Crucible Materials Corp v. Certain Underwiters at Lloyd's
(2d Circ. May 14, 2009 (New York))
The plaintiff insured alleged that defendant insurer breached an excess insurance contract insuring against property damage claims arising from the insured's manufacturing operations at 18 sites across the United States. Concluding that the insured failed to present evidence of the terms of the contract, the United States District Court New York granted summary judgment to the insurer. The district court based its decision awarding summary judgment in favor of the insurer on its observation that the insured had failed to produce a copy of the excess liability policy and on its holding that that, accordingly, the insured had failed to meet the burden of proving the terms of the policy. On appeal, the court held that the insured was not afforded a full and fair opportunity to demonstrate that there were genuine issues of material fact with respect to the terms of the policy. The insurer had not argued in its motion for summary judgment that it was entitled to prevail on the basis that there was no genuine issue as to the terms of the policy and had acknowledged the existence of a factual dispute with respect to the terms of the policy. Because the insured was not afforded adequate notice that the district court had under advisement the question of an asserted failure to prove the terms of the policy, the district court erred in granting summary judgment to the insurer on that basis.
By Daniel W. Gerber and Richard J. Cohen