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Appalachian Insurance Co. v. Di Sicurata

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 17, 2009

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.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Gonzalez, Renwick, JJ.

122807/96

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 AD3d 17, 22-23 [2006], affd 9 NY3d 928 [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) and that a corporate insured's domicile is the state of its principal place of business (id. at 25). 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 F2d 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 RGC Goldman Co., 287 AD2d 65, 71 [2001], lv denied 97 NY2d 611 [2002]; Bankers Trustee Co. Ltd. v First Mexican Acceptance Corp., 273 AD2d 81, 81 [2000], lv denied 95 NY2d 766 [2000]). Accordingly, we find New York law controlling in this matter.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090317

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