15‐2809
Hartford Underwriters Ins. Co. v. Hanover 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 29th day of June, two thousand sixteen.
PRESENT: RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
______________________
HARTFORD UNDERWRITERS
INSURANCE COMPANY,
Plaintiff‐Appellant,
v. No. 15‐2809
HANOVER INSURANCE COMPANY,
Defendant‐Appellee.
______________________
FOR PLAINTIFF‐APPELLANT: STEPHEN M. LAZARE (Marci
Goldstein Kokalas, on the brief),
Lazare Potter & Giacovas LLP, New
York, NY.
FOR DEFENDANT‐APPELLEE: ROBERT L. JOYCE, Littleton Joyce
Ughetta Park & Kelly LLP, Purchase,
NY.
Appeal from the United States District Court for the Southern District of
New York (Abrams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiff‐Appellant Hartford Underwriters Insurance Company
(“Hartford”) appeals from an August 11, 2015 decision of the United States
District Court for the Southern District of New York granting a motion to dismiss
by Defendant‐Appellee Hanover Insurance Company (“Hanover”) and denying
Hartford’s cross‐motion for summary judgment. The dispute turns on the
interpretation of language within the insurance contracts at issue. The sole
question is whether Hanover’s policy is excess to and thus does not contribute
with Hartford’s.1
This Court reviews de novo a district court’s grant of a motion to dismiss under Federal
1
Rule of Civil Procedure 12(b)(6), “accepting the allegations in the complaint as true and
drawing all reasonable inferences in favor of the non‐moving party.” Gonzalez v. Hasty,
2
As the District Court observed, “[i]t is undisputed that the Hartford and
Hanover Policies are primary policies with ‘other insurance’ clauses that render
them excess coverage with regard to ‘non‐owned autos,’ i.e., the subject of the
Underlying Action.” Special App. 8. It is also undisputed that New York law
governs this action. See id. The parties dispute only the priority of coverage
between the two policies.
Under New York law, “[t]here is . . . [a] well‐settled equitable right to
contribution, where there is concurrent insurance even in the absence of a policy
provision for apportionment.” Travelers Ins. Co. v. Gen. Accident, Fire & Life
Assurance Corp., 28 N.Y.2d 458, 463 (1971). “[W]here each of the policies covering
the risk ‘generally purports to be excess to the other, the excess coverage clauses
are held to cancel out each other and each insurer contributes in proportion to its
limit amount of insurance . . . .’” U.S. Fire Ins. Co. v. Fed. Ins. Co., 858 F.2d 882,
885 (2d Cir. 1988) (quoting Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d
651, 655 (1980)); accord State Farm Fire & Cas. Co. v. LiMauro, 65 N.Y.2d 369, 373–
74 (1985). “Thus, though it is possible for an insurer to provide ‘that it would, in
effect, supply only the final tier of coverage,’ if other policies similarly purported
802 F.3d 212, 219 (2d Cir. 2015). We assume the parties’ familiarity with the facts and
record below, which we reference only as necessary to explain our decision.
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to provide final‐tier coverage, all such insurers would be required ‘to contribute
ratably’ toward any settlement.” U.S. Fire Ins. Co., 858 F.2d at 885 (quoting
Lumbermens, 51 N.Y.2d at 656 n. *). “The general rule of ratable contribution is
inapplicable, however, if it ‘would effectively deny and clearly distort the plain
meaning of the terms of the policies.’” Id. (quoting Lumbermens, 51 N.Y.2d at
655).
For substantially the reasons stated by the District Court, we find that the
Hanover Policy is excess to and thus does not contribute with the Hartford
Policy. The language of the Hartford Policy contemplates contribution with
other excess coverage while the Hanover Policy does not; the Hartford Policy
says that it will contribute with other coverage “on the same basis, either excess or
primary,” App. 526, whereas the Hanover Policy states that it is excess over any
other coverage, “whether primary, excess, contingent or on any other basis,”
App. 533. The Hanover Policy further states that it has no duty to defend “if any
other insurer has a duty to defend” and that it pays on a loss only if that loss
“exceeds” what other insurance would pay. App. 533.
The Appellant argues that the language in Hanover’s policy noting that
“[t]his insurance is excess over[ a]ny other insurance, whether primary, excess,
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contingent or on any other basis” has been held to be materially identical for
purposes of this inquiry to the language in Hartford’s policy stating that “the
insurance provided by this Coverage Form is excess over any other collectible
insurance,” thereby rendering erroneous any reliance by the District Court on
this particular language. See Appellant’s Br. at 15 (citing LiMauro, 65 N.Y.2d at
378 (observing that the absence of the more specific words “whether primary,
excess or contingent” did not subvert the conclusion that a policy nevertheless
manifested an intention to be excess to excess)); but see Lumbermens, 51 N.Y.2d at
655–56 (holding, in a decision not overturned by LiMauro, that, in part because a
policy “provided for coverage in excess of ‘any other valid and collectible
insurance available to the insured, whether such other insurance is stated to be
primary, contributing, excess or contingent,’” the policy “specifically provided
coverage in excess of all other coverage available, including excess coverage”).
The Appellant also argues that the contribution provisions in Hanover’s policy
do not negate contribution.
Both of these arguments misconstrue the District Court’s holding. Even
assuming arguendo that there is no material distinction between the quoted
language in both parties’ insurance contracts, that would not mean that
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Hanover’s relevant language does not negate an intention to contribute with
other excess policies; instead, it would mean at best that the quoted language in
both policies evinces such an intention. See LiMauro, 65 N.Y.2d at 378 (finding
that the more specific language was not necessary for the language to otherwise
manifest an intention to negate, but nowhere implying that the specific language,
when present, could fail to express such an intention). That intention to negate
would then be subverted by Hartford’s contribution provision, thus rendering
Hartford’s policy merely excess—but not by Hanover’s, thus rendering
Hanover’s policy excess to excess.2
In short, then, the District Court’s holding rests neither on the premise that
the quoted language in Hartford’s and Hanover’s policies is materially distinct—
though that may be the case—or on the premise that Hanover’s contribution
policy expresses an intention to negate. Instead, even assuming all of Hartford’s
legal premises to be correct, it would be the case that both policies initially evince
2 This two‐step analysis is precisely in line with the Second Department’s interpretation
of the very same Hartford policy, finding that the above‐quoted language in Hartford’s
policy does express an intention to negate contribution, but that this intention is
contradicted by the contribution provision. See Liberty Mut. Ins. Co. v. Hartford Ins. Co. of
Midwest, 811 N.Y.S.2d 716, 720 (N.Y. App. Div. 2d Dep’t 2006) (“The Hartford policy’s
‘other insurance’ clause stated that the policy, with respect to vehicles not owned by
[the insured], was ‘excess over any other collectible insurance.’ However, the policy also
expressly contemplated contribution with other insurers whose policies covered ‘on the
same basis, either excess or primary.’” (emphasis added)).
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an intent to negate contribution with other excess providers—but while that
inference is not contradicted (whether or not supported) by Hanover’s
contribution provision text, it is subverted by Hartford’s.
We have considered Hartford’s remaining arguments and find them to be
without merit. We therefore AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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