Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
9-8-1995
NL Industries v Comm Union
Precedential or Non-Precedential:
Docket 94-5470
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 94-5470
NL INDUSTRIES, INC.
v.
COMMERCIAL UNION INSURANCE COMPANY
Defendant/Third-Party Plaintiff
v.
CERTAIN UNDERWRITERS AT LLOYD'S;
INSURANCE COMPANY OF NORTH AMERICA;
NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY
Third-Party Defendants
Commercial Union Insurance Companies,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 90-cv-02124)
Argued: March 7, 1995
Before: BECKER, SCIRICA and WOOD,0 Circuit Judges.
(Filed September 8, 1995)
STEVEN R. BROCK, ESQUIRE (ARGUED)
Rivkin, Radler & Kremer
EAB Plaza, West Tower
Uniondale, NY 11556-0111
Counsel for Appellant, Commercial
Union Insurance Companies
0
Honorable Harlington Wood, Jr., United States Circuit Judge for
the Seventh Circuit, sitting by designation.
1
SAMUEL A. HAUBOLD, ESQUIRE
(ARGUED)
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Counsel for Appellee,
NL Industries, Inc.
TERRY M. COSGROVE, ESQUIRE
(ARGUED)
Peterson & Ross
200 East Randolph, Suite 7300
Chicago, IL 60601-6969
Counsel for Appellee, Certain
Underwriters at Lloyd's of London
PAUL R. KOEPFF, ESQUIRE (ARGUED)
O'Melveny & Myers
153 East 53rd Street
Citicorp Center
New York, NY 10022
Counsel for Appellee, Insurance
Company of North America
OPINION OF THE COURT
BECKER, Circuit Judge.
This appeal by defendant/third party plaintiff Commer-
cial Union Insurance Company ("CU") arises out of a suit brought
by plaintiff/appellee NL Industries ("NL") seeking a declaration
that it is entitled to product liability insurance coverage for a
large number of lawsuits alleging lead paint exposure. Jurisdic-
tion is based on diversity of citizenship. CU appeals from the
grant of summary judgment against it in order to contest: (1) the
2
district court's choice of New Jersey law and its apparently
consequent summary judgment requiring CU to fund NL's defense in
the underlying tort actions; (2) the court's refusal to apportion
the defense costs incurred in the underlying litigation between
covered and non-covered claims; and (3) its denial of CU's claim
for contribution against third party defendants/appellees
Insurance Company of North America ("INA"), Northbrook Insurance
Company, and certain underwriters at Lloyd's of London, (the
"London Insurers").
We hold that the district court erred in applying New
Jersey substantive law. Under New Jersey choice of law rules,
which are applicable since the case was litigated in the District
Court for the District of New Jersey, see Klaxon Co. v. Stentor
Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020 (1941),
the law of the place of contracting applies unless some other
state has a "dominant significant relationship" to the
transaction. The policy was negotiated and signed in New York,
and thus the parties reasonably expected, as the district court
recognized, that New York law would govern the interpretation of
the contract. Moreover, at all relevant times, the parties each
had their principal places of business in New York, the premiums
were paid in New York, and New York taxes were paid on the
policies.
In contrast, it is patent that New Jersey has none of
the contacts with or interests in the litigation that could give
rise to the requisite relationship. Significantly, none of the
underlying tort claims involved New Jersey plaintiffs. Because
3
the lead paint coverage actions had been joined with certain
environmental coverage actions (seeking coverage for claims that
NL was responsible for environmental harms at sites in New Jersey
and elsewhere), the district court relied upon Gilbert Spruance
Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 629 A.2d 885 (N.J.
1993), as a basis for applying New Jersey law. But since that
case has no application to tort-related cases, we conclude that
the court was incorrect in applying it here. And while it is
arguable that the states where the lead paint claims arose had a
relationship to the transaction, we do not believe that they have
the "dominant and significant relationship" necessary to displace
the law of New York, which is the law of the place of contract-
ing, of performance, and of the tort.
Because the district court's application of New Jersey
instead of New York law to the coverage issues was legally
erroneous, we must reverse the grant of summary judgment. In
view of this result, we do not reach the substantive questions of
CU's duty to defend, its right to allocation, or the availability
of a contribution claim against INA, for on remand these must be
reconsidered pursuant to New York law.
I. Facts and Procedural History
This is one of two separate declaratory judgment
actions brought by NL, a New Jersey corporation with its
principal place of business in New York, against CU for insurance
coverage under contracts negotiated and performed in New York.
NL first sought a declaration that CU was obligated to defend it
in product liability lawsuits in Massachusetts, New York, and
4
Louisiana arising out of NL's manufacture of lead paint pigment.
NL later added claims for coverage for four additional lead paint
suits. The various plaintiffs in the underlying lawsuits alleged
personal injuries as the result of lead paint exposure. NL did
not, however, seek a declaration of CU's obligation to indemnify
it with respect to the first three lead paint actions in this
lawsuit; instead, NL included that issue in a separate lawsuit,
the so-called "environmental action." See NL Industries, Inc. v.
Commercial Union Ins. Co., No. 90-2125 (D.N.J.). In that action,
NL also seeks a declaration that CU is obligated to defend and
indemnify NL in connection with approximately 385 environmental
claims arising from numerous sites throughout the United States.
The lead paint cases underlying this coverage suit
arise from the use of lead paint or paint containing lead pigment
manufactured by NL. The underlying complaints allege that NL
knew since the early 1900's of the dangers posed by lead paints,
and charge that NL "affirmatively misrepresented the safety,
suitability and qualities of lead paint through [its]
advertisements and promotional activities." (JA 21 at 1890-92;
1824-26; 1737-38; 1702-04.) They contain allegations of negli-
gence, fraud, civil conspiracy, and other intentional torts.
The plaintiffs also allege that NL organized the Lead Industries
Association ("the LIA") to respond to the negative information
being revealed about lead paint, and that NL's high-level
executives played an active role in the LIA, which led an effort
to discredit adverse medical evidence about the hazards of lead
paint in order to ward off any additional government regulation.
5
Documentary evidence submitted by CU supports these allegations
of fraud and other intentional torts. Many of the meetings
organizing these activities allegedly occurred in New York.
The district court found that New York was the place of
contracting for all of the policies issued to NL by CU. NL had
used a New York-based insurance broker to negotiate these con-
tracts. The contracts were countersigned in CU's New York
office. During the time that the relevant CU policies were in
effect, NL maintained its national headquarters and principal
place of business in New York. Both NL and CU's original
objectively reasonable expectations were that New York law would
control any disputes involving these contracts. See 7/11/91 Op.
at 10.0 CU coded these policies as New York contracts, and
premium taxes on the policies were paid in New York.
The CU policies at issue were effective from February
1, 1966 to January 1, 1978. Some policies covered the period
from February 1, 1966 to February 1, 1970 and provided coverage
for bodily injury only. Other policies were effective from
February 1, 1970 to January 1, 1978 and covered both bodily
injury and property damage claims. The insuring agreements
typically state:
The company will pay on behalf of the insured all sums
which the insured shall become legally obligated to pay
as damages because of
Coverage A bodily injury or
Coverage B property damage
0
In adopting the district court's finding about the parties'
expectations, we do not consider the affidavits submitted by CU
in the litigation of these four new suits, for the district court
properly noted that "[t]he time for the presentation of such
evidence has long passed." 5/26/94 Op. at 11.
6
to which this insurance applies, caused by an
occurrence, and the company shall have the right and
duty to defend any suit against the insured seeking
damages on account of such bodily injury or property
damage, even if any of the allegations of the suit are
groundless, false or fraudulent. . . .
The policies typically define "occurrence" as follows:
an accident, including injurious exposure to
conditions, which results, during the policy period, in
bodily injury or property damage neither expected nor
intended from the standpoint of the Insured.
The policies provided by INA similarly specify that INA has the
right and duty to defend bodily injury or property damage suits
caused by an "occurrence," defined as an event that was "neither
expected nor intended from the standpoint of the Insured."
In both cases involving the CU coverage, the
allegations of intentional conduct would appear to put coverage
at issue. In contrast, the London policies in effect from
November 19, 1949 to May 1, 1970 provide for (even broader)
coverage of property damage in the following terms:
COVERAGE. From and against all loss, costs, damages,
attorney fees and expenses of whatever kind and nature
which the Assured may sustain or incur by reason of or
in consequence of:
(a) Any and all liability imposed by law against the
Assured for damage to or destruction of property
of others . . . sustained or alleged to have been
sustained, arising from any cause whatsoever . . .
.
Despite the fact that NL was also covered by other
primary insurers during the relevant period, NL named only CU as
a defendant in this action. Accordingly, CU filed a third-party
complaint against those others -- the London Insurers, INA, and
7
Northbrook Insurance Company -- seeking a declaration that any
obligation owed NL with respect to the underlying actions was
subject to and limited by the obligations of the third-party
defendants.
NL moved for partial summary judgment against CU
seeking a declaration that New Jersey law would govern the
interpretation of its contracts with CU and that CU was obligated
to fund NL's defense in the three original lead paint actions.
In a July 11, 1991 opinion, the district court purported to
address the choice of law issue for both the lead paint and
environmental coverage actions. (The environmental coverage
dispute, NL Industries, Inc. v. Commercial Union Ins. Co., No.
90-2125, was also pending in the District Court for the District
of New Jersey.) The court apparently was under the impression
that it had to interpret a given insurance policy uniformly as to
both the environmental and the lead paint coverage claims. The
court decided that New Jersey law was applicable and, applying
it, granted NL's motion for defense costs of the three original
lead paint claims.
The case was then referred to a magistrate judge for a
hearing on the amount of defense costs. On March 20, 1992, CU
and NL entered into a stipulation and settlement agreement with
respect to the payment of NL's defense costs incurred prior to
March 1, 1992, in the three original lead paint actions. The
settlement agreement was intended by the parties to be a final,
binding resolution of that issue. Coverage for these three
actions, dealt with in the settlement agreement, is therefore not
8
at issue here. After the settlement agreement was finalized, NL
moved to amend its complaint to add the four new lead paint
lawsuits, which form the basis for this appeal.
These new lead paint actions arose in Pennsylvania and
Louisiana after the settlement of the coverage issues for the
original three lead paint actions.0 NL then moved for summary
judgment against CU alleging a duty to defend with respect to the
four new actions. CU followed with a motion for summary judgment
against INA and the London Insurers on its claim for contribution
for a portion of the more than $4 million CU paid to NL to
reimburse NL's defense costs in the three original actions. CU
also sought allocation of defense costs among CU, INA, the London
Insurers, and NL.
In opinions and orders dated August 6, 1993 and
September 9, 1993, the magistrate judge granted NL summary
judgment on the duty to defend the four new claims and denied
CU's motion for contribution and allocation.0 CU filed a motion
to vacate the judgment pursuant to Fed. R. Civ.P. 59(e), which
the Magistrate recommended be granted, deeming his opinions to be
0
The additional suits were: City of Philadelphia v. Lead
Industries Ass'n, No. 90-7064 (E.D. Pa.); Hurt v. Philadelphia
Housing Authority, No. 91-4746 (E.D. Pa.); Swartzbauer v. Lead
Industries Ass'n, No. 91-CV-3948 (E.D. Pa.); Orleans Parish
School Board v. Apex Sales Co., No. 91-6014 (La. Dist. Ct.).
0
The parties had originally consented to the jurisdiction of the
magistrate judge to determine damages and all further proceedings
after the district court's 7/11/91 opinion. After the magistrate
judge entered final judgment on the four new claims on November
15, 1993, CU contested the magistrate's jurisdiction, leading to
its Rule 59(e) motion.
9
reports and recommendations to the district court pursuant to 28
U.S.C. §636(b).
On May 26, 1994, the district court filed an opinion
adopting the magistrate judge's findings, granting summary
judgment in favor of NL on the issue of CU's duty to defend the
four new actions, and denying CU's motion for contribution and/or
allocation. The district court adhered to its previous determi-
nation that New Jersey law governed the interpretation of the
contracts, relying in part on the law of the case doctrine (based
on its disposition in the 7/11/91 opinion) and on concerns that
applying different states' laws to the various claims would be
unmanageable. The court denied CU's motion for contribution from
INA and the London Insurers on the basis that it was premature.
The court also declined to allocate defense costs between
negligence and intentional tort claims on the grounds that there
was no "substantial issue" as to coverage, and, consequently,
that all claims were potentially covered. This appeal followed.
Since choice of law analysis involves a purely legal
question, we exercise plenary review. Armotek Industries, Inc.
v. Employers Ins. of Wausau, 952 F.2d 756, 760 n.5, 762 n. 8 (3d
Cir. 1991). Moreover, the district court's grant of summary
judgment is also subject to plenary review. Public Interest
Research of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64,
71 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991).
II. New Jersey Choice of Law Principles
A. General Considerations
10
At the outset, we must carefully distinguish between
the environmental coverage disputes, which are not at issue in
this appeal, and the (new) lead paint coverage actions, which
are. We must also keep conceptually separate the underlying
merits actions (certainly not at issue here) from their
corresponding coverage litigation. This distinction is not only
important for limiting our decision to what is properly at issue
in this appeal; it also reflects a crucial distinction in New
Jersey's choice of law jurisprudence.
In many areas of the law, New Jersey "has eschewed
slavish devotion to rigid principles." See Diamond Shamrock
Chems. Co. v. Aetna Casualty & Sur. Co., 609 A.2d 440, 465 (N.J.
App. Div. 1992), certif. denied, 634 A.2d 528 (1993); Bell v.
Merchants & Businessmen's Mut. Ins. Co., 575 A.2d 878, 880 (N.J.
App. Div.), certif. denied, 585 A.2d 395 (1990); State v. Curry,
532 A.2d 721 (N.J. 1987); Veazey v. Doremus, 510 A.2d 1187 (N.J.
1986). Choice of law is no exception. Although the law of the
place of contracting has historically governed the choice of law
in insurance contract interpretation cases, see, e.g., Buzzone v.
Hartford Ac. and Indem. Co., 129 A.2d 561 (1957), in keeping with
the general trend the New Jersey courts have moved away from the
mechanical application of this rule in favor of a more flexible
approach focused on determining which state has the most
meaningful connections with and interests in the transaction and
the parties. See State Farm Mut. Auto Ins. Co. v. Simmons'
Estate, 417 A.2d 488 (N.J. 1980); Gilbert Spruance Co. v.
Pennsylvania Mfrs. Ass'n Ins. Co., 629 A.2d 885, 888 (N.J. 1993)
11
(reaffirming and applying Simmons); Colonial Penn Ins. Co. v.
Gibson, 552 A.2d 644, 646-47 (N.J. App. Div. 1989) (applying the
law of the place of contract unless the Restatement Conflict of
Laws (Second) § 6 factors "compel a contrary result").
Nonetheless, the factors that formerly controlled the
choice of law analysis remain important considerations in the
modern, more flexible approach embraced by the New Jersey courts.
Thus, under New Jersey choice of law rules, the law of the place
of contracting should ordinarily be applied unless some other
state has the "dominant relationship" with the parties and
issues.
[T]he law of the place of the contract will govern the
determination of the rights and liabilities of the
parties under the insurance policy. This rule is to be
applied unless the dominant and significant
relationship of another state to the parties and the
underlying issue dictates that this basic rule should
yield.
State Farm Mut. Auto. Ins. Co. v. Estate of Simmons, 417 A.2d
488, 493 (N.J. 1980). The presumption in favor of the place of
contracting serves two objectives: (1) protecting the "reasonable
expectations of the parties as to their insured risks," and (2)
advancing "certainty, predictability and uniformity." Id. at 496;
see also Gilbert Spruance, 629 A.2d at 888 (reaffirming general
approach and motivating policies); Gibson, 552 A.2d at 646-47.0
0
For these purposes, the place of contracting is the place where
the parties executed and delivered the insurance policy. See,
e.g., Nelson v. Insurance Co. of North America, 264 F. Supp. 501,
503 (D.N.J. 1967); Empire Mut. Ins. Co. v. Melburg, 336 A.2d 483,
484 (N.J. 1975); Melick v. Stanley, 416 A.2d 415, 417 (N.J. App.
Div. 1980). If a company from another state uses an insurance
broker to negotiate and purchase its insurance policies, then the
12
Factors and contacts set forth in the Restatement
Conflict of Laws (Second) §§ 6 and 188 determine whether or not
the place of contracting should in fact govern. See Gilbert
Spruance, 629 A.2d at 888; Simmons, 417 A.2d at 491-92. The
Restatement lists the following factors and contacts for a court
to consider in determining whether the law of a state other than
that of contracting has the requisite "dominant relationship."
(a) the needs of the interstate and interna-
tional systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those
states in the determination of the particular
issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the
particular field of law,
(f) certainty, predictability and uniformity
of result, and
(g) ease in the determination and application
of the law to be applied.
Restatement Conflict of Laws (Second) § 6(2) (1988).
For contract actions in particular, § 188 of the
Restatement contains the general rule that the law of the state
with the most significant relationship to the transaction and the
parties should apply. See Gilbert Spruance, 629 A.2d at 888;
Simmons, 417 A.2d at 491-92. Section 188 also provides an
enumeration of contacts -- such as the domicile, residence,
nationality, place of incorporation and place of business of the
parties, and the places of contracting and performance -- to
place of contracting is the place where the broker negotiated the
policies. See Diamond Shamrock Chems. Co., 609 A.2d at 465.
13
guide the identification of the state with the most significant
relationship. Id.
One additional Restatement section is implicated here -
-§ 193 of the Restatement. That section explains that, in the
context of casualty insurance contracts, the application of the
contacts articulated in § 188 and the concerns of § 6 should
focus on determining which state "the parties understood . . . to
be the principal location of the insured risk during the term of
the policy unless with respect to the particular issue, some
other state has a more significant relationship . . . to the
transaction and the parties. . . ." Gilbert Spruance, 629 A.2d
at 889 (citation omitted, final ellipsis in original). This
focus on the parties' understanding of the principal location of
the risk serves to protect both the parties' expectations as to
which law would apply and the interests of the state where the
risk is principally located in determining the extent of coverage
under the insurance contract. See Restatement of Conflicts
(Second) § 193 cmt. c; Gilbert Spruance, 629 A.2d at 889.
B. Environmental Coverage Cases and the
Inappositeness of Gilbert Spruance to Product
Liability Cases
Until fairly recently, New Jersey choice of law princi-
ples did not treat environmental coverage actions differently
from other insurance coverage disputes. Courts applied the
analysis described above in environmental coverage cases as well
as other insurance disputes to select a single state's law to
14
apply to all the related claims, irrespective of where the claims
arose. As the appellate division explained:
[W]hen comprehensive nationwide coverage is purchased,
it is surely the expectation of both insured and
insurer that what the insured has bought and insurer
has sold is a single protection from liability
irrespective of the particular state law under which
that liability is determined . . . . [T]he notion that
the insured's rights under a single policy vary from
state to state depending on the state in which the
claim invoking the coverage arose contradicts not only
the reasonable expectation of the parties but also the
common understanding of the commercial community.
See Westinghouse Electric Corp. v. Liberty Mutual Insurance Co.,
559 A.2d 435, 442 (N.J. App. Div. 1989).
In Westinghouse, the plaintiff insured had sought
coverage from 144 insurers for thousands of toxic tort claims and
numerous site-remediation (environmental) claims arising from
eighty-one sites in twenty-three states. Id. at 436. The trial
court severed and dismissed all claims for coverage arising
outside of New Jersey on forum non conveniens grounds. The
Appellate Division reversed, explaining that the plaintiff was
"entitled to a single, consistent and final resolution of the
choice of law question in a single comprehensive action which
will bind it and all its insurers." Id. at 442. Although it
specifically declined to reach the choice of law issue, the
Westinghouse court reasoned that the combined adjudication of
these multitudinous claims would be "manageable if the law of
only one state is required to be restated." Id. at 443.
Concerned by the possibility that resolution of
coverage issues under one state's laws might deny coverage to
15
claims involving sites in another state whose laws applied to the
underlying action -- thus frustrating the vindication of the site
state's environmental policies by rendering many of the judgments
uncollectible -- the New Jersey Supreme Court developed a
specialized analysis for environmental coverage actions.
Although Simmons, 417 A.2d 488 (N.J. 1980), remains the
definitive case on the proper choice of law analysis for product
liability insurance controversies, see Diamond Shamrock
Chemicals, 609 A.2d at 465, a different analysis now governs
environmental insurance controversies. In Gilbert Spruance, the
New Jersey Supreme Court applied the site-specific rule
enunciated in Johnson Matthey Inc. v. Pennsylvania Manufacturers
Ass'n Insurance Co., 593 A.2d 367 (N.J. App. Div. 1991), for
cases involving policies that did not contemplate a New Jersey
risk and waste that, while predictably "coming to rest" in New
Jersey, was generated out of state. See Gilbert Spruance Co.,
629 A.2d at 892.
Gilbert Spruance involved the interpretation of a
pollution exclusion clause contained in a comprehensive general
liability policy issued by a Pennsylvania carrier to a defendant
incorporated in Pennsylvania. The insurance contracts were
negotiated and countersigned in Pennsylvania, and the premiums
were paid there. Although the waste was generated by the
defendant in Philadelphia, the location of the company's paint
manufacturing business, the New Jersey Supreme Court was
convinced that the parties could "reasonably foresee that a New
Jersey waste site would receive the insured's waste products,"
16
thus rendering the application of New Jersey law equitable. See
629 A.2d at 886. The state's "compelling interest" in assuring
the financing of a clean up of the New Jersey waste site played a
very substantial role in the court's conclusion that New Jersey
had the "dominant significant relationship" necessary to overcome
the substantial contacts with Pennsylvania. See id. at 894.
Gilbert Spruance thus altered the balance of
Restatement § 6 factors in environmental coverage cases. See 629
A.2d at 894. While it rejected a categorical approach selecting
the state of either generation or disposal in favor of a "more
extended analysis pursuant to § 6(2)," the Gilbert Spruance court
explained that "when applying the principles enunciated in
Restatement section 6 to a case in which out-of state generated
waste foreseeably comes to rest in New Jersey, New Jersey has the
dominant significant relationship." See 629 A.2d at 894; see
also National Starch & Chem. v. Great American Ins. Cos., 743 F.
Supp. 318 (D.N.J. 1990) (earlier case finding that the location
of the waste sites is of "paramount concern", although not
irrebuttable). Gilbert Spruance thus establishes that, in
environmental cases, the location of the site carries very
substantial weight in the "significant relationship" analysis,
typically adequate to overcome the contacts of the place of
contracting.0
0
One might argue that Gilbert Spruance establishes the rule that
the law of the state where toxic waste comes to rest will apply,
if it was reasonably foreseeable that the waste would end up
there, obviating the need for the § 6 analysis. At most, the
court left the question open. See 629 A.2d at 894 ("[W]e express
no view on the proposition stated in J. Josephson, Inc, [626 A.3d
17
NL contends that Gilbert Spruance reduces the
importance of the place of contracting in all New Jersey choice
of law analyses, even outside of environmental claims. Although
the appellate division had left open the possibility that the
site-specific approach it adopted could apply outside the
environmental coverage context it was considering, Johnson
Matthey, 593 A.2d at 373, the policies driving the adoption of
the site-specific rule are inapposite in product liability
coverage actions. In particular, the adoption of the site-
specific approach rested heavily on the compelling (for § 6
purposes) interest that a waste-site state has in "determining
the availability of funds for the cleanup of hazardous substances
located within its boundaries." Leksi Inc. v. Federal Ins. Co.,
736 F.Supp. 1331, 1335 (D.N.J. 1990). But the state's interest
in determining coverage for product liability actions is more
amorphous and therefore less compelling than its interests in
environmental cleanup.
81 (N.J. Law Div. 1993),] that when another state is the
foreseeable location of the waste-site, the court must engage in
a section 6 analysis to determine if that state has the most
significant relationship with the parties, the transaction, and
the outcome of the controversy . . . ."). In passing on the case
before it, however, the Gilbert Spruance court incorporated the
interests of the waste site state into the customary § 6
analysis. Id. at 894. The court also endorsed the approach of
allowing resolution of issues "by the courts of the states whose
interests are immediately affected during the course of
litigation which can be effectively managed.". See Gilbert
Spruance, 629 A.2d at 895 (emphasis added). We believe that the
New Jersey Supreme Court's inclusion of the manageability caveat
further signals its intent to preserve a balancing analysis
rather than to discard it in favor of an inflexible rule.
18
There is also less predictability concerning the situs
of product liability claims, and a manageability problem in light
of the potentially far larger number of product liability claims
(relative to environmental sites in any given insurance coverage
action.) Thus, because the benefits of the site-specific
approach are reduced while the problems associated with its
implementation are magnified outside the environmental coverage
context, we believe that the New Jersey Supreme Court would not
extend the site-specific approach to the product liability
coverage area.0
There is precedent for our differential treatment of
the choice of law question in the product liability coverage
situation relative to the environmental coverage situation. In
Diamond Shamrock Chemicals Co. v. Aetna Casualty & Surety Co.,
609 A.2d at 465, which preceded but foreshadowed Gilbert
Spruance, the Appellate Division addressed a case involving both
Agent Orange product liability claims and environmental claims
stemming from the defendant's manufacture of dioxin. For the
Agent Orange toxic tort claims, the court relied on the fact that
0
In applying the new standard to environmental choice of law
questions, the New Jersey courts will have to conduct separate
choice of law analyses for environmental coverage claims and for
mass tort coverage claims even when they arise in a single case.
There is nothing anomalous about this result, since § 145 of the
Restatement Conflicts of Laws explains that, even within a single
action, the choice of law analysis applies to particular issues,
not to the case monolithically. Moreover, in repudiating the
uniform contract approach, see Gilbert Spruance, 629 A.2d at 892,
the New Jersey Supreme Court has demonstrated a willingness to
countenance the application of different state laws even to a
single issue of coverage. This may of course be quite difficult
and time-consuming, and result in serious management problems for
the courts applying this rule.
19
the New York was the place of contracting to apply New York law
to all of the Agent Orange coverage actions irrespective of where
the claims arose.
Diamond Shamrock, incorporated and located in Ohio, had
used a New York broker to purchase the policies. The court found
that the facts that Agent Orange was manufactured in Newark, New
Jersey, that it was sold to the government in New Jersey, that
some of the claimants were New Jersey veterans, that some of the
underlying suits were filed in New Jersey, and that the coverage
action was pending in New Jersey did not establish the dominant
relationship necessary to override the preference for New York as
the place of contracting.
However, in determining which law to apply in the
dioxin environmental coverage actions, the Diamond Shamrock court
correctly anticipated the New Jersey Supreme Court by using the
site-specific analysis enunciated by the Appellate Division's
opinion in Gilbert Spruance. The court determined that the law
of New Jersey, the state where toxic wastes predictably came to
rest (dioxin was manufactured in Newark), should apply to the
environmental coverage claims involving New Jersey sites. See
609 A.2d at 455. While this case predated Gilbert Spruance, it
presaged the principles announced in that decision, and therefore
effectively demonstrates how a court confronting environmental
coverage claims and other coverage claims in the same suit must
perform distinct choice of law analyses for each.
In summary, fundamental choice of law principles
require that courts consider different issues separately; a
20
single analysis does not typically resolve the choice of law
question for all claims in a suit. After Gilbert Spruance, New
Jersey's choice of law rules require not only that environmental
coverage claims be considered separately from other claims (such
as for product liability), but also that they be considered in
the site-specific framework, which is distinct from the
customary, modified contacts analysis still applicable in other
coverage contexts.
C. The District Court's Approach
After re-examining the choice of law issue, the
district court essentially adopted its July 11, 1991 choice of
law decision in disposing of these four new lead paint coverage
claims. The 1991 decision purported to analyze the question for
both the environmental coverage action and the lead paint
coverage action, (as the combined caption and conflated discus-
sion of the two actions suggest). The district court apparently
believed that a single choice had to be made for both. Although
it acknowledged that the lead paint cases were the subject of an
action separate from the environmental coverage action, it
stated:
[P]laintiff seeks a declaratory judgment of defendant's
liability for those three particular [lead paint]
claims in the "environmental action" as well. Thus,
the court must apply the same substantive law in both
the "lead paint" and "environmental" actions, or else
the parties rights and obligations under the policy as
it applies to the "lead paint" claims would be
interpreted according to two states' substantive laws.
7/11/91 Op. at 8 n.3.
21
The court also relied on the uniform contract approach
articulated in Westinghouse Electric Corp. v. Liberty Mutual
Insurance Co., 559 A.2d 435 (N.J. App. Div. 1989), to support its
choice of New Jersey law for all the environmental and product
liability claims notwithstanding the fact that only some of the
waste sites and none of the lead paint actions were located in
New Jersey. (7/11/91 Op. at 10). In reaffirming its 1991 choice
of law decision, the district court applied the law of the case
doctrine and rejected CU's argument that an intervening change in
the law wrought by Gilbert Spruance required a different
resolution. The court also cited its concerns about the manage-
ability of the site-specific choice of law approach in refusing
to apply Gilbert Spruance.0
In its initial (1991) decision, the district court
acknowledged the presumption in contract actions in favor of the
law of the place of contracting (here, New York). (7/11/91 Op. at
5). Nevertheless, the court relied on the "strong public
interest in insuring that environmental contamination within the
state will be remedied," id. at 8, to find the "significant
relationship" necessary to select New Jersey law instead.
Indeed, the court conceded that the other considerations in the
contractual "significant relationship" inquiry, such as the
0
Although the district court was aware of the site-specific test
announced by Gilbert Spruance after its original choice of law
decision in 1991, it declined to apply the test because its
application in the environmental case would result in the choice
of 34 different state laws, a result it regarded as so
unmanageable that the New Jersey Supreme Court could not have
intended it.
22
reasonable expectations of the parties and the need for certainty
and legal uniformity, actually favored the choice of New York law
as the place of contract and would have resulted in that choice
were it not for the significant relationship supposedly
established by the presence of some New Jersey waste sites. See
7/11/91 Op. at 10.
In sum, the choice of law analysis for the lead paint
claim coverage dispute is separate and distinct under New Jersey
law from that for the environmental claims, and yet the district
court appears to have combined the claims for this purpose in
both the original 1991 opinion and its May 26, 1994 opinion. See
7/11/91 Op. at 7-8 and 5/26/94 Op. at 10.0 This was error.
0
While the court seemed to accept the magistrate's conclusion
that the law of the case doctrine obviated any need for the court
to reconsider the original choice of law decision for the four
new lead paint actions, see 4/26/94 Op. at 6, it conceded that
Gilbert Spruance's rejection of the uniform contract approach
"might require the court to re-examine its choice of law deci-
sion." Id. at 9. The court did re-examine its 1991 decision, see
Id. at 9, but abided by it both because of manageability concerns
and because of the court's conviction that New Jersey, where a
number of the environmental claims arose, had the "dominant
significant relationship" to the transaction. Notwithstanding
the fact that Gilbert Spruance pertained solely to environmental
coverage actions, we agree that it precluded application of the
law of the case doctrine here. Although federal courts always
retain the discretion to reconsider issues already decided in the
same proceeding, see Deisler v. McCormack Aggregates Co., 54 F.3d
1074, 1086 n.20 (3d Cir. 1995); Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure:
Jurisdiction, §4478 at 789-90, courts will reconsider an issue
when there has been an intervening change in the controlling law,
when new evidence has become available, or when there is a need
to correct a clear error or prevent manifest injustice. Wright,
Miller & Kane, § 4478 at 790. We believe reconsideration was
warranted here for two reasons. First, the district court's
failure to perform a separate choice of law analysis for the
environmental coverage action and for the lead paint coverage
action constituted a clear error. Second, to the extent that the
23
III. Discussion
CU argues that the district court compounded this error
by considering the (social) policies implicated by the underlying
actions, rather than limiting its focus to the policies of
insurance law. We must address this contention before proceeding
to the appropriate choice of law framework applicable to the lead
paint coverage actions.
In coverage cases, New Jersey courts have elected to
analyze not only the policies involved in interpreting insurance
law but also those policies underlying their environmental and
tort laws. See Diamond Shamrock Chemicals, 609 A.2d at 455
("Since New Jersey has a paramount interest in the remediation of
such waste sites, and in the fair compensation of its victims,
this State's urgent concern for the health and safety of its
citizens 'extends to assuring that casualty insurance companies
fairly recognize the legal liabilities of their insureds.'")
(citing Johnson Matthey Inc. v. Pennsylvania Mfrs. Ass'n Ins.
Co., 593 A.2d 367, 370 (App. Div. 1991)). Therefore, a court
would not err by considering the interests implicated by the
underlying litigation in deciding the choice of law issue in an
insurance coverage action (to the extent that the underlying
litigation affects the interests of one of the states whose law
arguably applies). These underlying policy interests are
court conflated the environmental coverage action with this lead
paint coverage action, the change announced by Gilbert Spruance -
- creating a unique analysis for environmental coverage cases --
constituted an intervening change in the controlling law.
24
especially important in environmental coverage cases. See supra
at 18.
But the analysis of the various states' policies and
interests implicated in the environmental coverage litigation
does not track the analysis of the interests implicated by the
tort cases underlying this coverage dispute. Cf. Diamond
Shamrock, 609 A.2d at 455, 465 (applying New Jersey law to dioxin
environmental suits and New York law to Agent Orange claims).
Unlike some of the underlying environmental claims which must be
decided under New Jersey law, Pennsylvania or Louisiana law
governed the four new (underlying) lead paint actions. See
Appellant's Br. at 17. Thus, although New Jersey may have an
interest in applying its laws to coverage disputes involving
actions whose underlying merits were adjudicated under New Jersey
law (in order to assure that the state's tort policies are not
frustrated by a lack of insurance coverage), that interest is
simply inapposite to these new lead paint actions arising in
Pennsylvania and Louisiana. There is no indication, moreover,
that the district court applied New Jersey law to the coverage
dispute in an effort to protect New Jersey's tort (as opposed to
environmental) policies.
While CU's contention that the court should not have
considered the policies implicated in the underlying litigation
has no merit, the district court did, as we have stated, err by
considering policies implicated in the related but separate
environmental actions rather than those involved in the lead
paint actions. See 5/26/94 Op. at 10 (reaffirming July 1991
25
decision and explaining, "[t]hat decision was based in part on
the number of environmental claims in the companion action
arising in New Jersey, and admittedly on the need for uniformity
in the interpretation of the insurance contracts at issue in both
suits."). Even before Westinghouse was overruled by Gilbert
Spruance, the uniform contract approach should have been applied
separately to aggregate the environmental claims, which turned on
the interpretation of one clause in the insurance contract, and
to the product liability claims, which involved a different
clause of the policy and deserved, under the principles of
Restatement § 145, a separate choice of law analysis.
The court found that New Jersey had "the dominant
relationship to the parties and the underlying insurance transac-
tion" even though New Jersey's only connection to the case is its
incorporation of the defendant. To so find in spite of the facts
that the harms occurred in Pennsylvania and Louisiana and that
the insurance contracts were negotiated and executed in New York
-- so that the parties must have reasonably expected, as even the
district court recognized, New York law to apply -- manifests the
court's conflation of the relevant interests in this case with
those relevant in the environmental action. As we have
discussed, even if the environmental coverage claims and the lead
paint coverage claims were brought in a single action, § 145
required the court to conduct a separate choice of law analysis
for each of the two types of claims.
The choice of law for this non-environmental insurance
coverage action is still governed by State Farm Mut. Auto Ins.
26
Co. v. Estate of Simmons, 417 A.2d 488 (N.J. 1980), and thus,
unless a "dominant and significant relationship" mandates the
application of another state's law, the law of the place of
contract will apply. Given that the contract was negotiated,
executed and performed in New York, the district court correctly
concluded that New York was the place of contracting. We now
examine the contacts and interests relevant under Restatement §§
6 and 188 to determine whether New Jersey had a "dominant and
significant relationship" to the lead paint coverage action. See
Gilbert Spruance, 629 A.2d at 888; Simmons, 417 A.2d at 491-92.0
Section 188 lists as the contacts to be considered in
applying the interests analysis: (1) the place of contracting,
(2) the place of negotiation of the contract, (3) the place of
performance, (4) the location of the subject matter of the
contract, and (5) the domicile, residence, nationality, place of
incorporation, and place of business of the parties. Restatement
Conflicts (Second) § 188(2). These contacts overwhelmingly favor
New York in this case. As we stated earlier, NL retained a New
York insurance broker to negotiate the policies; the policies
were signed in New York by representatives from each parties' New
York office; CU coded the NL policies and premiums as New York
policies and premium taxes on these policies were paid in New
York; NL's headquarters as well as its principal business
operations were located in New York; and CU executed this
0
None of the parties argued that either Pennsylvania's or
Louisiana's law should apply to this action.
27
transaction out of its New York office. Only NL's place of
incorporation favored New Jersey law.
Even though the subject-matter-of-the-contract factor
(liability for property damage and bodily injury) does not
necessarily favor New York law, it certainly does not favor New
Jersey law. Because these contacts so clearly favor the applica-
tion of New York law, it should apply unless the interests
described by § 6 of the Restatement, see supra at 11-12,
establish a dominant and significant relationship with New
Jersey. We take these factors up seriatim.
1. The Needs of the Interstate System
The Restatement explains that this factor is intended
to "further harmonious relations between states and to facilitate
commercial intercourse." Restatement Conflicts § 6 cmt. d. The
consistency and predictability which emanate from a clear rule
foster commerce and harmonious interstate relations by reducing
the uncertainty associated with entering into commercial transac-
tions. Relative to the multifactored interest analysis, the lex
loci contractus rule typically better protects both the parties'
reasonable expectations and the consistency and predictability of
contractual adjudications. See Simmons, 417 A.2d at 496. As the
§ 188 analysis demonstrates, this factor clearly favors New York
law. Moreover, the district court acknowledged that the parties
must have reasonably expected New York law to apply. Thus, both
generally and under the specific facts of this case, the needs of
the interstate system would be best served by the choice of New
York law.
28
2. Relevant Policies of Other Interested States
State statutes which require or prohibit particular
clauses in insurance agreements evidence a state's policy in the
insurance area. See Belle v. Merchants & Businessmen's Mutual
Ins. Co., 575 A.2d 878, 881-82 (App. Div.), cert. denied, 585
A.2d 395 (N.J. 1990). But states' interests in insurance policy
interpretation are not limited to those explicitly articulated in
these sorts of statutes. As we have explained, New Jersey courts
seek to avoid the frustration of the interests and policies
expressed in their substantive laws that could occur through
narrow interpretations of the coverage available under the
applicable insurance contracts. See Diamond Shamrock Chem. v.
Aetna, 609 A.2d 440 (N.J. App. Div. 1992) ("Since New Jersey has
a paramount interest in the remediation of such waste sites, and
in the fair compensation of its victims, this State's urgent
concern for the health and safety of its citizens 'extends to
assuring that casualty insurance companies fairly recognize the
legal liabilities of their insureds.'") (citing Johnson Matthey
Inc. v. Pennsylvania Mfrs. Ass'n Ins. Co., 593 A.2d 367, 370
(N.J. App. Div. 1991)). Thus, a state's interest in determining
the scope of liability in the underlying lead paint claims does
bear on the scope of coverage.
The lead paint claims whose coverage is at issue here
will be decided under Pennsylvania and Louisiana law. New York
pursues a policy of deterring the sort of conspiratorial activity
alleged to have occurred in New York by assuring that the
penalties imposed through tort awards actually impact on the
29
alleged perpetrators rather than on their insurance carriers.
See Technicon Electronics Corp. v. American Home Assur. Co., 533
N.Y.S.2d 91, 102 (App. Div. 1988), aff'd, 544 N.Y.S.2d 531 (1989)
(noting New York's policy of "assur[ing] that corporate polluters
bear the full burden of their own actions spoiling the environ-
ment" by giving pollution exclusion clauses broad effect). See
also National Starch & Chem. v. Great Am. Ins. Co., 743 F.Supp.
318, 319 n. 1 (D.N.J. 1990) (observing that relative to New
Jersey law, New York law was less favorable to insureds in
disputes involving the pollution exclusion clauses of insurance
contracts). Although the parties did not brief the nature of
Louisiana's or Pennsylvania's tort policies, i.e., whether they
favor compensation and deterrence over fostering a hospitable
business environment, it is clear that New Jersey has no interest
in interpreting the insurance contracts that could vindicate
those other states' policies. In any event, it seems unlikely
that Pennsylvania's or Louisiana's interest standing alone could
overcome the very substantial contacts and interests of New York.
3. Relevant Policies of the Forum
For a state's policies to be relevant in a choice of
law analysis, the law embodying the policy must relate to a
contact. See Veazey v. Doremus, 510 A.2d 1187, 1189-90 (N.J.
1986) ("If a state's contacts are not related to the policies
underlying its law, then that state does not possess an interest
in having its law apply."). The district court relied on the
number of environmental claims arising in New Jersey for its
conclusion that New Jersey had the dominant and significant
30
relationship necessary for the application of New Jersey law in
this case. 5/26/94 Op. at 10. Two errors render this analysis
flawed. First, this lead paint coverage case did not properly
implicate any of New Jersey's environmental policies. Second,
even if New Jersey's environmental policies were at all pertinent
in these lead paint cases, they bear no relation to New Jersey's
contacts. New Jersey's only connection to this litigation is
that NL was incorporated and had some operations there.
While these contacts might justify consideration of New
Jersey's policies in corporate governance or tax cases, they do
not justify considering New Jersey's tort policies or the related
insurance coverage policies. The district court did recognize
New Jersey's interest to "see[] that harms caused by its
corporations are properly redressed." See 5/26/94 Op. at 11.
Cf. Restatement Conflicts of Laws (Second) § 145 cmt. c ("If the
primary purpose of the tort rule involved is to deter or punish
misconduct, . . . the state where the conduct took place may be
the state of dominant interest . . . ."). However, given that
the activities complained of here (the alleged conspiracy of NL
and the Lead Industries Association to conceal the dangers of
lead paint) primarily occurred in New York, New Jersey's
disciplinary interests are attenuated. Moreover, expressions of
New Jersey's policies seem to reflect a greater emphasis on
compensation, which would favor the law of the state where the
injury occurred, than on deterrence, which would favor the law of
the state where the conduct occurred. See Diamond Shamrock, 609
A.2d at 455 (emphasizing New Jersey's "paramount interest" in
31
remediation and compensation); Leksi, 736 F.Supp. at 1334-36;
National Starch, 743 F.Supp. at 326. Thus, we find that New
Jersey's interests were either inapposite or quite small compared
to New York's.
4. Protection of Justified Expectations
Like the first factor, this factor seeks to promote
commercial transactions. By enforcing the parties' expectations,
courts interpreting contracts assure the consistency and predict-
ability necessary to a healthy business environment. Indeed, for
these very reasons, traditional contract principles direct that
the parties' objectively reasonable expectations govern the
choice of law decision. See National Starch and Chem. Co. v.
Great Am. Ins. Cos., 743 F. Supp. 318, 324 (D.N.J. 1990) ("[T]he
reasonable expectations of the parties are controlling[, and]
State Farm [v. Simmons] must be applied with a view toward
fulfillment of the parties' objectively reasonable
expectations.").0 We agree with the district court that the
parties' objectively reasonable expectations were that New York
law would govern the interpretation of these contracts. See
7/11/91 Op. at 10 ("Because all parties to the contract knew at
the time of the signing the general rule that the law of the
0
Although the National Starch court, failing to anticipate
Gilbert Spruance, applied the uniform contract approach to choose
the law of the place of contract over the laws of the states
where sites were located, its statement of the principle quoted
in the main text remains valid. The National Starch court cited
general contract cases from New Jersey to support the proposition
that reasonable expectations should govern contract issues,
including the choice of applicable law. See Meier v. New Jersey
Life Ins. Co., 503 A.2d 862, 869-70 (N.J. 1986) (using reasonable
expectations to determine scope and terms of policy surrender).
32
state in which the contract was formed governed the contract, it
is reasonable to assume that the parties reasonably expected New
York law to apply.")
Nevertheless, the district court did not accord this
consideration much weight in its analysis, principally because it
was under the erroneous impression that New Jersey's strong
interest in remediating environmental contamination within the
state gave New Jersey, where many of the waste sites were
located, a dominant interest in applying its laws to any and all
coverage disputes.0 As we have explained, however, Gilbert
Spruance only increased the importance of the interest of the
waste-site state in environmental coverage disputes, not in
product liability suits. Consequently, the objectively reasonable
expectations of the parties should have been accorded the
considerable weight that they ordinarily receive, which favors
New York law in this case.
5. The Basic Policies Underlying the Relevant
Fields of Law (Insurance and Tort Law)
The differing degrees of interest which competing
states have in vindicating various insurance and tort law
policies also affect the choice of law. Insurance law policy
deals primarily with the proper standards and procedures for the
0
The 7/11/91 district court opinion predated Gilbert Spruance and
thus did not rely on it. The district court's May 26, 1994
opinion disposing of the four new lead paint claims, see supra p.
8, does cite Gilbert Spruance in order to affirm its emphasis on
the location of the waste sites in the companion environmental
action, which was the basis for its decision to apply New Jersey
law to the lead paint claims. As we have explained, this was
incorrect.
33
fair interpretation of the insurance contract, accounting for the
interests of the insurer, the insured, and the public. Given the
overwhelming contacts of the insurance transaction to New York,
we are hard pressed to find an interest New Jersey (or any other
state) can assert in using its law to determine the balance of
relevant insurance policies.
Tort law policies, on the other hand, influence the
standards and procedures used to determine liability, fix
compensation, and deter tortious conduct. The sole interest New
Jersey could have in applying its tort law under the facts of the
lead paint cases (where the injury occurred elsewhere) would be
to discipline a company incorporated under its laws. As we have
noted, however, New Jersey seems to be more concerned with
assuring adequate funds for compensation and remediation than it
does with imposing penalties. See supra at 31-32. Because NL's
principal place of business and, perhaps more importantly, the
locus of the alleged tortious conduct were not in New Jersey, see
supra at 4-5, New Jersey's interest in disciplining the company
is weak. It is New York, as the locus of the alleged
conspiratorial acts and as NL's principal place of business,
which has the interest in fashioning the penalty imposed by the
tort system.
To the extent that the harms occurred and the injured
parties resided in Pennsylvania and Louisiana, those states may
have an interest in assuring that the tortfeasor redresses the
property damage and personal injury. The relative strength of
such an interest depends on the balance of policies -- such as
34
compensating victims or deterring culpable conduct, see
Restatement Conflicts (Second) § 145 cmt. c -- struck by the
relevant tort laws. In any case, both Pennsylvania and Louisiana
have some interest in seeing that the harms occurring within
their borders are redressed. But New Jersey does not have a
cognizable interest in applying its tort laws to these lead paint
coverage disputes.
6. Certainty, Predictability, and Uniformity of Result
This factor closely tracks the concerns embodied in the
first (needs of the interstate system) and fourth (justified
expectations of the parties) factors in its concern about the
effects of more flexible, and thus less predictable, legal rules
on commercial activity. As we have explained, New York as the
place of contracting and as the locus of the allegedly unlawful
activity would presumably apply its law to this case. The
district court correctly recognized that these parties must have
reasonably expected New York law to apply, and it is likely that
repeat players in this market, whose business the resolution of
this case will affect, would also expect New York law to apply
under these circumstances. While some might have entertained the
possibility that the insurance coverage action might be governed
by the law of the states where the harms ultimately occurred
(here, Pennsylvania and Louisiana), it is unlikely that anyone
expected that the law of a state whose connections and interests
are as tangential as New Jersey's are in this case would apply.
Indeed, to establish a standard where such comparatively minor
interests could govern would throw settled expectations into
35
disarray; parties would have no way of predicting which law would
apply to their contracts. We therefore conclude that this factor
strongly favors the choice of New York law.
7. Ease of Determination and Application
The Restatement explains that choice-of-law rules
"should be simple and easy to apply." See Restatement Conflicts
(Second) § 6, cmt. j. Presuming that the law of the place of
contracting applies to non-environmental insurance coverage
disputes provides a simple and clear cut rule for courts to apply
ex post. Such a rule also provides a stable and predictable
environment for contracting parties ex ante. This factor,
therefore, also favors New York law, although the Restatement
does not weigh this consideration too heavily. Id.
8. Summary
After performing this separate choice-of-law analysis
for the lead paint coverage disputes, we conclude that the
interests implicated in this lead paint coverage action do not
relate to the contacts NL had with New Jersey. At best, New
Jersey had an "interest in seeing that harms caused by its
corporations are properly redressed." 5/26/94 Op. at 11. But
given that NL's principal place of business was in New York and
that New Jersey's laws do not apply to the underlying products
liability actions, this interest is especially attenuated here.
In contrast, the connections of NL and of the insurance
transaction to New York are both significant and pertinent,
giving rise to the substantial interest New York has in seeing
36
its law apply: the insurance contract was negotiated and
performed in New York; the policies were coded as New York
policies; New York taxes were paid on the policies; both parties
maintained their principal places of business there; and the
conspiratorial acts underlying these lead paint claims are
alleged to have occurred there. Under Simmons, therefore, New
York law should apply.
IV. Conclusion
We will therefore reverse the judgment of the district
court and remand for further proceedings in which the court
should apply New York law to the four new lead paint actions.
Because the issues of CU's duty to defend and its rights to
contribution and allocation were improperly decided under New
Jersey law, the district court should make the New York law
determination in the first instance on remand. We do not reach
the other claims.0
0
Although CU's duty to indemnify NL for these lead paint claims
was separately adjudicated in the environmental action, which is
not before us, we believe that the foregoing analysis of Gilbert
Spruance may be pertinent to the indemnity issue as well.
37