United States District Court, N.D. Indiana, LaFayette Division
LANDISᦄ INC., a Delaware Corporation, f/k/a LANDIS & GYR METERING, INC., Plaintiff,
ZURICH AMERICAN INSURANCE COMPANY, a New York Corporation, f/k/a ZURICH INSURANCE COMPANY, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Partial Summary
Judgment on Choice of Law [DE 73] filed by the defendant,
Zurich American Insurance Company, on February 2, 2018, and
the Cross Motion for Partial Summary Judgment on Choice of
Law [DE 122] filed by the plaintiff, Landisᬪ Inc., on June
20, 2018. For the following reasons, the Motion for Partial
Summary Judgment on Choice of Law [DE 73] is
GRANTED, and the Cross Motion for Partial
Summary Judgment on Choice of Law [DE 122] is
plaintiff, Landisᬪ Inc., initiated this matter on October
7, 2016, against the defendant, Zurich American Insurance
Company. This action arises out of Zurich's alleged
wrongful denial of coverage and mishandling of a
long-standing environmental liability claim. Landis seeks to
recover monies it expended to investigate and remediate a
Resource Conservation and Recovery Act (RCRA) surface
impoundment waste management unit located at 3601 Sagamore
Parkway North in Lafayette, Indiana. It also has alleged that
Zurich acted in bad faith in processing the claim.
November of 1984, Landis was required to commence an
investigation under the RCRA at the Sagamore Parkway Site
(Site) in Lafayette, Indiana, in response to demands from the
United States Environmental Protection Agency (EPA) and the
Indiana Department of Environmental Management (IDEM). The
EPA identified Landis as a possible source of significant
contamination at the Site. Landis asserts that the
contamination resulted in property damage during the Zurich
policy years. Zurich contends that it has no record of this
claim. However, Landis has alleged that Zurich was notified
many years ago and wrongfully denied coverage based on the
pollution exclusion, which is not a bar to coverage under
Indiana law. Landis has indicated that it expended millions
of dollars through a lengthy RCRA Corrective Action to
investigate and to remediate contamination at the site.
Therefore, it seeks to hold Zurich liable and to obtain
restitution and recovery.
has argued that the court must undertake a choice-of-law
analysis because there are several critical coverage issues
that will depend upon which state's substantive law
applies. Specifically, Zurich has indicated that Indiana law
differs from New York and Connecticut law on the relevant
coverage issues, including the pollution exclusion, late
notice defense, and personal injury coverage. Zurich asserts
that it is entitled to summary judgment that New York law
applies to the 21 primary, excess, and excess umbrella
policies in effect from October 1, 1977 to October 1, 1986,
and that Connecticut law applies to the 6 primary, excess,
and excess umbrella policies in effect from October 1, 1986
to October 1, 1988.
filed a response in opposition on June 20, 2018, and also
filed a cross-motion for partial summary judgment on choice
of law. Landis has argued that Indiana law applies to all
insurance coverage issues, while Illinois law applies to
issues of bad faith and punitive damages. Zurich filed a
reply in further support and response in opposition on August
1, 2018, and Landis filed its reply on August 28, 2018.
to Federal Rule of Civil Procedure 56(a), summary judgment is
proper only if it is demonstrated that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Garofalo v. Vill. of Hazel
Crest, 754 F.3d 428, 430 (7th Cir. 2014); Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012);
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). A fact is material if it is outcome determinative
under applicable law. The burden is upon the moving party to
establish that no material facts are in genuine dispute, and
any doubt as to the existence of a genuine issue must be
resolved against the moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26
L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786.
the court is faced with cross-motions for summary judgment,
“the court must construe all inferences in favor of the
party against whom the particular motion is made.”
Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir.
2008). Once a party has made a properly-supported motion for
summary judgment, the opposing party may not simply rest upon
the pleadings but must instead submit evidentiary materials
which “set forth specific facts showing that there is a
genuine issue for trial.” Maclin, 520 F.3d at
786. A choice of law issue is a matter of law appropriate for
summary judgment. Flowers v. Southwest Airlines Co.,
2007 WL 118874, at *8 (S.D. Ind. 2007).
Seventh Circuit has noted that before a court engages in a
choice of law analysis, it first must determine whether a
conflict of law actually exists. In re Griffin Trading
Co., 683 F.3d 819, 824 (7th Cir. 2012) (citing
Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920,
924 (8th Cir. 2007)). In the present case, the court finds,
and the parties agree, that Indiana courts and New York and
Connecticut courts have ruled contrary to each other on
coverage issues, including the pollution exclusion.
Therefore, the court concludes that a choice of law inquiry
federal district court sits in diversity, it must determine
the applicable substantive law based on the choice of law
rules of its forum state. Rice v. Nova Biomedical
Corp., 38 F.3d 909, 915 (7th Cir. 1994). Therefore, the
court must apply Indiana choice-of-law rules. Under Indiana
law, the interpretation of insurance policies is a contract
action for choice of law purposes. Travelers Ins.
Companies v. Rogers, 579 N.E.2d 1328, 1330 (Ind.Ct.App.
1991). In contracts cases, Indiana “applies only the
law of the state with the most intimate contacts.”
Nat'l Union Fire Ins. Co. v. Std. Fusee Corp.,
940 N.E.2d 810, 815 (Ind. 2010) (citing W.H. Barber Co.
v. Hughes, 223 Ind. 570, 63 N.E.2d 417, 423 (1945)). In
determining which state has the most intimate contacts, the
list of factors that courts in Indiana are to consider
include: (1) the location of the subject matter of the
contract; (2) the place of contracting; (3) the place where
contract negotiations occurred; (4) the place of performance;
and (5) the domicile, residence, nationality, place of
incorporation, and place of business of the parties.
Restatement (Second) of Conflict of Laws § 188
(1971). Restatement (Second) of Conflict of Laws § 193
(1971), to which subsection (1) of § 188 defers,
has further guided the court's consideration of the
subject matter of the contract. American Employers Ins.
Co. v. Coachmen Industries, Inc., 838 N.E.2d 1172,
1176-77 (Ind.Ct.App. 2005).
initial matter, the declaration pages of the Policies in
effect from October 1, 1977 to October 1, 1982 identified
Landis & Gyr, N.A., Inc. as the named insured, with an
address of either 4 Westchester Plaza, Elmsford, New York or
101 Executive Boulevard, Elmsford, New York. The Policies in
effect from October 1, 1982 to October 1, 1986 identified
Landis & Gyr, Inc. as the named insured, with an address
of 4 Westchester Plaza, Elmsford, New York. The Policies in
effect from October 1, 1986 to October 1, 1988 identified
Landis & Gyr, Inc.'s address as 100 First Stamford
Place, Stamford, Connecticut. Additionally, at various times
the Policies listed: Duncan Electric Co., Inc.; Landis &
Gyr Metering, Inc.; Moore Systems, Inc.; Landis & Gyr
Systems, Inc.; Metal Products Co.; Dayton Electronics
Products Co.; and Andover, Inc. as named insureds.
October of 1982, Landis & Gyr of North America and Landis
& Gyr New York merged to form Landis & Gyr, Inc.
Landis & Gyr, Inc. would have 2 main subsidiaries, the
Duncan Division, consisting of Metal Products, Dayton
Electronics, and Duncan Electric, and Moore Systems. [DE 74-2
at 21]. In 1984, Landis changed the name of Duncan Electric
to Landis & Gyr Metering. [DE 74-2 at 90]. Landis's
Rule 30(b)(6) deponent, John Mastarone, indicated that Duncan
Electric and Landis & Gyr Metering, Inc. ...