APPALACHIAN INSURANCE COMPANY v. General Electric Company, Defendant-Appellant. (2009)

Supreme Court, Appellate Division, First Department, New York.

APPALACHIAN INSURANCE COMPANY, Plaintiff, v. RIUNIONE ADRIATIC DI SICURATA, etc., et al., Defendants, Century Indemnity Company, etc., et al., Defendants-Respondents, General Electric Company, Defendant-Appellant.

Decided: March 17, 2009

MAZZARELLI, J.P., ANDRIAS, GONZALEZ, RENWICK, JJ.

McCarter & English LLP, New York City (Keith E. Lynott, Gita F. Rothschild, Brian J. Osias, J. Forrest Jones of counsel), for General Electric Company, defendant-appellant. Ford, Marrin, Esposito, Witmeyer & Gleser L.L.P., New York City (Elizabeth M. DeCristofaro, of counsel), for Continental Casualty Company and Continental Insurance Company, defendants-respondents. White and Williams LLP, Philadelphia, PA (Patricia B. Santelle, Thomas M. Going, Daniel M. Isaacs of counsel), for Century Indemnity Company, Pacific Employers Insurance Company, and OneBeacon America Insurance Company, defendants-respondents. Rivkin Radler LLP, Hackensack, NJ (Brian R. Ade of counsel), for Federal Insurance Company, defendant-respondent. Thorp Reed & Armstrong LLP, Philadelphia, PA, for Lincoln Insurance Company, defendant-respondent. Landman, Corsi, Ballaine & Ford P.C., New York City (Michael L. Gioia of counsel), and Thorp Reed & Armstrong, LLP, Philadelphia, PA, for Republic Insurance Company, defendant-respondent. Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Michael J. Balch, James P. Nonkes of counsel), for General Reinsurance Corporation and North Star Reinsurance Corporation, defendants-respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 18, 2008, which granted defendants-respondents' motions for partial summary judgment, denied defendant-appellant General Electric (GE)'s cross motion for partial summary judgment, and determined that New York law governs the insurance coverage issues raised in this action, unanimously affirmed, with costs.

We have held that a contract of liability insurance is “governed by the law of ‘the state which the parties understood was to be the principal location of the insured risk ․’ ” (Certain Underwriters at Lloyd's, London v. Foster Wheeler Corp., 36 A.D.3d 17, 22-23, 822 N.Y.S.2d 30 [2006], affd. 9 N.Y.3d 928, 844 N.Y.S.2d 773, 876 N.E.2d 500 [2007] ), that “where it is necessary to determine the law governing a liability insurance policy covering risks in multiple states, the state of the insured's domicile should be regarded as a proxy for the principal location of the insured risk” (id. at 24, 822 N.Y.S.2d 30) and that a corporate insured's domicile is the state of its principal place of business (id. at 25, 822 N.Y.S.2d 30). The contracts of liability insurance at issue here, which do not contain choice-of-law clauses and cover risks that are spread through multiple states, were purchased by GE, which, having obtained rulings in its favor as to its principal place of business (see e.g. Gafford v. General Elec. Co., 997 F.2d 150, 161-163 [6th Cir.1993]; Northeast Nuclear Energy Co. v. General Elec. Co., 435 F.Supp. 344, 347-348 [D.Conn.1977] ), is judicially estopped from denying that its principal place of business is New York (see e.g. D & L Holdings, LLC v. RCG Goldman Co., 287 A.D.2d 65, 71, 734 N.Y.S.2d 25 [2001], lv. denied 97 N.Y.2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002]; Bankers Trustee Co. Ltd. v. First Mexican Acceptance Corp., 273 A.D.2d 81, 81, 710 N.Y.S.2d 880 [2000], lv. denied 95 N.Y.2d 766, 717 N.Y.S.2d 547, 740 N.E.2d 653 [2000] ). Accordingly, we find New York law controlling in this matter.

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