     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                                                  Amended: January 31, 2011)

7                              Docket No. 10-0799-CV

8                     -------------------------------------

9         10 ELLICOTT SQUARE COURT CORPORATION and 5182 GROUP, LLC,

10                             Plaintiffs-Appellees,

11                                       - v -

12                     MOUNTAIN VALLEY INDEMNITY COMPANY,

13                              Defendant-Appellant.

14                    -------------------------------------

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

17               Appeal by the defendant from a summary judgment entered

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

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

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

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

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

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

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



           *
            The Honorable John G. Koeltl of the United States District
     Court for the Southern District of New York, sitting by
     designation.
1    bound to provide insurance coverage to the plaintiffs under an

2    umbrella policy; and third, that in any event the defendant was

3    estopped from denying insurance coverage to the plaintiffs by

4    having issued a certificate of insurance identifying the

5    plaintiffs as additional insureds.    We reverse the district

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

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

8    York law necessary to our resolution of the third.

9                Affirmed in part, reversed in part, question certified

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

11   part.

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

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


20   SACK, Circuit Judge:

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

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

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

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

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

26   demolition.

27               The construction agreement between the plaintiffs and

28   Ellicott Maintenance required the latter to secure insurance to


                                       2
1    cover the former for any legal liability arising out of the

2    demolition project.   Ellicott Maintenance therefore purchased two

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

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

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

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

7    after receipt of which Ellicott Maintenance began the demolition

8    work.

9              The primary insurance policy required that the

10   underlying written construction agreement between the named

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

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

13   for which the plaintiffs sought defense and indemnification to be

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

15   Ellicott Maintenance or the plaintiffs signed the construction

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

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

18   recover for his injuries, the plaintiffs sought defense and

19   indemnification from the defendant insurance company.   The

20   defendant declined coverage, arguing that because the

21   construction agreement was neither signed on behalf of the

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

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

24   the defendant to Ellicott Maintenance, and therefore the

25   plaintiffs did not qualify as additional insureds under either of

26   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?1




          1
              Subsequent to our decision to submit this
     certified question to the New York Court of Appeals but
     before the submission was actually made or that Court could
     act upon it, the parties settled the underlying litigation.
     We therefore withdrew our certification. We construed the
     parties' stipulation as abandoning the defendant's appeal
     from the district court's estoppel ruling, and accordingly
     dismissed the appeal of that issue with prejudice. See 10
     Ellicott Square Court Corp. v. Mountain Valley Indem. Co., -
     -- F.3d ----, 2011 WL 223602, 2011 U.S. App. LEXIS 1565 (2d
     Cir. Jan. 26, 2011) (per curiam).   Despite the parties'
     settlement of the case, the other parts of this decision
     stand. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,
     513 U.S. 18, 26 (1994) ("Judicial precedents are
     presumptively correct and valuable to the legal community as
     a whole. They are not merely the property of private
     litigants and should stand unless a court concludes that the
     public interest would be served by vacatur." (internal
     quotation marks omitted)).


                                      5
1                                BACKGROUND

2              The defendant Mountain Valley Indemnity Company

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

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

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

6    general contractor in Buffalo, New York.2   As amended by an

7    additional-insured endorsement, the Primary Policy covered not

8    only Ellicott Maintenance but also any "person or organization

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

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

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

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

13   written contract or agreement [between Ellicott Maintenance and

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

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

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

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

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

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


          2
               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.

                                      6
1    Indem. Co., No. 07-CV-0053 (W.D.N.Y. June 13, 2008).   The Primary

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

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

4    "mean[] an accident . . . ."

5              In addition to the Primary Policy, Mountain Valley

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

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

8    The Umbrella Policy limited Mountain Valley's liability per

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

10   provided by the Primary Policy and stipulated that the Umbrella

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

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

13   guaranteed coverage for bodily injury resulting from an

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

15   extended coverage to additional insureds with whom Ellicott

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

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

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

19   0013568, Issued to Ellicott Maintenance, Inc. at 8, Fijal Decl.

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

21   Umbrella Policy did not provide that its coverage of additional

22   insureds was effective only if the written agreement between

23   Ellicott Maintenance and any additional insureds had been

24   "executed."

25             On or about August 14, 2003, Ellicott Maintenance

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

                                      7
1    Square Court Corporation d/b/a Ellicott Development Company

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

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

4    managed by EDC.   The agreement between Ellicott Maintenance and

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

6    Maintenance to procure insurance coverage protecting both itself

7    and the plaintiffs against claims by employees or subcontractors

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

9    Construction Agreement required that the insurance be "primary,

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

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

12   five million dollars,3 and that Ellicott Maintenance   obtain,

13   prior to the commencement of work, "Certificates of Insurance

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

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

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

17   plaintiffs or Ellicott Maintenance until September 12, 2003.

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

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

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

21   Primary Policy and the Umbrella Policy, Ellicott Maintenance as

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



          3
               While the Primary and Umbrella Policies, each of which
     limited liability to two million dollars for each annual period,
     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    respect to project: Graystone."    Certificate of Liability

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

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

4    dollars per occurrence under the Primary Policy and two million

5    dollars under the Umbrella Policy.    The following language

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

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

8    AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.    THIS

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

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

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

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

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

14   The reverse side of the COI bore similar language under the

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

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

17   the certificate holder, nor does it affirmatively or negatively

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

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

20   after it received the COI.

21              On September 9, 2003, three days before Ellicott

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

23   Paladino signed the construction agreement on behalf of the

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

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

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

                                       9
1              The plaintiffs notified Mountain Valley's agent, LRMP,

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

3    22, 2003, requesting that Mountain Valley defend and indemnify

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

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

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

7    inasmuch as the Construction Agreement had not been signed on

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

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

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

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

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

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

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

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

16   stated that even if the plaintiffs qualified as additional

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

18   Mountain Valley would deny coverage because the plaintiffs had

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

20   possible claim, as required by the Primary Policy.

21             DelPrince filed suit against EDC, 5182 Group, and

22   Ellicott Maintenance in New York State Supreme Court, Erie

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




                                     10
1    of the New York Labor Law, and seeking to recover damages for the

2    injuries he sustained.4

3              The plaintiffs filed this declaratory judgment action

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

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

6    additional insureds under the Primary Policy and therefore were

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

8    plaintiffs further alleged that the COI bound Mountain Valley to

9    provide coverage despite the absence of a signed agreement

10   between EDC and Ellicott Maintenance.   Finally, the plaintiffs

11   alleged that Mountain Valley should be precluded from relying on

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

13   disclaiming coverage was itself untimely.   The plaintiffs later

14   amended their complaint to add a claim alleging entitlement to

15   indemnification and defense as additional insureds under the

16   terms of the Umbrella Policy.

17             The district court (Richard J. Arcara, Judge5) referred

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

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

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

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

22   plaintiffs disclaiming coverage.   Mountain Valley also argued


          4
               The parties represented at oral argument before this
     Court that DelPrince's suit has been settled.
          5
               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    that it was not bound by the Umbrella Policy because (1) the

2    Construction Agreement required that the insurance provided to

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

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

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

6    requirement, and that because the Construction Agreement was not

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

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

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

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

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

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

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

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

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

16   "executed" for purposes of the Primary Policy because of the

17   parties' partial performance and because the parties to the

18   contract understood its signing to be ministerial.   The

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

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

21   the Primary Policy because "Mountain Valley's authorized

22   representative represented that such coverage was in place."

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

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

25   07-CV-0053 (W.D.N.Y. June 13, 2008).   Finally, the plaintiffs



                                     12
1    argued that the Umbrella Policy's own "blanket additional insured

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

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

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

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

6    denying Mountain Valley's motion for summary judgment and

7    granting the plaintiffs'.6   With regard to whether the

8    Construction Agreement was "executed," the magistrate judge

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

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

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

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

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

14   the parties' signatures to trigger coverage under that policy.

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

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

17   recommended finding that the COI incorporated the terms of the

18   Primary and Umbrella Policies.    Relying on Niagara Mohawk Power

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

20   (4th Dep't 2000), the magistrate judge found that Mountain

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

22   the certificate of insurance naming [the plaintiffs] as

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



          6
               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.
                                     13
1    rely, regardless of the absence of a signing of the construction

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

3    therefore recommended estopping Mountain Valley from denying

4    coverage to the plaintiffs.    Finally, the magistrate judge

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

6    provided timely notice of DelPrince's injury.7

7                Mountain Valley filed written objections to the entire

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

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

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

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

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

13   14556 (W.D.N.Y. Feb. 19, 2010).

14               Mountain Valley appeals.

15                                 DISCUSSION

16               I.   Standard of Review

17               We review the district court's grant of summary

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

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

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

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

22   appropriate where there exists no genuine issue of material fact

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

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



          7
                 Mountain Valley does not challenge this conclusion on
     appeal.
                                       14
1    R.R. Passenger Corp., 537 F.3d 153, 159 (2d Cir. 2008), cert.

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

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

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

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

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

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

8              II.   Execution of the Construction Agreement

9              The plaintiffs argue, and the district court concluded,

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

11   had signed the Construction Agreement before DelPrince was

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

13   the Primary Policy.   We disagree.

14             We must give "unambiguous provisions of an insurance

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

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

17   559 (2d Dep't 2010) (internal quotation marks omitted).   We

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

19   language . . . in order to find an ambiguity where none exists."8




          8
               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    Empire Fire & Marine Ins. Co. v. Eveready Ins. Co., 48 A.D.3d

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

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

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

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

6    143 A.D.2d 734, 735, 533 N.Y.S.2d 297, 297 (2d Dep't 1988)

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

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

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

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

11   2010 N.Y. LEXIS 3284, at *10 (Nov. 18, 2010) (adopting a

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

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

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

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

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

17   Black's Law Dictionary 650 (9th ed. 2009).9   A note to the

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

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

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

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

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

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


          9
               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.
                                     16
1    (Arthur L. Corbin ed., 3d Am. ed. 1919)) (brackets and internal

2    quotation marks omitted, emphasis in original).

3              New York courts employ the standard indicated by the

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

5    or fully performed before it can be considered executed.10   For

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

7    Co., 71 A.D.3d 712, 896 N.Y.S.2d 433 (2d Dep't 2010),11 a case

8    with facts remarkably similar to those of the case before us, a

9    construction manager contracted with a subcontractor to perform

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

11   purchase order that required the subcontractor "to obtain

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

13   construction manager] as an additional insured on the Certificate

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

15   additional insured endorsement provided, inter alia, that the

16   written contract or agreement between the manager and


          10
               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).
          11
               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
     not have known when it decided the case at bar, as superseding
     the Supreme Court's view on the matter.
                                     17
1    subcontractor had to be "[c]urrently in effect or becoming

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

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

4    713, 896 N.Y.S.2d at 434.

5               Before the purchase order was signed on behalf of

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

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

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

9    action against the construction manager and the subcontractor,

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

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

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

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

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

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

16   had not been 'executed' as of that time," as required by the

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

18   been executed by virtue of their partial performance of their

19   duties thereunder.

20              The Appellate Division, Second Department, agreed with

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

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

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

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

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

26   condition in the additional insured endorsement that the contract

                                         18
1    be 'executed' prior to the bodily injury or personal injury could

2    be satisfied by partial performance."    Id.

3              In this case, the plaintiffs assert that although the

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

5    requiring Ellicott Maintenance to procure insurance had been

6    fully performed in that Ellicott Maintenance had "obtained

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

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

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

10   Construction Agreement was not comprised of many individual

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

12   fulfilling the insurance procurement provision constituted

13   partial performance of the Construction Agreement--satisfaction

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

15   And as the district court correctly noted, partial performance

16   does not constitute execution.

17             The plaintiffs also argue that Burlington "appears to

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

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

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

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

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

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

24   concluded that the contract before it had not been executed

25   because it had neither been signed nor fully performed.

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

                                      19
1    896 N.Y.S.2d at 435.   One cannot conclude from the fact that a

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

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

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

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

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

7    material fact.

8              Because New York law unambiguously requires either the

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

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

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

12   Construction Agreement was not executed as of the date of

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

14   its conclusion that for that reason the Primary Policy was in

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

16             III. Estoppel under the Certificate of Insurance

17             The plaintiffs contend that Mountain Valley is

18   nonetheless estopped from denying coverage to the plaintiffs

19   under the Primary Policy12 because Mountain Valley's agent issued,

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

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

22   the question.




          12
               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               New York contract law instructs that, as a general

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

3    contract for insurance, not conclusive proof that the contract

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

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

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

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

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

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

10   11, 13 (1st Dep't 2004).   While a certificate "may be sufficient

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

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

13   of law."   Id.

14              However, the Third and Fourth Departments have held

15   that a certificate of insurance can estop an insurance provider

16   from denying coverage where the parties intended to provide

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

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

19   seeking coverage reasonably relied on the certificate of

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

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

22   867, 868-69, 705 N.Y.S.2d 459, 460–61 (4th Dep't 2000)

23   (concluding that insurer was bound by certificate of insurance

24   listing the plaintiff as an additional insured, even though

25   another certificate, under which the plaintiff sought coverage,

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

                                     21
1    Co., 151 A.D.2d 207, 210–11, 547 N.Y.S.2d 925, 927-28 (3d Dep't

2    1989) (estopping the defendant insurer from denying coverage to

3    the plaintiff where the plaintiff reasonably relied on a

4    certificate of insurance in commencing construction work).    But

5    the Second Department has declined to conclude that an insurer

6    was estopped from denying coverage to a party that was

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

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

9    423-24, 671 N.Y.S.2d 93, 96 (2d Dep't 1998) (rejecting estoppel

10   arising from a certificate of insurance where the certificate

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

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

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

14   under the policy").13   The First Department, too, has been

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

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

17   254, 850 N.Y.S.2d 455, 457 (1st Dep't 2008) ("Nor did the



          13
               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    certificate of insurance confer additional insured status.");

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

3    254-55, 835 N.Y.S.2d 154, 155 (1st Dep't 2007) ("We agree . . .

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

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

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

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

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

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

10   plaintiff] is an additional insured under a policy especially

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

12   coverage").

13              There is reason to conclude that the primary insured--

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

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

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

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

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

19   see the contract ostensibly requiring a contractor to procure

20   insurance; rather, a certificate of insurance naming the

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

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

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

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

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

26   additional insureds did not have a relationship with the insurer

                                       23
1    that would have given them the right to obtain or question the

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

3    primary insured which has explicitly agreed to the execution of

4    the underlying contract as a condition of coverage for additional

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

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

7    which is otherwise best positioned to assure compliance with the

8    conditions of its insurance.

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

10   made that, disclaimers notwithstanding, an insurer has an

11   obligation not to issue false or potentially misleading

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

13   if it or the agent is aware the parties may rely upon the

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

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

16   another party rightfully relies and so relying changes his

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

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

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

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

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

22   terms of insurance contracts and certificates of insurance than

23   their insureds, along with greater knowledge of the applicable

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

25   reason that ambiguities in insurance contracts are construed

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

                                      24
1    Ins. Co., 34 N.Y.2d 356, 361, 314 N.E.2d 37, 39, 357 N.Y.S.2d

2    705, 708 (1974).   And such a distribution of responsibility may

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

4    enforcement of the certificate of insurance would not expand the

5    substantive scope of the insurance contemplated by the insurer,

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

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

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

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

10   among the Appellate Divisions, and of the underlying policy

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

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

13   Court of Appeals, we respectfully certify to the Court the

14   following question:

15             In a case brought against an insurer in which
16             a plaintiff seeks a declaration that it is
17             covered under an insurance policy issued by
18             that insurer, does a certificate of insurance
19             by an agent of the insurer that states that
20             the policy is in force but also bears
21             language that the certificate is not evidence
22             of coverage, is for informational purposes
23             only, or other similar disclaimers, estop the
24             insurer from denying coverage under the
25             policy?

26             IV.   Coverage Under the Umbrella Policy14


          14
               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
                                     25
1                The plaintiffs argue that even if they are not covered

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

3    under the Umbrella Policy.15   Mountain Valley responds that the

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

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

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

7    would constitute an expansion in coverage in contravention of New

8    York law.    We agree with the plaintiffs.

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

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

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

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

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

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

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

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

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

18   Id. (§ 3(d)).




     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.
          15
               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.
                                     26
1              We conclude that Section 3(c) renders the plaintiffs

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

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

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

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

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

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

8    363, 368, 828 N.E.2d 593, 596 (2005).    "[A]n unsigned contract

9    may be enforceable, provided there is objective evidence

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

11   828 N.E.2d at 597.

12             It is undisputed that the parties intended to be bound

13   by the Construction Agreement irrespective of whether and when it

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

15   agreement prior to its execution.    And it is indisputable that

16   under that agreement, the general contractor was to procure

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

18   Construction Agreement's requirement that Ellicott Maintenance

19   obtain aggregate insurance coverage for at least five million

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

21   limit of two million dollars.

22             Mountain Valley argues that the Construction Agreement

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

24   Policy because the Agreement required that Ellicott Maintenance's

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

26   Agreement required only that Ellicott Maintenance's policy be

                                     27
1    primary in relation to the plaintiffs' own policies "rather than

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

3                Mountain Valley also contends that because the

4    Construction Agreement did not refer explicitly to umbrella

5    coverage, it did not require Ellicott Maintenance to provide

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

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

8    Umbrella Policy to require such specificity.

9                Notwithstanding Section 3(c), Mountain Valley argues

10   that the plaintiffs do not qualify as additional insureds

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

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

13   whether the Primary Policy's execution requirement would preclude

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

15   Umbrella Policy, because the plaintiffs are eligible for coverage

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

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

18   which define who is an insured, provide alternative grounds

19   rather than compound requirements for qualification as an

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

21   conclude that the plaintiffs must qualify as insureds under both

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

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

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

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

26   470, 475, 807 N.E.2d 876, 879, 775 N.Y.S.2d 765, 768 (2004)

                                      28
1    (citation and internal quotation marks omitted).    We therefore

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

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

4              Although our conclusion rests on a ground not

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

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

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

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

9              V. Certification to the New York Court of Appeals

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

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

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

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

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

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

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

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

18   principally guided by three factors.

19             First, "certification may be appropriate if the New

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

21   other decisions by New York courts are insufficient to predict

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

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

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

25   344 F.3d 211, 220-21 (2d Cir. 2003); N.Y. Comp. Codes R. & Regs.

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

                                      29
1    "split of authority,"    Blue Cross, 344 F.3d at 221, regarding

2    whether a certificate of insurance can be enforced through

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

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

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

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

7    the divergent intermediate court decisions.      Carney v.

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

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

10   Court of Appeals would resolve the question.

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

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

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

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

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

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

17   2010).   We think that the New York Court of Appeals is better

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

19   under New York law of confirming that coverage exists before

20   issuing a certificate of insurance that purports to evidence such

21   coverage.

22               Third, we may certify if the question is

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

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

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

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

                                      30
1    whether the plaintiffs receive coverage under the Primary Policy,

2    and therefore the extent to which the plaintiffs will be

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

4    resolution of the certified question.

5              We therefore certify a question to the New York Court

6    of Appeals and reserve decision on this point pending that

7    Court's action.

8                               CONCLUSION

9              For the foregoing reasons, we certify the following

10   question to the New York Court of Appeals:

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

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

23   Court of Appeals' analysis through the formulation of our

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

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

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

27   195 (2d Cir. 2009).

28             Pursuant to New York Court of Appeals Rule 500.17 and

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

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

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

                                    31
1    certificate, together with a complete set of the briefs,

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

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

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

5    certification.   This panel will retain jurisdiction over the

6    appeal after disposition of this certification by the New York

7    Court of Appeals.

8              We affirm the district court's grant of summary

9    judgment to the plaintiffs with respect to coverage under the

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

11   grant of summary judgment to the plaintiffs with respect to

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

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

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

15   matter is final.




                                      32
