United States District Court, S.D. Indiana, Indianapolis Division
ELI LILLY AND COMPANY, et al. Plaintiffs,
ARCH INSURANCE COMPANY, et al. Defendants.
CORRECTED ORDER ON CERTAIN DEFENDANTS' MOTION FOR
J. McKINNEY, JUDGE
Arch Insurance Company and Arch Specialty Insurance Company
(collectively, “Arch”), have moved for the Court
to seek the assistance of the Brazilian Superintendence of
Private Insurance (“SUSEP”) on an issue involving
excess insurance policies. Dkt. No. 498. Plaintiffs Eli Lilly
and Company (“Lilly”) and Eli Lilly do Brasil
(“Lilly Brasil”) (collectively,
“Plaintiffs”), assert that Arch's request is
both unnecessary and improper. For the reasons stated herein,
the Court DENIES Arch's motion.
in this case seek defense and coverage under general
liability insurance policies for claims arising in Brazil
against Lilly do Brasil. Specifically, Plaintiffs seek (1)
defense and, if necessary, indemnification against suits
brought by the Brazilian government and individuals who
worked at or lived near a facility formerly owned and
operated by Lilly Brasil, which allege environmental
contamination and personal injury, respectively
(collectively, the “underlying suits”); and (2)
the costs of investigating and remediating the contamination.
Arch denies any defense, indemnity, or remediation cost
obligations. Simply put, the parties dispute whether or not
either Plaintiff could properly recover under the insurance
contracts at issue. The Arch policies at issue are excess
insurance policies purchased by Lilly during the years 2003
to 2013. Dkt. Nos. 459-6 to 459-21. The Arch policies follow
form to primary insurance policies issued by Liberty Mutual
Fire Insurance Company (“Liberty Fire”). Dkt.
Nos. 459-22 to 459-28.
November 20, 2015, Arch filed a Motion for Judgment on the
Pleadings challenging Plaintiffs' standing and alleging,
among other things, that reformation of the insurance
agreements would violate Brazilian law. Dkt. No. 303. On the
same date, Arch filed a Notice of Application of Foreign Law
asserting, generally, that Brazilian insurance law should
apply to Lilly Brasil's claim(s) that it is covered under
Arch's policies. Dkt. No. 301.
15, 2016, Lilly filed its response to Arch's Motion for
Judgment on the Pleadings and a Cross Motion for Partial
Summary Judgment. Dkt. Nos. 456; 460. In pertinent part,
Lilly seeks summary judgment on its claim that the Arch
policies cover both Lilly and Lilly Brasil for the underlying
suits and on Arch's affirmative defense under Brazilian
law. Dkt. No. 460 at 1-3.
20, 2016, the Court converted Arch's Motion for Judgment
on the Pleadings to a motion for summary judgment and lifted
a partial stay on discovery beteen Arch and Plaintiffs. Dkt.
August 15, 2016, Arch filed the instant motion in which it
requests that the Court present a question to SUSEP pursuant
to Rule 44.1 of the Federal Rules of Civil Procedure. Dkt.
Nos. 498 & 500. Specifically, Arch seeks to have this
Court submit the following question directly to SUSEP:
Does the law of Brazil allow a Brazil-domiciled company to be
insured for local risks in Brazil by non-admitted insurance
without complying with Brazilian insurance laws and without
paying insurance premium taxes to the government of Brazil,
if the insurance is paid for by an entity that is neither
organized nor domiciled in Brazil?
Dkt. No. 500 at 5. Essentially, Arch argues that this Court
is incapable of deciding whether or not Brazilian law applies
in this case without SUSEP's answer to this question.
44.1 provides, in pertinent part, “In determining
foreign law, the court may consider any relevant material or
source, including testimony, whether or not submitted by a
party or admissible under the Federal Rules of Evidence. The
court's determination must be treated as a ruling on a
question of law.” Fed.R.Civ.P. 44.1. It seems to the
Court that the Brazilian statutes, regulations and/or rules
of insurance that may become relevant are not so complicated
or unsettled that the Court could not use the materials
provided by the parties, or those that the Court may find on
its own, to make the necessary rulings. See Bodum USA,
Inc. v. La Cafeteire, Inc., 621 F.3d 624, 268-29
(7th Cir. 2010) (discussing the application of
French law and appropriate sources for same). Because that is
the case, the Court is unwilling to undertake what may be an
unprecedented action in requesting an advisory opinion from a
foreign agency. See Terre Firma Investments (GP) 2 Ltd.
v. Citigroup, Inc., 716 F.3d 296, 301-02 (2d Cir. 2013)
(Lohier, J., concurring) (recognizing that no procedure
exists to certify difficult questions of foreign law to the
courts of foreign countries); Fed. Treasury Enterprise
Sojuzpiodoimport v. Spirits Int'l B.V., 61 F.Supp.3d
372, 386 (S.D.N.Y. 2014) (expressing frustration that no
system for certifying unsettled questions of foreign law to
foreign courts exists), rev'd on other grounds, 809 F.3d
737 (2d Cir. 2016).
reasons stated herein, the Court DENIES Defendants', Arch
Insurance Company and Arch Specialty Insurance Company,
Motion for ...