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United States Court of Appeals, Tenth Circuit.

SINCLAIR WYOMING REFINING COMPANY, Plaintiff-Appellant/ Cross-Appellee, v. INFRASSURE, LTD, Defendant-Appellee/ Cross-Appellant.

No. 19-8017

Decided: May 15, 2020

Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON, Circuit Judges. Marc James Ayers, Bradley Arant Boult Cummings, Birmingham, AL, JoAnna DeWald, Holland & Hart LLP, Cheyenne, WY, Marcy Geoffrey Glenn, Esq., Holland & Hart, Denver, CO, Alicia Kate Margolis, Bradley Arant Boult Cummings, Jackson, MS, for Plaintiff-Appellant David Michael Cooper, Guyon H. Knight, Quinn Emanuel Urquhart & Sullivan, New York, NY, Aaron John Lyttle, Randall B. Reed, Long Reimer Winegar Beppler, Cheyenne, WY, for Defendant-Appellee


The United States Court of Appeals for the Tenth Circuit, acting under Tenth Circuit Rule 27.2, asks the Supreme Court of Wyoming to exercise its discretion under Rule 11 of the Wyoming Rules of Appellate Procedure to accept the following certified question of law:

Whether, under Wyo. Stat. Ann. § 26-15-101(a)(ii), an insurance policy is “issued for delivery” or “delivered” in Wyoming where a Wyoming corporation is a named insured, the policy covers risks in Wyoming, and the policy provides that coverage shall apply “in the same manner and to the same extent” as if the policy had been issued to the Wyoming corporation, but no copy was ever conveyed to Wyoming and the policy only lists an out-of-state address for the insured?

This question presents a novel issue for Wyoming courts, and the answer will be determinative of the appeal now pending in this court. Should it accept, the Supreme Court of Wyoming may reformulate this question as it sees fit.

I. Background

This appeal arises out of an insurance dispute regarding a fire in Sinclair Wyoming Refining Company's (Sinclair) petroleum refinery. As relevant to this certification request, Sinclair seeks attorney's fees under Wyo. Stat. Ann. § 26-15-124(c) from its insurer, Infrassure, Ltd., for what Sinclair alleges is an unreasonable refusal to pay the full amount of its covered loss resulting from the fire.

Sinclair and its parent companies are incorporated in Wyoming, where Sinclair's refineries are located. In order to insure operations at these refineries for the calender year of 2013, one of Sinclair's parent companies, The Sinclair Companies, solicited an all-risk insurance policy (the Policy), see Attachment, on the London market. The Policy covers fire damage, as well as certain business interruption losses caused by any fire. Attachment at 6. The Policy lists The Sinclair Companies as the “first named insured.” Id. at 2. Although the Policy describes The Sinclair Companies as a “Wyoming Corporation,” id. at 34, it nowhere lists a Wyoming address. Instead, the Policy provides only a Utah address as The Sinclair Companies’ “principal address.” Id. at 2.

The Policy also lists a number of The Sinclair Companies’ subsidiaries, including Sinclair, as named insureds. Id. at 34. But for all of these additional named insureds, the Policy lists only one address—the same Utah address provided for The Sinclair Companies. Id.

Eighteen separate insurers subscribed to provide coverage under the Policy. Infrassure, as one of the eighteen, assumed several liability for 7.5% of any covered loss.

After the fire occurred at Sinclair's refinery, Sinclair filed a claim under the Policy. After twenty months of claim adjustment, Sinclair settled its claim with the other seventeen insurers, but Infrassure disagreed with the settlement value and refused to settle. Infrassure's principal objection concerned how best to calculate Sinclair's covered business interruption losses. Litigation ensued between Sinclair and Infrassure in federal district court.

In the context of this litigation, Sinclair brought a claim for attorney's fees under Wyo. Stat. Ann. § 26-15-124(c) alleging Infrassure unreasonably failed to pay the full value of its insurance claim. Nowhere in the operative complaint did Sinclair allege that the Policy was issued for delivery or delivered in Wyoming. Infrassure moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting § 26-15-124(c) was inapplicable because § 26-15-101—the gateway provision for the Wyoming insurance code—only permits reliance on § 26-15-124(c) when the insurance policy at issue was “delivered” or “issued for delivery” in Wyoming. See Wyo. Stat. Ann. § 26-15-101(a)(ii). Because the Policy was neither delivered nor issued for delivery in Wyoming, Infrassure argued, Sinclair's claim should be dismissed. Sinclair responded that the statutory text should be read more broadly to apply to insurance policies issued to Wyoming corporations where the risks covered under the policy occurred in Wyoming.

The federal district court agreed with Infrassure and granted its motion. Recognizing that Wyoming courts had not yet addressed the issue, the district court held the terms “delivered” and “issued for delivery” required some indication that the parties intended the Policy to be delivered in Wyoming. It found that merely covering property or risks located in Wyoming was insufficient for an insurance policy to trigger application of the Wyoming code. Sinclair appealed.

II. Analysis

The Supreme Court of Wyoming has not yet addressed the circumstances in which an insurance contract is “delivered” or “issued for delivery,” leaving this court to anticipate the decision it would make. Bird v. West Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (“Where the state's highest court has not addressed the issue presented, the federal court must determine what decision the state court would make if faced with the same facts and issue.”). In interpreting statutes generally, the Supreme Court of Wyoming has explained:

We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.

Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm'n, 320 P.3d 222, 228 (Wyo. 2014) (internal citations omitted).

It remains unclear how the Supreme Court of Wyoming would apply these principles to the interpretive question presented here. A straightforward reading of the statutory text suggests the district court was correct to require at least some indication that the parties intended the Policy to be delivered in Wyoming. See GEICO v. Benton, 859 F.2d 1147, 1151 (3d Cir. 1988) (holding “delivered” in the insurance context is an unambiguous term that “refers to that moment when [the insured] receive[s] the policy from [the insurer] through the mail”). Because delivery serves as the central fulcrum under the statute for whether the provisions of the Wyoming insurance code apply, the plain meaning of the text appears to require either an actual or intended conveyance of the Policy in Wyoming.

Numerous courts, including our own, have embraced this interpretation in addressing similar insurance statutes. See, e.g., Buell v. Sec. Gen. Life Ins. Co., 987 F.2d 1467, 1470 (10th Cir. 1993) (finding a Colorado insurance statute that “applied only to policies delivered or issued for delivery in Colorado” inapplicable despite the fact that the insured was located in Colorado and had received a certificate of insurance there); see also McDermott Int'l, Inc. v. Lloyds Underwriters of London, 120 F.3d 583, 584 (5th Cir. 1997) (holding an insurance policy was neither “delivered” nor “issued for delivery” in Louisiana despite the fact that the insurance policy was issued to a company headquartered in Louisiana, and a copy was sent there); New England Mut. Life Ins. Co. v. Gray, 786 F.2d 406, 411 (6th Cir. 1986) (holding a Michigan statute covering any policy “delivered or issued for delivery” in Michigan inapplicable where a Michigan resident was covered by a group health policy issued in Minnesota, even though he received a certificate of insurance in Michigan).

Most recently, this court considered the specific provision at issue—Wyo. Stat. Ann. § 26-15-101(a)(ii)—and held that it precluded reliance on Wyo. Stat. Ann. § 26-15-124(c) where it was undisputed that the insurance policies were issued and delivered in Texas. Lexington Ins. Co. v. Precision Drilling Co., L.P., 951 F.3d 1185, 1197 (10th Cir. 2020). We reached this result even though the insurance policies were intended to cover contractors and subcontractors working in Wyoming. Id. at 1187.1

But not all jurisdictions embrace this reading. For example, New York courts recently adopted a broader interpretation focused on the location of the insured and the risk of loss. In Preserver Insurance Co. v. Ryba, the New York Court of Appeals held a policy was “issued for delivery” in New York where it “cover[ed] both insureds and risks located in [New York].” 10 N.Y.3d 635, 862 N.Y.S.2d 820, 893 N.E.2d 97, 100 (2008); see also Carlson v. Am. Int'l Grp., Inc., 30 N.Y.3d 288, 67 N.Y.S.3d 100, 89 N.E.3d 490, 501 (2017) (reaffirming Preserver). Relying on this more expansive interpretation, Sinclair contends that because it is a Wyoming corporation, and the risks covered by the Policy existed in Wyoming, the Policy should be deemed “delivered” or “issued for delivery” in Wyoming under § 26-15-101(a)(ii).

Sinclair argues the Policy's language further necessitates this outcome because it is undisputed that, under the Policy, Infrassure “issue[d]” coverage to Sinclair. The Policy states that “if the Insured comprises more than one insured party,” as is the case here, then “cover [under the Policy] shall apply in the same manner, and to the same extent, as if individual policies had been issued to each such insured party․” Attachment at 31. Sinclair claims this language demonstrates Infrassure's intent to issue coverage to Sinclair, which Sinclair argues is sufficient to defeat the preclusive application of § 26-15-101(a)(ii) and enable it to rely on the protective provisions of the Wyoming insurance code.

Because the central issue before our court involves interpretation of a Wyoming statute with potentially extensive effects regarding the applicability of the Wyoming insurance code, the Supreme Court of Wyoming is best suited to resolve the meaning of the statute. This rings especially true in light of the disparate conclusions other courts have reached when confronted with similar provisions. The certified question is a pure question of law and does not entail any factual disputes for the court to resolve. Accordingly, in furtherance of comity and federalism, we conclude the Supreme Court of Wyoming should have the opportunity to answer this important question. We greatly appreciate its consideration of this request.

III. Conclusion

Pursuant to Tenth Circuit Rule 27.4 and Rule 11 of the Wyoming Rules of Appellate Procedure, we CERTIFY the question outlined above to the Supreme Court of Wyoming. The appeal is ABATED pending resolution of the certified question. The clerk of this court shall submit to the Supreme Court of Wyoming a certified copy of this order, together with copies of the briefs filed in this court and a copy of the judgment of the district court.



1.   In Lexington, this court was not presented with any argument regarding an alternative, broader interpretation of Wyo. Stat. Ann. § 26-15-101 and the policies at issue explicitly stated the location of issuance and delivery in a way the Policy here does not.

Timothy M. Tymkovich, Chief Judge

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