05-4005
Thyroff v. Nationwide Mut. Ins. Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________
August Term, 2005
(Argued: April 11, 2006 Decided: June 15, 2007)
Docket No. 05-4005-cv
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LOUIS E. THYROFF,
Plaintiff-Appellant,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY,
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,
NATIONWIDE LIFE INS., NATIONWIDE GENERAL INSURANCE
COMPANY, NATIONWIDE PROPERTY AND CASUALTY COMPANY,
NATIONWIDE VARIABLE LIFE INSURANCE AND COLONIAL
INSURANCE COMPANY OF WISCONSIN,
Defendants-Appellees.
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Before: WINTER, CALABRESI, POOLER, Circuit Judges.
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Plaintiff-appellant Louis E. Thyroff appeals from a district court’s dismissal of his
conversion claim and the court’s grant of summary judgment on his breach of contract claim.
Following response by the New York Court of Appeals on the certified question of whether a
claim of conversion is cognizable for electronic data, we vacate the district court’s dismissal of
Thyroff’s conversion claim and remand for further proceedings.
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______________________________
WILLIAM P. TEDARDS, JR., Washington, D.C. (Leo G.
Finucane, Finucane & Hartzell, LLP, Pittsford, NY, on the
brief), for Plaintiff-Appellant.
BEN M. KROWICKI, Bingham McCutchen LLP, Hartford,
CT, for Defendants-Appellees.
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PER CURIAM.
Plaintiff-appellant Louis E. Thyroff appeals an adverse decision by the United States
District Court for the Western District of New York (Telesca, J.) dismissing his claims for
conversion and breach of contract. We assume familiarity with the underlying facts and
procedural history, which are provided at Thyroff v. Nationwide Mutual Insurance Co., 460 F.3d
400 (2d Cir. 2006), certified question answered by Thyroff v. Nationwide Mutual Insurance Co.,
8 N.Y.3d 283 (N.Y. 2007). In our prior opinion in this case, we affirmed the district court’s
grant of summary judgment dismissing Thyroff’s breach of contract claim, and certified the
following question to the New York Court of Appeals: “Is a claim for the conversion of
electronic data cognizable under New York law?” Thyroff, 460 F.3d at 408. On March 22,
2007, the New York Court of Appeals answered the certified question in the affirmative. See
Thyroff, 8 N.Y.3d at 293. As we explained in our prior decision, “if a conversion claim may
extend to electronic data, Thyroff has stated a claim sufficient to survive Nationwide’s motion to
dismiss for both his personal and business data.” Thyroff, 460 F.3d at 405. Accordingly, based
on the response from the New York Court of Appeals that electronic data may be the subject of a
conversion claim under New York law, we vacate the district court’s dismissal of Thyroff’s
conversion claim and remand for further proceedings.
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