     06-3231-cv
     Briggs Ave. v. Ins. Corp. of Hannover




 1                                     UNITED STATES COURT OF APPEALS
 2
 3                                           FOR THE SECOND CIRCUIT
 4
 5                                    ____________________________________
 6
 7                                               August Term, 2007
 8
 9   Argued: November 15, 2007
10   Question certified to the New York Court of Appeals: February 15, 2008
11
12                                             Docket No. 06-3231-cv
13                                    ____________________________________
14
15                                             BRIGGS AVENUE L.L.C.,
16
17                                               Plaintiff-Appellant,
18
19                                                        v.
20
21                                     INSURANCE CORPORATION OF HANNOVER ,
22
23                                              Defendant-Appellee.
24                                    ____________________________________
25
26                        Before: LEVAL, CALABRESI, and WESLEY, Circuit Judges.
27                                 ____________________________________
28
29
30                                              ROBERT SCHER , Scher & Scher, PC, Great Neck, N.Y., for
31                                              Plaintiff-Appellant.
32
33                                              JANET FORD , White, Fleischner & Fino, LLP, New York,
34                                              N.Y., for Defendant-Appellee.
35
36                                     ___________________________________
37
38
39
40
41
42
 1   CALABRESI, Circuit Judge:
 2

 3          This case raises a question of state law that has yet to be addressed by the New York

 4   Court of Appeals and that has led to divergent opinions in the federal district courts. When an

 5   injured party begins its suit against an insured by serving process on the Secretary of State, who,

 6   under New York corporate and limited liability company law, is the insured’s agent for such

 7   service, does this service suffice to trigger the provisions in the relevant insurance policy that

 8   require the insured to inform its insurer in a timely manner that a suit has been brought, where:

 9   (a) the insurance policy does not expressly refer to notice that a suit has been brought being

10   given to an insured’s “representative” rather than the insured itself, and (b) the insured plausibly

11   argues that – due to its failure to update its address with the Secretary of State – it had not

12   received actual notice that the suit had been brought? Because we believe that the New York

13   Court of Appeals should be given the opportunity to decide whether it wishes to address this

14   technical but recurring question of New York state law, we CERTIFY the question to the New

15   York Court of Appeals.

16

17                                              BACKGROUND

18          Plaintiff-Appellant Briggs Avenue LLC (“Briggs” or “Appellant”) filed an action in New

19   York State Supreme Court seeking a declaratory judgment that its insurer, Insurance Corporation

20   of Hannover (“ICH” or “Appellee”), be required to defend and indemnify Briggs in a personal




                                                       2
 1   injury lawsuit filed by one of Briggs’s tenants against Briggs. ICH removed the suit, pursuant to

 2   28 U.S.C. § 1441, to federal district court in the Southern District of New York.1

 3             At the district court, ICH moved for judgment on the pleadings and/or summary

 4   judgment on the ground that Briggs failed to comply with various notice requirements contained

 5   in its insurance policy. Briggs cross-moved for summary judgment. The district court granted

 6   ICH’s motion, denied Briggs’s cross-motion, and dismissed the case with prejudice. Briggs Ave.

 7   L.L.C. v. Ins. Corp. of Hannover, No. 05 Civ. 4212, 2006 WL 1517606 (S.D.N.Y. May 30,

 8   2006). Briggs appeals that decision.

 9

10   A. The Underlying Tort Lawsuit

11             Briggs owns and operates an apartment house at 2570 Briggs Avenue in the Bronx. On

12   or about May 14, 2003, Shaban Mehaj, the sole principal of Briggs, was informed of an incident

13   at this apartment house. A portion of the ceiling in one of the apartments had fallen. Mehaj

14   visited the apartment shortly thereafter, and asserts in his affidavit that he “was not informed that

15   anyone in the apartment had been injured in the incident and had no reason to suspect so.”

16   Mehaj did not notify Briggs’s insurer, ICH, because, at this point, he assertedly “had no

17   knowledge or notice that anyone had been injured.”

18             Later, on or about July 28, 2003, Nelson Bonilla, an adult son of one of the tenants at

19   2570 Briggs Avenue, filed a personal injury action against Briggs, alleging that on May 14,

20   2003, he was injured when a piece of the ceiling fell and struck him, and that the accident was

21   caused by Briggs’s negligence in maintaining the premises. The lawsuit sought $2 million in

     1
         ICH is an Illinois corporation. Briggs is a New York limited liability company.


                                                        3
 1   damages. A week or so earlier, Bonilla had served his personal injury complaint on the

 2   Secretary of State of New York, who under New York law functions as Briggs’s agent for

 3   service. N.Y. Ltd. Liab. Co. L. § 203(e)(4). The Secretary of State forwarded copies of the

 4   complaint to the address for Briggs then on file at the Secretary’s office. That address was,

 5   however, incorrect as Briggs had failed to advise the Secretary of State of its new mailing

 6   address. Briggs asserts that, because of the wrong address, it did not receive word of Bonilla’s

 7   suit.

 8           In state court, Bonilla moved for default judgment against Briggs and, in late March or

 9   early April 2004, directly served Briggs at its correct address. Briggs received the notice and

10   “within days” informed its insurance broker of the lawsuit. Shortly thereafter, ICH received,

11   through the insurance broker, an Accord General Liability Notice of Occurrence/Claim form,

12   dated April 2, 2004.

13

14   B. The Briggs Insurance Policy and Affirmative Defenses Claimed by ICH

15           Briggs’s insurance policy, issued by ICH, provided coverage for the period of September

16   20, 2002 to September 20, 2003, and thus was in place at the time of the ceiling incident. The

17   policy included a section entitled “Commercial General Liability Conditions” which articulated

18   notice requirements that the insured needed to comply with, in the event of an occurrence,

19   offense, claim or suit. The policy stated:

20                  2. Duties in the Event of Occurrence, Offense, Claim or Suit
21                         a. You must see to it that we are notified as soon as
22                         practicable of an “occurrence” or an offense which may result
23                         in a claim. . . .




                                                     4
 1                          b. If a claim is made or “suit” is brought against any insured,
 2                          you must:
 3                                   (1) Immediately record the specifics of the
 4                                   claim or “suit” and the date received; and
 5                                   (2) Notify us as soon as practicable.
 6                                   You must see to it that we receive written
 7                                   notice of the claim or “suit” as soon as
 8                                   practicable.
 9                          c. You and any other involved insured must:
10                                   (1) Immediately send us copies of any demands,
11                                   notices, summonses or legal papers received in
12                                   connection with the claim or “suit” . . . .

13          ICH, after receiving the notification of Bonilla’s lawsuit, replied to Briggs in a disclaimer

14   letter dated April 12, 2004, claiming affirmative defenses and indemnity due to Briggs’s failure

15   to comply with the policy notification conditions. The relevant portion of the letter explains that

16   “despite the service on the Secretary of State in July of 2003, Briggs Ave LLC first notified

17   Insurance Corporation of Hannover of the occurrence, claim or suit and first provided copies of

18   the summons and legal papers by cover letter dated April 2, 2004.”

19          In summary, ICH argues that Briggs is not entitled to insurance coverage because Briggs

20   failed to inform ICH of the ceiling incident or the Bonilla lawsuit until eleven months after the

21   incident, and eight months after the filing of the lawsuit, thus violating the conditions in the

22   insurance policy requiring (1) notice to ICH “as soon as practicable of an ‘occurrence’ or an

23   offense which may result in a claim,” (2) notice to ICH “as soon as practicable” of a lawsuit filed

24   against Briggs, and (3) that Briggs “[i]mmediately” send to ICH any papers received in

25   connection with a lawsuit. In response, Briggs argues that ICH has waived certain of these

26   arguments by failing to mention them specifically in its April 12, 2004 letter disclaiming

27   coverage, and further contends that none of the relevant conditions was violated by Briggs.




                                                       5
 1          The district court, in addressing the cross-motions for summary judgment, found that

 2   there were outstanding issues of fact regarding whether or not Briggs violated its duty to inform

 3   ICH of the occurrence – the falling of the ceiling in May 2003. It noted, however, that ICH

 4   could nonetheless prevail on summary judgment if it were able to demonstrate that, as a matter

 5   of law, Briggs violated its duty to notify ICH as soon as practicable of the Bonilla lawsuit. This

 6   ICH did to the district court’s satisfaction, by citing a short (one paragraph), but clear, decision

 7   of the New York Appellate Division for the First Department. 26 Warren Corp. v. Aetna Cas. &

 8   Sur. Co., 676 N.Y.S.2d 173, 174 (App. Div. 1998). Other federal district courts, facing similar

 9   factual circumstances, have chosen to distinguish 26 Warren Corp. and have come out the

10   opposite way. See 105 St. Assocs., LLC v. Greenwich Ins. Co., 507 F. Supp. 2d 377, 381

11   (S.D.N.Y. 2007); Nouveau Elevator Indus., Inc. v. Cont’l Cas. Ins. Co., No. 05 Civ. 0813, 2006

12   WL 1720429, at *6 (E.D.N.Y. Jun. 21, 2006). For the reasons that follow, we believe that the

13   New York Court of Appeals should be given the opportunity – if it wishes – to address the

14   Appellate Division decision and the underlying issues of public policy that opinion raises.

15

16                                               DISCUSSION

17          The law of New York and Second Circuit Local Rule § 0.27 permit us to certify to New

18   York’s highest court “determinative questions of New York law [that] are involved in a case

19   pending before [us] for which no controlling precedent of the Court of Appeals exists.” 22 N.Y.

20   Comp. Codes R. & Regs. tit. 22, § 500.27(a) (2008). We have certified questions to the Court of

21   Appeals “where state law is not clear and state courts have had little opportunity to interpret it.”

22   State Farm Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004). In Unigard Security


                                                       6
 1   Insurance Company, Incorporated v. North River Insurance Company, 949 F.2d 630, 631-32 (2d

 2   Cir. 1991), we particularly noted the problems that arise when an issue of state law, recurring in

 3   federal cases, leads to a split of authority within or between federal districts. There, as here, the

 4   Southern District of New York was split on a question relating to the interpretation of New York

 5   state law,2 with only a single decision of a lower New York state court as guidance. Id.

 6          The certification process provides us with a “valuable device for securing prompt and

 7   authoritative resolution” of questions of state law. Ex rel. Kidney v. Kolmar Labs., Inc., 808

 8   F.2d 955, 957 (2d Cir. 1987). And often when we certify we express no view as to the merits of

 9   the issue at hand. See, e.g., Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99, 108 (2d Cir.

10   2007); O’Mara v. Town of Wappinger, 485 F.3d 693, 697-99 (2d Cir. 2007); White Plains Coat

11   & Apron Co. v. Cintas Corp., 460 F.3d 281, 288 (2d Cir. 2006). There are, however, cases

12   where it is desirable that, in outlining the question to be certified to the Court of Appeals, we

13   also address how, were certification denied, we would resolve the issue.3 By doing this, we

14   facilitate the Court of Appeals’s decision as to whether or not to accept certification. See 22


     2
      New York law does not permit questions to be certified to the Court of Appeals from district
     courts, thus the divergent interpretations of the holding in 26 Warren Corp. could not have been
     resolved at the district court level.
     3
       We would usually base our proposed resolution on available New York sources of law. In their
     absence, or particular dubiety, we look to the relevant law of other states as well. This capacity,
     together with certification, goes a long way toward avoiding the dangers of which our late
     distinguished colleague, Charles E. Clark, warned shortly after the decision in Erie Railroad
     Company v. Tompkins, 304 U.S. 64 (1938). A decade before the certification procedure was
     created, he wrote that “instances [] where the federal court feels it cannot really re-examine state
     law beyond the wooden limits set by a single precedent [] lead, I submit, in reality to a
     falsification of the state law by erecting a single instance into a general principle to the point
     where, in all likelihood, the state court eventually would refuse to go.” Charles E. Clark, State
     Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L J. 267,
     293 (1946).


                                                       7
 1   N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(d) (2008). We therefore make clear that while

 2   we invite New York’s highest court to speak to an issue, we in no way impose on it to do so

 3   should it prefer, in its discretion, to withhold judgment. We place ourselves, in other words, in a

 4   position similar to that of the New York Appellate Divisions, whose view of the merits in a

 5   particular case may, but need not, be reviewed by the New York Court of Appeals.

 6          When we express our view of the merits, we create the following situation. The New

 7   York Court of Appeals can opt to grant certification. If it does, it will resolve the state law issue

 8   as it sees fit, which as New York’s highest court, only it can ultimately do. If, however, the

 9   Court of Appeals does not wish to speak to the subject, it can decline certification with a fuller

10   knowledge of what that refusal will mean in that particular case. In the event of such a refusal,

11   our interpretation of New York law would stand, and quite properly so. We would, in effect,

12   have been authorized “to impose our view of state law, provisionally, [and] until the highest

13   court of the state decides to resolve the question.” Guido Calabresi, Federal and State Courts:

14   Restoring a Workable Balance, 78 N.Y.U. L. Rev. 1293, 1302 (2003).

15          It is this approach to certification that we employ in the case before us.

16

17   A. New York Law and Our Analysis

18          ICH argues (1) that the notice that Briggs received, when Bonilla served its agent in law,

19   the Secretary of State, with his complaint, should suffice to trigger the notification requirement

20   of the insurance policy, and (2) that an eight-month delay was, as a matter of law, untimely

21   notification under the policy. Briggs responds by claiming that its insurance policy requires

22   actual rather than constructive notice and, hence, that the service on the Secretary of State,


                                                       8
 1   without evidence of actual notice to Briggs, did not obligate Briggs to inform ICH “as soon as

 2   practicable” of the suit.4

 3           In support of its position, ICH relies on a First Department case, 26 Warren Corp., 676

 4   N.Y.S.2d at 174, which held, in a similar situation, that the defendant insurer was not obligated

 5   to defend or indemnify the insured, because:

 6                   [t]he subject insurance policy’s notice of claim condition precedent
 7                   to coverage, that “the insured shall immediately forward to [the
 8                   insurer] every demand, notice, summons or other process received by
 9                   him or his representative,” is devoid of ambiguity, and the receipt of
10                   service of the summons and complaint by the Secretary of State, as
11                   plaintiff’s designated agent, constituted receipt by a representative
12                   within the meaning of the policy. The fact that plaintiff itself did not
13                   actually receive a copy, due solely to its own failure to notify the
14                   Secretary of State of a change in address of its representative to
15                   whom the Secretary was authorized to forward process, does not
16                   excuse its noncompliance with the notice requirement of the policy.
17
18   Id. (citations omitted) (second alteration in original) (emphasis added) .

19           Briggs asserts, in response, that it did comply with the policy provisions, as it only

20   became “practicable” for Briggs to notify ICH when Briggs actually “became aware that the

21   lawsuit had been commenced.” Brief of Plaintiff-Appellant at 20. In distinguishing 26 Warren

22   Corp., Briggs argues that because its policy (unlike that in 26 Warren Corp.) did not include the

23   words “process received by him or his representative” (emphasis added), the policy intended

24   that only actual notice would trigger the notification requirement.5

     4
      The district court analyzed the case in a somewhat different way. It took for granted that the
     notice to the Secretary of State triggered the requirement, and focused on whether Briggs’s
     failure to update its address with the Secretary of State was an “excuse” for the delay. The
     district court found no excuse as a matter of law.
     5
      Briggs also attempts to distinguish 26 Warren Corp. on the ground that the Warren policy
     required that notice be given “immediately” rather than “as soon as practicable.” But this


                                                        9
 1            Recent case law in the federal district courts lends some support to Briggs’s effort to

 2   distinguish 26 Warren Corp. Addressing policies that mirror Briggs’s, in circumstances where,

 3   like Briggs, the insured had failed to update its address with the Secretary of State, two district

 4   courts have found that it was the “or his representative” language in the 26 Warren Corp. policy

 5   that served as the “term by which receipt by the Secretary of State triggered the duty to notify the

 6   insurance company.” Nouveau Elevator Indus., Inc. v. Cont’l Cas. Ins. Co., No. 05 Civ. 0813,

 7   2006 WL 1720429, at *6 (E.D.N.Y. Jun. 21, 2006). See also 105 St. Assocs., LLC v. Greenwich

 8   Ins. Co., 507 F. Supp. 2d 377, 382 (S.D.N.Y. 2007) (finding, in similar circumstances, that the

 9   date on which the insured claimed to have received actual notice of the suit was “the appropriate

10   starting point from which to judge the reasonableness of its delay in notifying” the insurer).

11            On the other hand, two district courts – the court below and one other – have found 26

12   Warren Corp. applicable, even in situations where the underlying language did not include the

13   “or his representative” language. See Briggs, No. 05 Civ. 4212, 2006 WL 1517606 at *5-6; U.S.

14   Underwriters Ins. Co. v. 203-211 West 145th St. Realty Corp., No. 99 Civ. 8880, 2001 WL

15   604060, at *7 (S.D.N.Y. May 31, 2001) (noting relevance of 26 Warren Corp. to a policy similar

16   to the one before us, though finding a triable issue of fact on whether the insured was properly

17   registered with the Secretary of State), vacated on other grounds, 37 Fed. App’x 575 (2d Cir.

18   2002).




     argument adds nothing to the previous one made by Briggs. For, if the notification duty was
     triggered by service on the Secretary of State, then, as a matter of law, the notification Briggs
     gave was not provided “as soon as practicable.”


                                                       10
 1          Were the issue up to us, we would agree with these latter district courts. Given the rule

 2   in 26 Warren Corp.,6 we do not believe that the presence of words like “or his representative”

 3   can be determinative. And we would reject the notion that such a phrase is necessary for service

 4   on the Secretary of State to trigger the notification requirement. We therefore invite the New

 5   York Court of Appeals to speak to this issue, should it choose to do so.

 6

 7   B. Other Factors Favoring Certification

 8          We have embraced certification where a question of state law raises important issues of

 9   public policy. See, e.g., Shaffer v. Schenectady City Sch. Dist., 245 F.3d 41, 47 (2d Cir. 2001).

10   We believe certification is warranted here not simply because of the recurrence of this seemingly

11   narrow question (we have cited four cases that have been decided by the federal district courts in

12   the last five or so years), but also because the issue of when a notification requirement is

13   triggered implicates broader questions of insurance law and public policy. Should the Court of

14   Appeals choose to take this case, it would, if it wished, have the opportunity to speak to the

15   proper balance among the differing interests at stake.

16          New York, as the Court of Appeals has itself recognized, is one of increasingly few states

17   that allow an insurer to disclaim based on a failure by an insured to inform the insurer in a timely

18   fashion of the initiation of a suit, even if the insurer was not prejudiced by the delay in

19   notification. See In re Brandon, 97 N.Y.2d 491, 496 (2002). The Court of Appeals has declined

20   to abandon, or even to reduce, the New York no-prejudice rule. At the same time, it has been

     6
      Should the Court of Appeals choose to accept certification, that court is not restricted to the
     specific question we have presented, and may, of course, review the Appellate Division’s
     decision in 26 Warren Corp. itself.


                                                      11
 1   unwilling to extend that rule. Id. at 493 (refusing to extend no-prejudice rule where an insured

 2   failed timely to submit summons and complaint in context of supplementary uninsured motorist

 3   coverage).   See also Unigard Sec. Ins. Co. v. N. River Ins. Co., 79 N.Y.2d 576, 582 (1992)

 4   (refusing to apply presumption of prejudice in late notice dispute in reinsurance context). The

 5   severity of the no-prejudice rule has been tempered, moreover, by the seemingly heavy burdens

 6   that New York places on insurers in related contexts, for example, New York’s reading of

 7   insurers’ disclaimers very narrowly, and its requirement that insurers who do disclaim do so with

 8   great specificity. See, e.g., Gen. Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 864 (1979).

 9   These are, of course, in addition to the common rules favoring coverage and interpreting

10   ambiguous terms in an insurance policy strictly against the insurer. See, e.g., U.S. Fidelity &

11   Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232 (1986).

12          A rule that makes notice served on the Secretary of State the equivalent of notice served

13   on the insured penalizes those insureds who fail to update their addresses with the Secretary of

14   State. Such a rule reinforces appropriate norms of corporate behavior, providing, as the district

15   court said, “greater incentive for businesses to familiarize themselves with the law’s

16   requirements.” Briggs, No. 05 Civ. 4212, 2006 WL 1517606, at *7. Yet, as the court below also

17   stated, the result may well be “harsh”, id., particularly for a small business owner who fails,

18   through ignorance, to update his address. If the rule deems service on the Secretary of State in

19   all cases to furnish actual notice to the insured, it may be harsher yet in the rare case in which the

20   Secretary of State, through no fault of the insured, fails to give notice to it. Cf. Micarelli v.

21   Regal Apparel, Ltd., 381 N.Y.S.2d 511, 512 (App. Div. 1976). But cf. Hilldun Corp. v. Scarboro

22   Textiles, Inc., 422 N.Y.S.2d 417, 417 (App. Div. 1979). We do not know, or presume to


                                                       12
 1   suppose, whether in the total contours of insurance law in New York, the New York Court of

 2   Appeals would agree that the result is harsh, and choose to temper it, or whether it would instead

 3   find the rule not to be harsh at all, but only justly merited.

 4           We think these questions, and the delicate calibrations they require in response, are best

 5   considered by the New York Court of Appeals. We therefore indicate what, in the absence of

 6   guidance by that distinguished court, we believe to represent New York law today, and, by

 7   certification, offer the New York Court of Appeals the opportunity to guide us, should it opt to

 8   do so. For this reason we certify the following question:

 9           QUESTION CERTIFIED: Upon all the facts of this case, given the terms of the

10   insurance policy and the reason for the insured’s failure to give more prompt notice of the

11   lawsuit to the insurer, should the insurer’s disclaimer of coverage be sustained?

12           The New York Court of Appeals is, of course, invited, should it choose to grant

13   certification, to address any other issues it deems germane to this question.

14           It is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York

15   Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a

16   complete set of the briefs, appendices, and record filed by the parties in this court. This panel

17   will retain jurisdiction to decide the case once we have had the benefit of the views of the New

     York Court of Appeals, or once that court declines certification.




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