     09-4866-cv, 09-4268-cv
     N ipponkoa Insurance Com pany Limited v. N orfolk Southern R ailw ay C ompany
     Sompo Japan Insurance Company of A merica v. N orfolk Southern R ailw ay C ompany



 1                                      UNITED STATES COURT OF APPEALS
 2                                          FOR THE SECOND CIRCUIT
 3
 4                                                      SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 29 th day of September , two thousand ten.
17
18   PRESENT:             PIERRE N. LEVAL,
19                        GERARD E. LYNCH,
20                                        Circuit Judges,
21                        EDWARD R. KORMAN,
22                                        District Judge.*
23
24   ------------------------------------------------------------------
25
26   NIPPONKOA INSURANCE COMPANY, LTD.,
27                          Plaintiff-Appellee,
28
29                                  v.                                                   No. 09-4866-cv
30
31   NORFOLK SOUTHERN RAILWAY COMPANY, THE KANSAS CITY SOUTHERN
32   RAILWAY COMPANY,
33                                             Defendants-Appellants.
34   ------------------------------------------------------------------
35
36   SOMPO JAPAN INSURANCE COMPANY OF AMERICA, SOMPO JAPAN
37   INSURANCE INC.,
38                          Plaintiffs-Appellees,
39
40                                 v.                                                    No. 09-4268-cv
41

               *
              Honorable Edward R. Korman of the United States District Court for the Eastern
     District of New York, sitting by designation.
 1   NORFOLK SOUTHERN RAILWAY COMPANY, NORFOLK SOUTHERN
 2   CORPORATION, THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
 3                          Defendants-Appellants.**
 4
 5   --------------------------------------------------------------------
 6
 7   FOR APPELLANTS:                  JAMES R. LLOYD, III (Paul D. Keenan, on the brief),
 8                                    Keenan Cohen & Howard P.C., Jenkintown, Pennsylvania.
 9
10   FOR APPELLEES:                   DAVID T. MALOOF (Thomas M. Eagan, on the brief),
11                                    Maloof, Browne & Eagan LLC, Rye, New York.
12
13           Appeal from the United States District Court for the Southern District of New York

14   (Denny Chin, Judge).

15           The district court granted summary judgment to the plaintiffs in these two related cases

16   based on what was then binding Second Circuit precedent. The parties agree that the Supreme

17   Court, in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. ___, 130 S. Ct. 2433

18   (2010), has abrogated the precedent upon which the district court relied. See also Royal & Sun

19   Alliance Ins., PLC v. Ocean World Lines, Inc., 612 F.3d 138, 140 (2d Cir. 2010). The plaintiffs-

20   appellees have raised further grounds they claim would support the judgment regardless of

21   Regal-Beloit, but concede that they did not present these grounds below because of the state

22   of the law at the time. The parties therefore have agreed that we should decline to reach these

23   issues so that the district court may have the first opportunity to address them on remand.

24           The judgment is VACATED and REMANDED for further proceedings.
25
26                                            FOR THE COURT:
27                                            Catherine O’Hagan Wolfe, Clerk of Court
28
29
30




              **
              The Clerk of the Court is instructed to amend the official caption in these cases to
      conform to the listings of the parties above.

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