 cmt. e (1971) (‚At least with respect to most
11   issues, a corporation’s principal place of business is a more important contact
12   than the place of incorporation‛). In short, all of the relevant contacts under
13   New York’s ‚center of gravity‛ approach favor the application of New Jersey
14   law.2
15           In urging a contrary conclusion, ICSOP argues that New York law should
16   govern because that is where the accident giving rise to the underlying personal
17   injury suit occurred. But its ‚reliance on New York as the situs of the accident
18   . . . confuses the contacts that might be significant in a tort case with those that
19   are material in a contract dispute.‛ Stolarz, 81 N.Y.2d at 228. And although
20   ‚*t+here are . . . instances where the policies underlying conflicting laws in a
21   contract dispute are readily identifiable and reflect strong governmental
22   interests, and therefore should be considered,‛ id. at 226, we discern no such
23   governmental policy favoring New York law on the facts of this case. We
24   conclude that New Jersey law applies to the ICSOP policy.


     2Since there is no issue here as to performance, the ‚place of performance‛ is irrelevant.
     Stolarz, 81 N.Y. 2d at 228.
                                                     4
 1         Continental has acknowledged that its policy is governed by the same law
 2   as the ICSOP policy. Continental’s policy names ICSOP as an additional insured,
 3   piggybacking on the terms of the ICSOP policy but providing excess liability
 4   coverage of up to $25 million. Continental does not provide compelling reasons
 5   to conclude that the Continental policy is any more connected to New York than
 6   is the ICSOP policy. Accordingly, New Jersey law also governs the Continental
 7   umbrella policy.
 8         We decline the invitation to address the parties’ arguments under New
 9   Jersey law at this time. For the foregoing reasons, the judgment of the District
10   Court is AFFIRMED.
11
12                                         FOR THE COURT:
13                                         Catherine O=Hagan Wolfe, Clerk of Court
14




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