York International Corporation v. Liberty Mutual Insurance Company
Filing
106
MEMORANDUM re Mtns for Partial Summary Judgment 82 and 83 and MOTION to Strike 89 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 07/09/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
YORK INTERNATIONAL
CORPORATION,
Plaintiff
v.
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant
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Civil No. 1:10-CV-0692
Judge Sylvia H. Rambo
MEMORANDUM
In this insurance action for defense and indemnification of underlying
asbestos-related claims, Plaintiff seeks declarations regarding the rights and
obligations of the parties under general liability insurance policies that it purchased
from Defendant, as well as damages to remedy Defendant’s alleged breach of
contract. Presently before the court are cross-motions for partial summary judgment
with regard to choice of law (Docs. 82 & 83), wherein the parties dispute whether
Pennsylvania or New York law should control the outcome of this case. Also before
the court is Plaintiff’s motion to strike (Doc. 89), which attacks portions of an
affidavit filed by Defendant in support of its motion for partial summary judgment
(Doc. 83-1). For the reasons stated herein, the court will grant Plaintiff’s motion for
partial summary judgment, grant in part and deny in part its motion to strike, and
deny Defendant’s motion for partial summary judgment.
I.
Background
The facts of this case are largely undisputed. In considering each of the
instant cross-motions for summary judgment, the court relied on the uncontested
facts or, where the facts were disputed, viewed the facts and deduced all reasonable
inferences therefrom in the light most favorable to the nonmoving party in
accordance with the relevant standard when deciding a motion for summary
judgment. See Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 362 (3d Cir. 2008).
Plaintiff York International Corporation (“Plaintiff”) filed this case on
March 30, 2010, against Liberty Mutual Insurance Company (“Defendant”), seeking
indemnification and defense from Defendant for more than one thousand underlying
asbestos claims. (Doc. 1.)1 The insurance policies that Plaintiff contends cover the
underlying asbestos actions (the “York Policies”) consist of four separate but
functionally identical policies with one-year terms and cover the period from
October 1, 1952 through October 1, 1956. Pursuant to these policies, Defendant
provided general products liability insurance to York Corporation, an entity that had
all of its assets and liabilities acquired by Plaintiff through a series of corporate
transactions.2 (Doc. 22, ¶¶ 2, 34, 40.) The underlying asbestos claims, which have
been filed in several jurisdictions throughout the United States, sound in products
liability, alleging bodily injury, sickness, and disease resulting from exposure to
The original complaint also sought relief for breach of the covenant of good faith and fair
dealing and statutory bad faith. (Doc. 1, Counts III &IV.) However, Plaintiff agreed to withdraw those
claims on March 2, 2011. (Doc. 21, ¶ 3.)
1
A more detailed summary of Plaintiff’s corporate history, which is not relevant to the
instant set of motions, is laid out in the court’s previous summary judgment memorandum of May 26,
2011. See York Int’l Corp. v. Liberty Mut. Ins. Co., Civ. No. 1:10-cv-0692, 2011 WL 2111989 (M.D.
Pa. May 26, 2011).
2
2
asbestos-containing products sold by York Corporation and shipped throughout the
United States. (Doc. 1, ¶ 14.)
During the time period covered by the York Policies, as well as the
negotiation and consummation of the policies, York Corporation resided in York,
Pennsylvania and was incorporated in Delaware. (Id., ¶¶ 1, 30.) At all relevant
times, Defendant was, and is, a Massachusetts mutual insurance company with a
principal place of business in Boston, Massachusetts. (Doc. 5, ¶ 5.)
The parties previously submitted cross-motions for summary judgment
as to whether a non-assignment clause in the relevant insurance policies barred
Plaintiff from receiving assignment of claims from its predecessor corporate entity,
and in its decision of May 26, 2011, the court held that Plaintiff was not barred from
submitting claims for asbestos-related injury to Defendant under the York Policies,
but limited the scope of those claims to those occurring between October 1, 1952 and
October 1, 1956. (Doc. 52.)
After Plaintiff submitted to Defendant those asbestos claims to which it
believed Defendant owed a duty to defend and indemnify, a dispute arose as to
choice of law. On December 8, 2014, the parties filed the instant cross-motions for
summary judgment, statements of facts and supporting briefs. (Docs. 82-86.) In
their respective motions, the parties seek a determination as to whether the court will
apply the laws of Pennsylvania or New York to the action. Due to the passage of
time between the period covered by the York Policies and the initiation of the instant
action – more than fifty years – no party with firsthand knowledge of the negotiation
or consummation of the policies could be identified, and complete copies of the York
Policies could not be located. (Doc. 22, ¶¶ 34-43.; Doc. 83-1, ¶ 6.) However, the
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parties were able to locate policy jackets, declarations pages, and certificates of
insurance for several of the policies. (Id., Exs. 26-30.) Relevant to the instant
dispute, the declarations pages list York Corporation’s address as “c/o Henry E.
Wood & Associates Inc., 45 John Street, New York 38, New York.” (Id., Exs. 28 &
29.) The certificates of insurance, however, list York Corporation’s address as York,
Pennsylvania. (Id., Ex. 30.)
In support of its motion for summary judgment, Defendant provided an
affidavit of its former longtime employee and current consultant, Jerry McCullough
(the “McCullough Affidavit”). (Doc. 83-1.) Mr. McCullough began his
employment with Defendant in 1961, approximately five years after the period
covered by the York Policies. (Id. at ¶ 2.) In the affidavit, Mr. McCullough testified
as to Defendant’s standard practices during the 1950s, and, more specifically, as to
the role that Henry E. Wood & Associates Inc. (“Henry E. Wood”) played in
acquiring the York Policies. (See id. at ¶¶ 7-19.) Plaintiff has filed a motion to
strike portions of the affidavit, which challenges, inter alia, Mr. McCullough’s
personal knowledge of the facts contained therein, primarily on the basis that his
employment with Defendant began after the negotiation and consummation of the
York Policies. (Doc. 89.) On January 12, 2015, Defendant filed an opposition to the
motion to strike (Doc. 97), together with a supplemental affidavit, in order to provide
additional foundation for Mr. McCullough’s personal knowledge of the averments
contained in his affidavit (Doc. 97-1).
The cross-motions for summary judgment and the motion to strike have
been fully briefed and are ripe for disposition.
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II.
Motion to Strike
The court will first consider Plaintiff’s motion to strike, which
challenges the admissibility of certain portions of the McCullough Affidavit relied
upon in Defendant’s brief in opposition to Plaintiff’s motion for summary judgment.
Plaintiff contends that the court should not consider these portions of the record
when deciding the cross-motions for summary judgment because the evidence would
be inadmissible at trial.
A.
Legal Standard
Either party may challenge the admissibility of evidence used to support
a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). Rule 56(c)(2) provides, in pertinent part, that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Thus, when the admissibility of
evidence is challenged, the party relying on the evidence must demonstrate that such
evidence is capable of admission at trial before it can be considered by the court on
summary judgment. However, this requirement does
not mean that the nonmoving party must produce evidence
in a form that would be admissible at trial in order to avoid
summary judgment. Obviously, Rule 56 does not require
the nonmoving party to depose her own witnesses. [Rule
56] permits a proper summary judgment motion to be
opposed by any materials listed in Rule 56(c), except the
mere pleadings themselves, and it is from this list that one
would normally expect the nonmoving party to make the
showing . . . [that specific facts show there is a genuine
issue for trial].
Celotex Corp., 477 U.S. at 324; see also Lin v. Rohm & Haas Co., 293 F. Supp. 2d
505, 511 (E.D. Pa. 2003). Although evidence may be considered in a form which is
inadmissible at trial, the content of the evidence must be capable of admission at
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trial. See Fed. R. Civ. P. 56(c)(2). Accordingly, the party offering the evidence must
demonstrate that it could satisfy the applicable admissibility requirements at trial
before the evidence may be used on summary judgment. See Robinson v. Hartzell
Propeller, Inc., 326 F. Supp. 2d 631, 643 (E.D. Pa. 2004). Evidence that will be
inadmissible at trial cannot be considered when ruling on a motion for summary
judgment. See Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378, 387-88 (3d Cir.
1999); Sharp v. Pa. Army Nat’l Guard, Civ. No. 1:11-cv-1262, 2013 WL 1703583,
*3 (M.D. Pa. Apr. 19, 2013).
B.
Discussion
Plaintiff’s motion to strike asserts three separate objections to the
admissibility of the McCullough Affidavit. The first contention is that some of the
assertions in the McCullough Affidavit are by an affiant that lacks personal
knowledge. The second contention is that certain statements in the McCullough
Affidavit are contradicted by the affiant’s previous deposition testimony. The third
contention is that several assertions in the McCullough Affidavit constitute legal
conclusions. These arguments will be addressed in turn.
1.
Lack of Personal Knowledge Challenges to Contents of
McCullough Affidavit
Federal Rule of Civil Procedure 56 requires that any evidence to be
considered in the summary judgment record must at least be capable of being
admissible evidence, and operates in conjunction with Federal Rule of Evidence 602,
which governs the scope of a witness’s testimony. Rule 602 permits a witness to
“testify to a matter only if sufficient evidence is introduced to support a finding that
the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness’s own testimony.” Fed. R. Evid. 602. Rule
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602 creates a low threshold of admissibility, as witness testimony should be admitted
if the judge could reasonably find that the witness perceived the event. Sullivan v.
Warminster Twp., 461 F. App’x 157, 162 (3d Cir. 2012). However, this should not
extend so far as to allow witness testimony that is merely based on speculation as to
what a third party believed or knew. See Palfrey v. Jefferson-Morgan Sch. Dist.,
Civ. No. 06-cv-1372, 2008 WL 4412230, *12 (W.D. Pa. Sept. 25, 2008).
Plaintiff attacks Paragraphs 7, 9, 10, 12, 13, 14, 15, 17, 18, and 19 of the
McCullough Affidavit for lack of personal knowledge. These paragraphs read as
follows:
7.
. . . I am very familiar with the sales and
underwriting protocols of Liberty Mutual Insurance
in the 1950s and the sales and underwriting protocols
for customers such as York Corporation.
9.
Although documents regarding the issuance of the
policies apparently have not been located, I have
reviewed other documents which indicate that Henry
E. Wood provided the types of services that I would
expect would be provided by an insurance broker or
advisor, such as advising on the types of claims that
should be reported to Liberty Mutual Insurance’s
coverage positions, and dealing with other
insurance-related problems.
10.
Back in the 1950s, Liberty Mutual Insurance was a
direct writer which did not typically deal with
brokers, but I am familiar with the standard practices
of insurance brokers and advisors during this time
period.
12.
When the insured employed a broker/advisor, the
standard practice was to send the policy to the
broker/advisor so that the broker/advisor could
review the policy to make sure that it provided the
coverage that had been negotiated.
13.
Once the broker/advisor was satisfied that the policy
provided the coverage that had been negotiated, the
broker/advisor would send the policy to the insured.
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14.
Based on this standard practice, when Liberty
Mutual Insurance issued the policies at issue, they
would have been sent to Henry E. Wood in New
York.
15.
The Declarations pages to the Liberty Mutual
Policies identify the Sales Office for the policies as
New York. This indicates that the policy was sold
out of the New York Division of Liberty Mutual
Insurance and that a salesperson in New York would
have been responsible to negotiate the policy with
the designee of York Corporation.
17.
Based on the above, the policies issued to York
Corporation would have been negotiated in New
York between a salesperson in Liberty Mutual
Insurance's New York office and Henry E. Wood.
18.
The standard practice of insurance brokers with
respect to premium payment was that the
broker/advisor would send a bill to the insured for a
gross premium amount. The insured would send
payment for that amount to the broker/advisor and
the broker/advisor would then deduct its commission
or fee and send the remainder to the insurance sales
person.
19.
Based on this standard practice, Henry E. Wood
would have sent the premium payment to Liberty
Mutual Insurance in New York.
(See Doc. 90, at pp. 3-5, 12 of 13.)
Plaintiff argues that the court should strike the preceding paragraphs
because Mr. McCullough began his employment with Defendant in 1961, nearly ten
years after the negotiation of the first York Policy and nearly five years after the
expiration of the policies’ coverage, and therefore Mr. McCullough’s testimony is
based only speculation. In response, Defendant acknowledges that Mr.
MucCullough’s employment began after the negotiation and execution of the York
Policies, but nevertheless contends that Mr. McCullough has personal knowledge of
8
the facts contained in his affidavit. (Doc. 97, p. 2 of 17.) Defendant asserts that Mr.
McCullough’s personal knowledge is based upon his review of other insurance
policies issued by Defendant during the same time period as those issued to Plaintiff,
and his familiarity, through his review of documents and job training, with
Defendant’s standard protocols and procedures during the 1950s. (Doc. 97, pp. 4-5
of 17.).
While it is true that Mr. McCullough’s review of documents as to
Defendant’s policies and protocols for underwriting insurance in the 1950s may give
him personal knowledge of Defendant’s standard practices during that time period,
see Khodara Envtl. II, Inc. v. Chest Twp., Civ. No. 3:2002-cv-96, 2007 WL 3146745,
*1 (W.D. Pa. Oct. 26, 2007) (“[P]ersonal knowledge of a matter included in an
affidavit under Rule 56(e)3 may be based not only upon knowledge gained through
one’s sensory perceptions, but through a review of records of the matter in
question.”) (citing Wash. Cent. R.R. Co. v. Nat’l Mediation Bd., 830 F. Supp. 1343,
1353 (E.D. Wash. 1993)), it does not impart on Mr. McCullough personal knowledge
of the negotiation or consummation of the York Policies. The fact that a practice or
protocol was standard does not ensure that it happened in every situation, including
in the instant case. Indeed, Mr. McCullough’s own testimony illustrates that
working through a broker was in fact not Defendant’s standard practice, as he states
that “[i]t was not the typical practice that insureds would have a broker or advisor
assist with the negotiation of policies issued by Liberty Mutual Insurance, but it did
After the opinion in Khodara, Rule 56 was amended so that the language from subpart
(e)(1) of Rule 56 was moved to supbart (c)(4). “Case law referring to Rule 56(e)(1) remains relevant to
newly amended Rule 56(c)(4).” Bell v. Lackawanna Cnty., 892 F. Supp. 2d 647, 661 n.12 (M.D. Pa.
2012) (citation omitted).
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happen on a number of occasions during my career.” (Doc. 97-1, ¶ 10e.) Because
Mr. McCullough does not have personal knowledge of the negotiation or
consummation of the York Policies as he was not employed by Defendant until
several years later, any averments by Mr. McCullough regarding what may have
happened based on Defendant’s practices is purely speculative. That Mr.
McCullough testified that brokers assisted in the negotiation of policies with insureds
only “on a number of occasions” over his more than thirty-year employment with
Defendant adds to the speculative and unreliable nature of the testimony. Such
speculation fails to meet even the low threshold for admissibility established by Rule
602, and therefore does not conform to Rule 56, but merely represents Mr.
McCullough’s conclusions, opinions, or beliefs. See Maldonado v. Ramirez, 757
F.2d 48, 51 (3d Cir. 1985) (“[T]he affiant must ordinarily set forth facts, rather than
opinions or conclusions.”); see also Carey v. Beans, 500 F.Supp. 580, 583 (E.D. Pa.
1980) (“Affidavits speculating as to motivations but containing no factual support do
not conform to [Rule 56.]”); Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976, 993 (E.D.
Wis. 1999) (“[P]redictions of certain . . . actions that could or would have occurred
are indeed conclusory speculation, on which [the court] will not rely in making [its]
decision regarding summary judgment.”). The court will therefore strike the
following portions of the McCullough Affidavit:
14.
Based on this standard practice, when Liberty
Mutual Insurance issued the policies at issue, they
would have been sent to Henry E. Wood in New
York.
...
17.
Based on the above, the policies issued to York
Corporation would have been negotiated in New
York between a salesperson in Liberty Mutual
Insurance's New York office and Henry E. Wood.
10
...
19.
Based on this standard practice, Henry E. Wood
would have sent the premium payment to Liberty
Mutual Insurance in New York.
(Doc. 83-1, ¶¶ 14, 17 19.)
2.
Contradictory Testimony Challenges to Contents of the
McCullough Affidavit
Plaintiff also contends that Paragraphs 12 to 15 and 17 to 19 should be
stricken under the sham affidavit doctrine because they contradict Mr. McCullough’s
prior deposition testimony. (Doc. 90, pp. 9-10 of 13). The purpose of the sham
affidavit doctrine is to remove from the record any “affidavit that indicates only that
the affiant cannot maintain a consistent story or is willing to offer a statement solely
for the purpose of defeating summary judgment.” Jiminez v. All Am. Rathskeller,
Inc., 503 F.3d 247, 253 (3d Cir. 2007). The doctrine allows a district court to
disregard an “affidavit that is submitted in opposition to a motion for summary
judgment when the affidavit contradicts the affiant’s prior deposition testimony.”
Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). However, “not all contradictory
affidavits are necessarily shams[,]” Jiminez, 503 F.3d at 254 (citing Baer, 392 F.3d at
625), and “an affiant has the opportunity to offer a ‘satisfactory explanation’ for the
conflict between the prior deposition and the affidavit.” Id. (citing Hackman v.
Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991)). Here, Plaintiff argues that the
portions of the McCullough Affidavit wherein Mr. McCullough refers to Henry E.
Wood as a broker, or as an advisor providing services that would be expected of a
broker, should be stricken because they are in contradiction to Mr. McCullough’s
prior deposition testimony, wherein he testified that “Liberty mutual, as a direct
dealing company, did not work through brokers.” (Doc. 82-7, at p. 54:2-3.) .
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To determine whether Mr. McCullough did, in fact, contradict himself,
it is helpful to look at the full exchange, of which Plaintiff has cited an excerpt,
during Mr. McCullough’s deposition:
Q:
Do you have any understanding as to who Henry E.
Wood and Associates was?
A:
Henry Wood Associates would have been either a
consultant or an insurance adviser.
Q:
Could it have been a broker?
A:
Liberty Mutual, as a direct dealing company, did not
work through brokers. Some brokers did true
consulting and advising work in addition to
brokering.
(Doc. 82-7, at pp 53-54.) This testimony does not appear to contradict the
McCullough Affidavit. Mr. McCullough’s supplemental affidavit further alleviates
any potential contradictions as it explains, in relevant part, as follows:
c.
The insured or prospective insured was free to bring
to the table whomever it wanted to negotiate the
coverage with Liberty Mutual Insurance, including
brokers/advisors.
d.
Liberty Mutual Insurance made it clear that all
fees/commissions for those services would be paid
by the insured not by Liberty Mutual Insurance.
Liberty Mutual Insurance was a direct dealing
company, with its own trained insurance agents and
was not dependent on working through brokers to
place coverage.
e.
It was not the typical practice that insureds would
have a broker or advisor assist with the negotiation
of policies issued by Liberty Mutual Insurance, but it
did happen on a number of occasions during my
career.
(Doc. 97-1, ¶¶ 10c-e.) The court thus finds that Mr. McCullough has provided
satisfactory clarification for any perceived contradiction between his deposition
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testimony and the McCullough Affidavit. Mr. McCullough consistently testified that
Defendant’s standard practice was to work directly with insureds and underwrite the
insurance itself, without going through a broker. Mr. McCullough’s statement that
Defendant did not “work through brokers” is therefore compatible with his testimony
that Defendant did not hire brokers to do its underwriting, and instead was a “direct
dealing company.” According to Mr. McCullough, an insured could choose to
employ a broker or advisor in some capacity, but Defendant would not pay any
commissions or fees to a third-party intermediary. In that event, it was the insured
who worked directly through the broker or advisor, not Defendant.4
Because the court finds no contradiction between Mr. McCullough’s
deposition testimony and the McCullough Affidavit, the court will not strike any
portion of the McCullough Affidavit under the sham affidavit doctrine.
3.
Legal Conclusion Challenges to Contents of the
McCullough Affidavit
Lastly, Plaintiff contends that Paragraphs 16, 20, and 23 should be
stricken because they constitute impermissible legal conclusions. (Doc. 90, pp. 1112 of 13). Opinion testimony is limited to testimony that is helpful to the factfinder
to either clearly understand the witness’s testimony or to determine a fact in issue.
Fed. R. Evid. 701. Because, as the factfinder, a jury does not decide questions of
law, legally conclusive statements, in which the law is applied to the facts, are not
Mr. McCullough’s deposition testimony and additional testimony in both the McCullough
Affidavit and Supplemental Affidavit further underscore the court’s reasoning in striking portions of the
McCullough Affidavit for lack of personal knowledge in Section II.B.1 of this memorandum, supra.
Because Henry E. Wood was an agent for Plaintiff, and brokers or advisors could provide a plethora of
different services, including, according to Mr. McCullough, “true consulting and advising work in
addition to brokering,” there is simply no basis for Mr. McCullough to speculate as to Henry E. Wood’s
actual involvement in the placement of the York Policies.
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helpful to the jury and are thus inadmissible at trial or at summary judgment. VIM,
Inc. v. Somerset Hotel Ass’n, 19 F. Supp. 2d 422, 428 n.4 (W.D. Pa. 1998) (quoting
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997)); Transportes
Aereos Pegaso, S.A. de C.V. v. Bell Helicopter Textron, Inc., 623 F. Supp. 2d 518,
533 (D. Del. 2009).
Plaintiff argues that the following portions of the McCullough Affidavit
contain improper legal conclusions:
16.
The Declarations pages to the Liberty Mutual
Policies identify New York as the “Home State” for
York Corporation. The “Home State” designation
identifies the state in which the contract was
consummated.
20.
The Liberty Mutual Policies did not afford coverage
for York Corporation’s operations in Pennsylvania,
although the policies did afford coverage for York
Corporation’s nationwide products liability.
23.
The documents provided to me indicate that York
Corporation decided not to insure its Pennsylvania
operations through Liberty Mutual Insurance
because it had obtained that insurance from another
insurance company.
(Doc. 90, at p. 12 of 13.)
First, because “the interpretation of an insurance contract is a matter of
law for the court,” Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 323 (3d Cir.
2005) (citing Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 106
(Pa. 1999)), Paragraph 16 will be stricken to the extent that it seeks to conclude that
New York was the place of contracting. As for Paragraphs 20 and 23, both parties
have stipulated to the fact that the York Policies cover Plaintiff’s products liability
risk for the period from October 1, 1952 through October 1, 1956. Because
Plaintiff’s products liability exposure, and nothing more, is the subject matter of the
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instant dispute, whether Plaintiff’s general operations in Pennsylvania were insured
by Defendant is of no relevance to the instant matter. Therefore, the court need not
consider these arguments. Likewise, there is no need to strike any part of Paragraphs
20 or 23 of the McCullough Affidavit at this time because they are irrelevant to the
choice of law issue being decided on summary judgment.
In conclusion,
the court will strike Paragraphs 14, 17, and 19 as provided above, supra Section
II.B.1, and will strike Paragraph 16 to the extent it concludes New York was the
place of contracting. The balance of Plaintiff’s motion to strike will be denied.
III.
Cross-Motions for Summary Judgment
Plaintiff and Defendant have each separately moved for summary
judgment on the choice of law issue. Plaintiff contends that Pennsylvania law should
be applied to the York Policies, while Defendant contends that the court should
apply New York law.
A.
Legal Standard
“When confronted with cross-motions for summary judgment, the court
must rule on each party's motion on an individual and separate basis, determining,
for each side, whether a judgment may be entered in accordance with the summary
judgment standard.” Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App’x
266, 270 (3d Cir. 2006) (citations omitted). Summary judgment is proper when the
record, taken in its entirety, shows that there “is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); accord Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). “A fact
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is material if it might affect the outcome of the suit under the governing law.”
Douglas v. Discover Prop. & Cas. Ins. Co., 810 F. Supp. 2d 724, 727 (M.D. Pa.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual
dispute is “genuine” only where a sufficient evidentiary basis exists that would allow
a reasonable factfinder to return a verdict for the nonmoving party. Zavala v. Wal
Mart Stores, Inc., 691 F.3d 527, 545 (3d Cir. 2012) (citing Liberty Lobby, 477 U.S.
at 257). When evaluating a motion for summary judgment, “a court must view the
facts in the light most favorable to the nonmoving party and draw all inferences in
that party’s favor.” Nationwide Mut. Ins. Co. v. Roth, 252 F. App’x 505, 506 (3d
Cir. 2007) (quoting Saldana, 260 F.3d at 232).
The initial burden of demonstrating the absence of a disputed issue of
material fact falls on the moving party. See Celotex, 477 U.S. at 323-24. “Once the
moving party points to evidence demonstrating no issue of material fact exists, the
nonmoving party has the duty to set forth specific facts showing that a genuine issue
of material fact exists and that a reasonable factfinder could rule in its favor.” Azur
v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). Once the
moving party has met its burden, the nonmoving party must “go beyond the
pleadings and by [its] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations omitted); see
also Saldana, 260 F.3d at 231-32 (citations omitted). If the nonmoving party’s
evidence “is merely colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d
Cir. 1992) (quoting Liberty Lobby, 477 U.S. at 249-50). However, “[s]uch
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affirmative evidence – regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the evaluation of the
court) than a preponderance.” Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). A “[c]ourt need not
accept mere conclusory allegations, whether they are made in the complaint or a
sworn statement.” Verdetto v. State Farm Fire & Cas. Co., 837 F. Supp. 2d 480, 483
(M.D. Pa. 2011) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
B.
Choice of Law
As a federal court sitting in diversity, the court must apply the choice of
law rules of the state in which it sits. See Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938); Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir. 2007) (citing
Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)). “If two jurisdictions' laws
are the same, then there is no conflict at all, and a choice of law analysis is
unnecessary. Thus, the first part of the choice of law inquiry is best understood as
determining if there is an actual or real conflict between the potentially applicable
laws.” Hammersmith, 480 F.3d at 230. “A ‘deeper [choice of law] analysis' is
necessary only if both jurisdictions' interests would be impaired by the application of
the other's laws.” Id. (quoting Cipolla v. Shaposka, 267 A.2d 854, 856 (Pa. 1970))
(alterations in original). “When both states' interests would be harmed by the
application of the other state's law, there is a ‘true conflict,’ and we must engage in
the contacts and interests analysis to determine which state's law should apply.”
Specialty Surfaces Int’l, Inc. v. Cont’l Cas. Co., 609 F.3d 223, 230 (3d Cir. 2010)
(quoting Hammersmith, 480 F.3d at 230–31).
17
“Pennsylvania applies a ‘flexible rule which permits analysis of the
policies and interests underlying the particular issue before the court’ and directs
courts to apply the law of the state with the ‘most interest in the problem.’” Id. at 229
(citing Hammersmith, 480 F.3d at 227 (quoting Griffith v. United Air Lines, Inc., 203
A.2d 796, 805–06 (Pa. 1964))). “In applying this rule, if confronted with a true
conflict, we first consider each state's contacts with the contract as set forth in the
Restatement (Second) of Conflict of Laws.” Id. at 230 (citations omitted). “This
analysis requires more than a ‘mere counting of contacts.’” Hammersmith, 480 F.3d
at 231 (quoting Cipolla, 267 A.2d at 856). “Rather, we must weigh the contacts on a
qualitative scale according to their relation to the policies and interests underlying
the [relevant] issue.” Shields v. Consol. Rail Corp., 810 F.2d 397, 400 (3d Cir.
1987).
C.
Discussion
The parties agree that a true conflict exists between the laws of
Pennsylvania and New York regarding an insurer’s duty to indemnify an insured,
and therefore an in-depth choice of law analysis is warranted. The parties do not
agree, however, on whether a true conflict exists between Pennsylvania and New
York with regard to an insurer’s duty to defend. Therefore, the court must first
determine whether a true conflict exists with regard to the duty to defend before
engaging in a choice of law analysis on that issue.
1.
Duty to Defend
18
Plaintiff argues that there is no conflict between Pennsylvania and New
York law when it comes to an insurer’s duty to defend an insured, and the court
agrees. Under Pennsylvania law, “courts have taken a relatively broad view in
discerning whether a complaint triggers the insurer's duty to defend.” Berg Chilling
Sys. Inc. v. Hull Corp., 70 Fed.Appx. 620, 624 (3d Cir. 2003). “An insurance
company's duty to defend a suit against an insured is determined solely on the basis
of the allegations of the complaint in the underlying action.” Westfield Ins. Co. v.
Bellevue Holding Co., 856 F. Supp. 2d 683, 691 (E.D. Pa. 2012) (quoting Nat'l Fire
Ins. Co. of Hartford v. Robinson Fans Holdings, Inc., Civ. No. 10-cv-1054, 2011
WL 1327435, *1 (W.D. Pa. Apr. 7, 2011)); see also Kvaerner Metals Div. of
Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006).
The question of whether an insurer has a duty to defend its insured in an action
brought by a third party, therefore, “depends upon a determination of whether the
third party's complaint triggers coverage.” Kvaerner, 908 A.2d at 896 (quoting Mut.
Benefit Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999)). The duty to defend “is
broader than the duty to indemnify, in that the former duty arises whenever an
underlying complaint may ‘potentially’ come within the insurance coverage.” Frog,
Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d Cir. 1999).
Therefore, an insurer can avoid its duty to defend a claim only “when it is apparent
on the face of the complaint that none of the injuries fall within the purview of the
insurance policy.” Westfield, 856 F. Supp. 2d at 692 (citing Peerless Ins. Co. v.
Brooks Sys. Corp., 617 F. Supp. 2d 348, 356 (E.D. Pa. 2008). Once the duty to
defend is triggered, even “when an insured tenders multiple claims to an insurer for
defense, the insurer is obligated to undertake defense of the entire suit as long as at
19
least one claim is potentially covered by the policy.” Post v. St. Paul Travelers Ins.
Co., 691 F.3d 500, 517-18 (3d Cir. 2012) (quoting Caplan v. Fellheimer Eichen
Braverman & Kaskey, 68 F.3d 828, 831 n.1 (3d Cir. 1995)).
The duty to defend under New York law is materially the same as under
that of Pennsylvania. “Under New York law, an insurer's duty to defend is
extremely broad and distinct from the duty to indemnify.” Napoli, Kaiser & Bern,
LLP v. Westport Ins. Corp., 295 F. Supp. 2d 335, 338 (S.D.N.Y. 2003) (citations
omitted). As with Pennsylvania law, a court applying New York law must start with
the allegations contained in the complaint, and “[a]n insurer must defend whenever
the four corners of the complaint suggest . . . a reasonable possibility of coverage.”
Md. Cas. Co. v. Cont'l Cas. Co., 332 F.3d 145, 160 (2d Cir. 2003) (citing Cont'l Cas.
Co. v. Rapid–Am. Corp., 609 N.E.2d 506, 509 (N.Y. 1993)). Although an insurer is
not obligated to defend an insured “if it can be concluded as a matter of law that
there is no possible factual or legal basis on which the insurer will be obligated to
indemnify the insured,” Frontier Ins. Co. v. New York, 662 N.E.2d 251, 253 (N.Y.
1995), the duty to defend “perdures until it is determined with certainty that the
policy does not provide coverage.” Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252
F.3d 608, 620 (2d Cir. 2001). Additionally, “[i]f any of the claims against the
insured arguably arise from covered events, the insurer is required to defend the
entire action.” Fulton Boiler Works, Inc. v. Am. Motorists Ins. Co., Civ. No. 5:06-cv1117, 2010 WL 1257943, *6 (N.D.N.Y. Mar. 25, 2010) (quoting Frontier Insulation
Contractors, Inc. v. Merchs. Mut. Ins. Co., 690 N.E.2d 866, 869 (N.Y. 1997)); see
also Hotel Des Artistes, Inc. v. Transamerica Ins. Co., Civ. No. 93-cv-4563, 1994
WL 263429, *3 (S.D.N.Y. June 13, 1994) (“[E]ven if only a single claim in the
20
underlying complaint potentially falls within the indemnity coverage of the policy,
the insurer must defend the entire action.”).
Because an insurer’s duty to defend is nearly identical according to the
laws of both Pennsylvania and New York, no true conflict exists, and the court need
not conduct an in depth choice of law analysis. The court, therefore, may refer
interchangeably to the laws of either jurisdiction.
2.
Duty to Indemnify
Unlike with the duty to defend, the parties agree that there is a true
conflict between Pennsylvania and New York law regarding an insurer’s duty to
indemnify an insured. Under Pennsylvania law, an insurer is obligated, at the
insured’s option, to indemnify for the full amount of loss, up to the policy limits,
even if other insurers are available and portions of the loss are attributable to time
periods in which the indemnifying insurer did not have a policy with the insured. As
the Pennsylvania Supreme Court has held, “once the liability of a given insurer is
triggered, it is irrelevant that additional exposure or injury occurred at times other
than when the insurer was on the risk. The insurer in question must bear potential
liability for the entire claim.” J.H. France Refractories Co. v. Allstate Ins. Co., 626
A.2d 502, 508 (Pa. 1993). The insurer who pays out under this joint and several
allocation approach can then seek contribution from other insurers who had policies
covering other time periods where loss was sustained. See id. at 509.
New York law, however, does not impose joint and several allocation
and an “all sums” obligation on an insurer. Rather, New York law allocates
indemnification among insurers on a pro rata basis. Where “one continuous
occurrence spanning two [or more] policy periods has resulted in injuries in fact
21
triggering [several] of those policies, an appropriate method for allocating the net
losses among the [several] policies must be devised.” Uniroyal, Inc. v. Home Ins.
Co., 707 F. Supp. 1368, 1391 (E.D.N.Y. 1988) (prorating insurance coverage based
on the proportion of loss sustained during relevant policy periods). Even where an
insurance policy contains the language “all sums,” courts applying New York law
“have expressly rejected the conclusion that such language requires joint and several
allocation of damages and instead have endorsed the pro rata allocation method for
policies with that language.” Olin Corp. v. Am. Home Assur. Co., 704 F.3d 89, 102
(2d Cir. 2012). A common method of allocation, and that which Defendant seeks in
the present case, is referred to as the “time on the risk” method, whereby each insurer
is responsible for the pro rata percentage of time the insurer’s policy was in effect
over the course of the full time period over which loss was sustained by the insured.
See Consol. Edison Co. of New York, Inc. v. Allstate Ins. Co., 774 N.E.2d 687, 695
(N.Y. 2002) (affirming trial court allocation of loss through “time-on-the-risk”
method, while “not foreclos[ing] pro rata allocation among insurers by other
methods.”).
Because the allocation of an insurer’s risk and duty to indemnify its
insured is different under the laws of Pennsylvania and New York, a true conflict
exists, and an in depth choice of law analysis is required. The court will thus apply
the contacts with the contract analysis as set forth in the Restatement (Second) of
Conflict of Laws.
3.
Choice of Law Analysis
22
When examining each state’s contacts with the insurance contract under
the Restatement, the court must “bear[] in mind that ‘[it is] concerned with the
contract of insurance’ and not the underlying tort.” Hammersmith, 480 F.3d at 23233 (quoting McCabe v. Prudential Prop. & Cas. Ins. Co., 514 A.2d 582, 586 (Pa.
1986)). Section 193 of the Restatement directs that a court should apply the “law of
the state which the parties understood was to be the principal location of the insured
risk during the term of the policy.” Restatement (Second) of Conflict of Laws § 193.
There is no principal location of risk in the present case because Plaintiff sold and
shipped products into several states. See Hammersmith, 480 F.3d at 233 (stating that
where coverage was provided in multiple states, there was no “‘principal location of
the insured risk,’ and the significance of this factor is ‘greatly diminsh[ed].”)
(quoting Compagnie des Bauxites de Guinee v. Argonaut-Midwest Ins. Co., 880 F.2d
685, 690 (3d Cir. 1989)) (alterations in original).
Where there is no principal location of insured risk, a court should
determine which state has greater contacts with the contract at issue by applying the
factors contained in Section 188(2) of the Restatement, which include: “(a) the place
of contracting, (b) the place of negotiation of the contract, (c) the place of
performance, (d) the location of the subject matter of the contract, and (e) the
domicile, residence, nationality, place of incorporation and place of business of the
parties.” Id., § 188(2). These factors “are to be evaluated according to their relative
importance with respect to the particular issue.” Id. The court will address these
factors in turn.
a.
Place of Contracting
23
“An insurance contract is made in the state where it is delivered.”
Hammersmith, 480 F.3d at 233 (citing Harry L. Sheinman & Sons v. Scranton Life
Ins. Co., 125 F.2d 442, 444 (3d Cir. 1942)). In the present case, the parties dispute
where delivery of the York Policies occurred. Plaintiff contends that Pennsylvania
was the place of delivery because where there is no reliable evidence of the place of
delivery, delivery is presumed to have occurred where the insured is located. (Doc.
88, at pp. 13-14 of 20.); see Travelers Prop. Cas. Co. of Am. v. Chubb Custom Ins.
Co., 864 F. Supp. 2d 301, 310 (E.D. Pa. 2012) (“In the absence of proof of the place
of delivery, there is a presumption of delivery at the insured's residence.”) (citing
Crawford v. Manhattan Life Ins. Co. of N.Y., 221 A.2d 877, 881 (Pa. Super. Ct.
1966)); see also Hammersmith, 480 F.3d at 234 (finding the place of delivery as
New York based, in part, on the insured’s headquarters being located in New York);
Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560, 563 n.1 (3d Cir. 1976)
(presuming Pennsylvania was the state of delivery where the insured was located,
incorporated, and did business in Pennsylvania). The parties do not dispute that at
the time of contracting, York Corporation was both headquartered and did business
in Pennsylvania.5 However, Defendant contends that New York is the state of
The court finds that the location of York Corporation’s headquarters during the time of
contracting for the York Policies is not a genuinely disputed fact, despite Defendant’s efforts to muddy
the issue. Defendant attempts to argue in its briefing that Pennsylvania has no connection to the York
Policies because Plaintiff was subsequently acquired by another corporation with its principal place of
business in Wisconsin. (Doc. 86, pp. 13, 20 of 22.) Plaintiff’s current location, however, is not relevant
to the instant dispute. When performing a choice of law analysis, the court must “focus on the facts and
the protection of the parties’ justified expectations at the time of contracting.” Pac. Emp’rs Ins. Co. v.
Global Reinsurance Corp. of Am., 693 F.3d 417, 438 (3d Cir. 2012). York Corporation was founded in
York, Pennsylvania, in 1874 as York Manufacturing Company, which was later renamed as York
Corporation, and conducted its operations there. (Doc. 82-4, ¶¶ 1-3; Doc. 92, ¶¶ 1-3.) At the time of
contracting, York Corporation was still operating out of York, Pennsylvania, as evidenced by both the
certificates of insurance for the York Policies listing York, Pennsylvania as the address for York
(continued...)
5
24
delivery because Plaintiff’s purported broker, Henry E. Wood, was located in New
York, relying almost entirely on the “care of” Henry E. Wood address listed on the
declarations pages of the policies.
Even if the court were to find that Henry E. Wood was Plaintiff’s
broker, Defendant would still fail to overcome the presumption that the York
Policies were delivered to Plaintiff’s residence. See Chubb, 864 F. Supp. 2d at 310.
Significantly, there are no parties with firsthand knowledge of where the York
Policies were delivered. Rather, the only reliable evidence of record indicating that
the York Policies were delivered in New York is the “care of” Henry E. Wood
address provided on the declarations pages of the policies. Even assuming, as
Defendant contends, that the policies were initially delivered to Henry E. Wood at
the listed address, it would have presumably forwarded those policies to the insured
in Pennsylvania for execution. Under Pennsylvania law, “[i]t is unclear whether . . .
a contract sent from an insurer to an insured's broker, which forwards the contract to
the insured, is considered delivered at the place of the broker or the insured.” Id. at
310 n.1. Furthermore, as discussed supra, there is no evidence on which the court
can rely to find that Henry E. Wood was indeed acting as Plaintiff’s broker in
acquiring the York Policies. In the absence of proof to the contrary, delivery is
presumed at the insured’s residence. Id. at 310; see also Hammersmith, 480 F.3d at
233-34 (placing no importance on location of broker, who received the insurance
5
(...continued)
Corporation, as well as correspondence relating to other claims under the York Policies at that time
coming from York, Pennsylvania. (Doc. 84-4, Exs. D-H.) Furthermore, Defendant admits in its answer
to Plaintiff’s statement of facts that York Corporation was located in Pennsylvania (Doc. 92, ¶ 5), and
states in its own brief in support of summary judgment that “York Corporation maintained its principal
place of business in Pennsylvania.” (Doc. 86, at p. 20 of 22).
25
contract and forwarded it to the insured, and finding that delivery occurred at the
insured’s headquarters). At the time of contracting, Plaintiff was headquartered in
Pennsylvania, and thus this factor weighs in favor of applying Pennsylvania law.
b.
Place of Negotiation
As to the second factor under the Restatement, the place of negotiation
of the insurance contracts, the parties once again dispute whether this took place in
Pennsylvania or New York. Plaintiff argues that negotiation necessarily took place
in Pennsylvania where it was headquartered, as Plaintiff had no offices in New York.
Plaintiff also cites the fact that Defendant had an office in York, Pennsylvania at the
time of contracting as further evidence that negotiation of the York Policies likely
took place in Pennsylvania. Defendant, on the other hand, contends that negotiation
took place in New York because the address listed on the York Policies for York
Corporation is “care of” Henry E. Wood in New York, and Defendant’s New York
sales office is listed on the declarations pages.
The mere fact that Defendant had an office in York, Pennsylvania,
without any other evidence, does not support Plaintiff’s contention that Defendant
negotiated the York Policies out of that office. Rather, the listing of Defendant’s
New York sales office on the York Policies’ declarations pages shows that
negotiations, at least on Defendant’s part, likely occurred in New York. Whether
Plaintiff negotiated the York Policies from its headquarters in Pennsylvania, or
through Henry E. Wood in New York, however, is unclear based on the undisputed
facts of record. Because no party has firsthand knowledge of where negotiation
occurred, and the facts do not clearly support a finding that negotiation took place
entirely either in New York or Pennsylvania, or in both states, this factor is neutral.
26
c.
Place of Performance
Regarding the third factor, place of performance, “[a]n insurance
contract is ‘performed’ in the state in which insurance premiums are received.” Air
& Liquid Sys. Corp. v. Allianz Underwriters Ins. Co., Civ. No. 11-cv-247, 2013 WL
5436934, *48 (W.D. Pa. Sept. 27, 2013) (citing Gould, Inc. v. Cont'l Cas. Co., 822 F.
Supp. 1172, 1176 (E.D. Pa. 1993)); Armotek Indus., Inc. v. Emp’rs Ins. of Wausau,
952 F.2d 756, 761 n.7 (3d Cir. 1991)). Here, there is no evidence as to where York
Corporation paid its insurance premiums or where the premiums were received by
Defendant. Although Defendant had offices in both Pennsylvania and New York,
the record does not reflect that either of those offices received the premiums.6 While
the New York office is listed as the sales office, Defendant was, and is,
headquartered in Massachusetts, and the office that negotiated the contract would not
necessarily receive premium payments. Accordingly, the court is unable to
determine where Plaintiff performed its contractual obligations. Without any
evidence to suggest otherwise, the court therefore assumes that Defendant ultimately
received and processed premiums at its headquarters in Massachusetts. Therefore,
this factor is also neutral.
d.
Subject Matter Location
The court gives no credence to Defendant’s assertion that this factor favors the application
of New York law because premiums were received in New York by Plaintiff’s broker or advisor, Henry
E. Wood, and then forwarded on to Defendant. First, this averment is not supported by the record
because the court has stricken the portions of the McCullough Affidavit which include speculation by
Mr. McCullough about facts of which he has no personal knowledge. Second, even if the court did
accept Defendant’s averments about receipt of premiums by Henry E. Wood, the fact that a third-party
intermediary received the premiums in a certain state and then forwarded them on to an insurer would
not constitute receipt by the insurer in the intermediary’s state of operation. Henry E. Wood would have
been, if anything, an agent of Plaintiff, not Defendant, so Defendant would not have received the
premiums until after they were forwarded on by Henry E. Wood.
6
27
“The fourth factor, location of the subject matter of the contract, refers
to the location of the insured risk.” Hammersmith, 480 F.3d at 234 (citing Manor
Care, Inc. v. Cont’l Ins. Co., Civ. No. 01-cv-2524, 2003 WL 22436225, *7 (E.D. Pa.
Oct. 27, 2003)). This factor does not favor the application of either New York or
Pennsylvania law because the York Policies provided nationwide coverage to
Plaintiff, and thus there is no identifiable location for the risk insured by the policies.
Specialty Surfaces, 609 F.3d at 234. Therefore, this factor is also neutral.
e.
Location of the Parties
In determining the location of the parties, the court’s focus should be on
“the protection of the parties’ justified expectations at the time of contracting.”
Pacific Emp’rs, 693 F.3d at 438-39; see also Gould, 822 F. Supp. at 1176
(determining choice of law based on domicile and headquarters of the parties “when
the parties entered into the contracts . . .”). At the time of contracting, Plaintiff’s
predecessor entity, York Corporation, was headquartered and domiciled in York,
Pennsylvania, and incorporated in Delaware. Although Plaintiff was incorporated in
Delaware, “[a] corporation's principal place of business is a more important contact
than its place of incorporation.” Air & Liquid Sys., 2013 WL 5436934, at *48 (citing
Specialty Surfaces, 609 F.3d at 234.). As for Defendant, it was incorporated and
headquartered in Massachusetts, and maintained offices in both Pennsylvania and
New York. Thus, at the time of contracting, Plaintiff maintained its principal place
of business in Pennsylvania, Defendant had at least one office in Pennsylvania,
neither party maintained its principal place of business in New York, and Plaintiff
had no offices in New York. Therefore, this factor favors the application of
Pennsylvania law.
28
f.
Governmental Interests
Having considered the factors listed above, the court must finally
determine which state “has the most significant relationship to the insurance contract,
and the greatest governmental interest in seeing its laws enforced.” Hammersmith,
480 F.3d at 235. In determining which state has the most significant relationship to
the underlying contract, the court must consider “the interests and policies that may
be validly asserted by each jurisdiction.” Melville v. Am. Home Assur. Co., 584 F.2d
1306, 1311 (3d Cir. 1978). The above factors demonstrate that Pennsylvania has the
most significant relationship with the York Policies. Moreover, the court finds that
Pennsylvania’s interest in regulating insurance contracts that were contracted for in
Pennsylvania and issued to an insured with its headquarters in Pennsylvania is more
significant than New York’s interest in regulating insurance contracts that were
negotiated by an out-of-state insurer from its New York sales office.
Because Pennsylvania has the most significant relationship to the York
Policies and the greatest governmental interest in having its laws enforced, the court
will apply Pennsylvania law to the remaining issues in the instant case.
V.
Conclusion
For the foregoing reasons, the court finds that portions of the
McCullough Affidavit submitted by Defendant contain inadmissible evidence and
the court will therefore grant, in part, Plaintiff’s motion to strike. In response to the
parties’ cross-motions for summary judgment as to choice of law, the court finds that
Pennsylvania has the most significant relationship to the insurance contracts and that
29
Pennsylvania law will apply to the remainder of the dispute between the parties.
Therefore, the court will grant Plaintiff’s motion for summary judgment and deny
Defendant’s cross-motion for summary judgment.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: July 9, 2015.
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