Opinion
No. 119.
Argued September 6, 2007.
Decided October 11, 2007.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 28, 2006. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Barbara R. Kapnick, J.), which had denied defendant Foster Wheeler Corporation's motion for partial summary judgment declaring that New Jersey substantive law governed the issues in the action and had granted defendant insurers' motion for partial summary judgment declaring that New York substantive law governed, (2) denied the defendant insurers' motion, and (3) granted defendant Foster Wheeler Corporation's motion to the extent of declaring that the liability insurance policies issued by defendant insurers providing primary and lower-level excess coverage for the same years were governed by New Jersey substantive law. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Defendant nonsettling insurers sought an apportionment of responsibility for the defense and indemnity costs of nationwide asbestos-related personal injury claims against defendant manufacturer under policies they issued while the manufacturer's principal place of business was in New Jersey.
The Appellate Division concluded that New Jersey substantive law was applicable, under a grouping of contacts analysis, to determine the coverage obligation of each nonsettling insurer in the absence of any choice-of-law provisions in the policies; that application of New Jersey law was warranted even if New York constituted the place of contracting, negotiation and the insured's performance; that in determining the law governing liability insurance policies covering multistate risks a court should look to the state of the insured's principal place of business, the insured's domicile, as the primary factor, and that the state of the insured's principal place of business had a greater concern with issues of policy construction and application bearing on the amount of coverage than did the states where contracting, negotiation, or payment of the premium occurred.
Certain Underwriters at Lloyd's, London v Foster Wheeler Corp., 36 AD3d 17, affirmed.
Crowell Moring LLP, Washington, DC ( Clifton S. Elgarten, Jonathan H. Pittman and Kathryn A. Underhill, of the District of Columbia bar, admitted pro hac vice, of counsel), and Crowell Moring LLP, New York City ( Frank M. Esposito of counsel), for appellants.
Covington Burling LLP, Washington, DC ( Robert A. Long, Jr., of the District of Columbia bar, admitted pro hac vice, and William P. Skinner, Keith A. Noreika and Ann O'Connell of counsel), and Covington Burling LLP, New York City ( Michael C. Nicholson of counsel), for respondent. Kirkpatrick Lockhart Preston Gates Ellis LLP, New York City ( David S. Vers felt of counsel), and Kirkpatrick Lockhart Preston Gates Ellis LLP, Pittsburgh, Pennsylvania ( Donald E. Seymour of counsel), for Honeywell International Inc., amicus curiae.
Vedeer, Price, Kaufman Kammholz, P.C., New York City ( John H. Eickemeyer and Marie Tieri of counsel), and Wiley Rein LLP, Washington, DC ( Laura A. Foggan and John C Yang of counsel), for Complex Insurance Claims Litigation Association, amicus curiae.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, SMITH, PIGOTT and JONES. Taking no part: Judge READ.
OPINION OF THE COURT
Order affirmed, with costs, and certified question answered in the affirmative for the reasons stated by Justice David Fried-man at the Appellate Division ( 36 AD3d 17).