12-4844-cv
Maclaren Europe Ltd. v. ACE Am. Ins. Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 15th day of November, two thousand thirteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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MACLAREN EUROPE LIMITED,
Plaintiff-Appellee,
-v- 12-4844-cv
ACE AMERICAN INSURANCE COMPANY, a/k/a ACE
USA,
Defendant-Appellant.
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FOR PLAINTIFF-APPELLEE: PAUL S. HUGEL, Clayman & Rosenberg
LLP, New York, New York.
FOR DEFENDANT-APPELLANT: JOSEPH K. POWERS (J. Gregory Lahr
and Thomas R. Orofino, on the
brief), Sedgwick LLP, New York,
New York.
Appeal from the United States District Court for the
Southern District of New York (Baer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-appellant ACE American Insurance Company
("ACE") appeals from the district court's November 8, 2012
judgment entered pursuant to the court's November 5, 2012
opinion and order, which granted summary judgment to plaintiff-
appellee Maclaren Europe Limited ("Maclaren") and charged ACE
with receipt of the insurance premium Maclaren had paid to a
broker, Rana Sahni ("Sahni"), pursuant to New York Insurance Law
§ 2121. We assume the parties' familiarity with the facts,
procedural history, and issues on appeal.
"We review an order granting summary judgment de novo,
drawing all factual inferences in favor of the non-moving
party." Kwong v. Bloomberg, 723 F.3d 160, 164 (2d Cir. 2013)
(internal quotation marks omitted). Summary judgment shall be
granted "if the movant 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). After an independent
review of the record, we conclude that Maclaren was entitled to
summary judgment on its claim for declaratory judgment and
affirm the judgment of the district court.
On appeal, ACE concedes that it is subject to New York
Insurance Law § 2121, but argues that the payment to the broker
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was not covered by Section 2121 because Maclaren made the
payment before ACE issued the policy. Because the broker
wrongfully converted the payment before the policy was issued,
ACE argues that it was entitled to cancel the policy for non-
payment of the premium. We reject this argument.
New York Insurance Law § 2121(a) provides in relevant
part:
Any insurer which delivers in this
state to any insurance broker . . . a
contract of insurance pursuant to the
application or request of such broker,
acting for an insured other than
himself, shall be deemed to have
authorized such broker to receive on
its behalf payment of any premium which
is due on such contract at the time of
its issuance . . . or any additional
premium which becomes due or payable
thereafter . . . , provided such
payment is received by such broker
within ninety days after the due date
of such premium . . . .
A literal reading of this provision supports Maclaren's
position. On its face, the statute merely requires the insurer
to deliver the policy to the broker for the broker to be deemed
the insurer's agent. Here, ACE delivered the policy to Sahni.
ACE argues that the plain language places temporal
limits on the broker-insured relationship. ACE asserts that the
phrase "at the time of its issuance" implies that an insured is
covered by Section 2121 only if the insurer has actually issued
the contract. Read in context, however, the phrase "at the time
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of its issuance" modifies the phrase "any premium," and was
therefore included to describe the type of payments covered
under Section 2121. Section 2121 could therefore protect
insureds for payments on premiums due: (1) in toto at the time
of issuance; (2) as an installment at the time of issuance; and
(3) later during the life of the contract, up to 90 days after
payment was due. ACE's argument requires words to be read into
the statute -- that only payments made after the policy is
delivered are covered.
Nevertheless, there is some ambiguity in Section 2121
because it is silent on the issue of pre-payment. We discern
two possible interpretations. First, the statute arguably sets
forth a risk-shifting scheme: an insurer who delivers a policy
to a broker assumes the risk of loss for any payment the insured
makes to the broker for the policy, and is therefore liable
under Section 2121 for the broker's misappropriation. See
Greater N.Y. Mut. Ins. Co. v. Axentiou, 597 N.Y.S.2d 401, 401
(1st Dep't 1993) (quoting Bohlinger v. Zanger, 306 N.Y. 228, 237
(1954) (Fuld, J., dissenting)). Second, however, the statute
could set forth a rule governed by agency principles. Under
this framework, advance payment of premiums to a broker would be
imputed to the insurer for purposes of Section 2121 only if some
kind of relationship exists between the insurer and the broker,
such that the payment was "in return for, or referable to," the
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policy at issue. See 18th Ave. Realty Corp. v. Aetna Cas. &
Sur. Co., 659 N.Y.S.2d 17, 18 (1st Dep't 1997).
We need not reach the question of whether Section 2121
is a strict loss-allocation rule or a rule governed by agency
principles, however, because Maclaren prevails under either
scenario. A risk-shifting scheme would mean that ACE assumed
the risk when it submitted the policy to Sahni, regardless of
when Maclaren remitted payment. Because ACE delivered the
policy to Sahni, ACE is deemed to have authorized Sahni to
receive payment on its behalf, and ACE bore the risk that Sahni
would fail to turn over the funds he had earlier collected. Cf.
Globe Indem. Co. v. Gilligan, 341 N.Y.S.2d 18, 20 (Dist. Ct.
Suffolk County 1973) (money insured paid to broker before
insurer issued policy to broker "constituted a credit to the
[insured's] account held by the broker and should be deemed as
payment under [Section 2121]").
If the statute is interpreted according to traditional
agency principles, the undisputed facts establish that Sahni was
ACE's agent for purposes of payment and that therefore ACE was
properly charged with having received payment. For three
policies covering three consecutive years, Sahni was an
intermediary between ACE and Maclaren. In March 2004, ACE
invoiced Sahni for payment, which Sahni received from Maclaren
and then forwarded to ACE (through a wholesale broker). Sahni
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served as the intermediary for successfully concluded insurance
contracts between ACE and Maclaren in 2004 and 2005. In 2006,
the third year of the parties' relationship, Maclaren and Sahni
followed the steps they had taken to renew Maclaren's policy
with ACE the prior year: Sahni was going to go back to the same
insurer, without any suggestion that Sahni was considering
looking at other companies.
The record thus contains undisputed facts showing that
when Maclaren transmitted its prepayment to Sahni, it believed
that Sahni would apply these funds toward the renewal of the
existing policy, as he had done in 2005. Although Maclaren
later considered quotes from other insurers as well, ACE
extended the 2005 policy for 30 days while the renewal policy
was being negotiated. ACE ultimately proceeded to issue
Maclaren a new policy for 2006. In light of this ongoing
relationship between the parties and ACE's history of
authorizing Sahni to act as its agent for collection purposes,
there can be little doubt that the premiums Maclaren advanced to
Sahni were "referable to" the policy ACE issued for 2006. See
18th Ave. Realty Corp, 659 N.Y.S.2d at 18 (protection under
section 2121 can be triggered only when a broker possesses funds
of the insured that "were payments in return for, or referable
to," the policy in dispute). Hence, the only conclusion a
reasonable factfinder could reach is that Sahni was ACE's agent
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for purposes of receiving payment. As a result, ACE can be
charged with the receipt of the premiums that Maclaren had
advanced to Sahni.
We have considered ACE's remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the judgment
of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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