11-169-cv
Lissauer v. Fireman’s Fund Insurance Companies
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of February, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 Circuit Judges,
9 ROSLYNN R. MAUSKOPF,*
10 District Judge.
11
12
13
14 SHARON LISSAUER,
15
16 Plaintiff-Appellant,
17
18 -v.- 11-169-cv
19
20 FIREMAN’S FUND INSURANCE COMPANIES,
21
22 Defendant-Appellee.
23
24
25
26 FOR APPELLANT: ALAN C. MILSTEIN, Sherman, Silverstein,
27 Kohl, Rose & Podolsky, P.A., Moorestown,
28 N.J.
29
*
Judge Roslynn R. Mauskopf, of the United States District
Court for the Eastern District of New York, sitting by
designation.
1 FOR APPELLEE: EVAN H. KRINICK (Stuart M. Bodoff, on the
2 brief), Rivkin Radler LLP, Uniondale,
3 N.Y.
4
5 Appeal from the United States District Court for the
6 Southern District of New York (Kaplan, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the United States District
10 Court for the Southern District of New York be AFFIRMED.
11 Appellant appeals from a judgment of the United States
12 District Court for the Southern District of New York
13 (Kaplan, J.), which granted Appellee Fireman’s Fund
14 Insurance Companies’ motion for summary judgment. We assume
15 the parties’ familiarity with the underlying facts, the
16 procedural history, and the issues presented for review.
17 Appellant Sharon Lissauer invested with Bernard Madoff
18 Investment Securities for almost twenty years. When
19 Madoff’s Ponzi scheme unraveled in the fall of 2008,
20 Lissauer suffered significant losses. Lissauer sought
21 coverage for those losses under a homeowner’s insurance
22 policy issued to her by American Insurance Company, one of
23 the Fireman’s Fund Insurance Companies. The carrier denied
24 coverage, but offered and did pay the policy’s money sub-
25 limit of $2,000 for each of three policy years, totaling
26 $6,000, under a full reservation of rights.
2
1 Lissauer then sued in the United States District Court
2 for the Southern District of New York for, among other
3 things, a declaration that her Madoff losses were covered
4 under the policy. The district court granted the carrier’s
5 summary judgment motion, finding that even if Lissauer's
6 investments constituted personal property within the meaning
7 of the policy, coverage was unavailable because her property
8 did not suffer a “direct physical loss." Lissauer now
9 appeals the district court's grant of summary judgment to
10 the insurance company.
11 We review a district court’s grant of summary judgment
12 de novo and construe all evidence in the light most
13 favorable to the non-moving party. See Brod v. Omya, Inc.,
14 653 F.3d 156, 164 (2d Cir. 2011). “Summary judgment is
15 appropriate only if the moving party shows that there are no
16 genuine issues of material fact and that the moving party is
17 entitled to judgment as a matter of law.” Miller v. Wolpoff
18 & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
19 We find no error in the district court’s grant of
20 summary judgment. Even assuming that Lissauer suffered the
21 loss of an intangible “account,” Lissauer cannot demonstrate
22 that the account suffered a “direct physical loss,” as
3
1 required for coverage under the policy. See 10A Couch on
2 Insurance § 148:46 (3d ed. 2011).
3 After a thorough review of the record, we find
4 Lissauer’s remaining arguments to be without merit.
5 For the foregoing reasons, the judgment of the district
6 court is hereby AFFIRMED.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
4