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Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York

United States Court of Appeals, Second Circuit

May 20, 2016

FIREMAN'S FUND INSURANCE COMPANY, ONE BEACON INSURANCE COMPANY, NATIONAL LIABILITY AND FIRE INSURANCE COMPANY, QBE MARINE & ENERGY SYNDICATE 1036, Plaintiffs -- Counterclaim-Defendants -- Appellants,
v.
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant -- Crossclaim-Defendant -- Counter-Claimant -- Appellee, MAX SPECIALTY INSURANCE COMPANY, Defendant -- Crossclaim-Defendant -- Counter-Claimant -- Appellee,
v.
SIGNAL INTERNATIONAL, LLC, Defendant -- Crossclaim-Defendant -- Cross-Claimant.

         Argued June 24, 2015.

          Appeals from the United States District Court for the Southern District of New York. No. 10-cv-1653 -- J. Paul Oetken, Judge. Fireman's Fund Insurance Company (" Fireman's Fund" ) and Signal International, LLC (" Signal" ) appealed from judgments of the United States District Court for the Southern District of New York Oetken, J.), granting summary judgment to Great American Insurance Company of New York (" Great American" ) and Max Specialty Insurance Company (" MSI" ). Fireman's Fund, Great American, and MSI underwrote insurance policies that included coverage for a dry dock that Signal owned. After the dry dock sank, Signal and Fireman's Fund sought contribution for losses and cleanup costs from Great American and MSI. Fireman's Fund initiated this action to resolve disputes regarding coverage. The district court held that the Great American and MSI policies were void because (1) Great American's pollution insurance policy was a marine insurance contract subject to the doctrine of uberrimae fidei, and Signal's failure to disclose that the dry dock had deteriorated and that repairs recommended over several years had not been made violated its duty of utmost good faith under that doctrine, and (2) Signal materially misrepresented the dry dock's condition when it applied for coverage from MSI. We AFFIRM.

         JOHN A.V. NICOLETTI (Robert A. Novak, William M. Fennell, on the brief), Nicoletti Hornig & Sweeney, New York, NY, for Plaintiffs-Appellants.

         GEORGE R. ZACHARKOW (Stephen J. Galati, Christian T. Johnson, on the brief), Mattioni, Ltd., Philadelphia, PA, for Defendant-Appellee Great American Insurance Company of New York.

         STEPHEN D. STRAUS, Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Defendant-Appellee Max Specialty Insurance Company.

         Before: CABRANES, POOLER, and DRONEY, Circuit Judges.

          OPINION

         DRONEY, Circuit Judge :

         Plaintiffs-Appellants are Fireman's Fund Insurance Company, One Beacon Insurance Company, National Liability and Fire Insurance Company, and QBE Marine & Energy Syndicate 1036 (collectively " Fireman's Fund" ), insurance companies that provided marine general liability and marine excess liability policies to Defendant--Appellant Signal International, LLC (" Signal" ).[1] Fireman's Fund and Signal appealed from a judgment of the United States District Court for the Southern District of New York (Oetken, J. ), granting summary judgment to Defendants-Appellees Great American Insurance Company of New York (" Great American" ) and Max Specialty Insurance Company (" MSI" ).

         Fireman's Fund, Great American, and MSI issued insurance policies that provided various coverages for a dry dock in Port Arthur, Texas owned by Signal. After the dry dock sank in 2009, Signal and Fireman's Fund sought contributions from Great American and MSI for the loss of the dry dock and resulting environmental cleanup costs. The district court ruled in adjudicating a number of summary judgment motions that the Great American and MSI policies were void in light of Signal's failure to disclose when it applied for those policies that the dry dock had significantly deteriorated and that repairs recommended by a number of consultants and engineers over several years had not been made.

         After submission of this appeal, MSI and Signal reached a settlement and obtained a dismissal of the case between them. Therefore, Signal no longer appeals the grant of summary judgment to MSI. Nonetheless, Fireman's Fund asserts that it may still pursue appeal of the issues relating to the policy issued to Signal by MSI based on our decision in Maryland Cas. Co. v. W.R. Grace & Co. See 218 F.3d 204, 211 (2d Cir. 2000) ( " [T]he contract of settlement an insurer enters into with the insured cannot affect the rights of another insurer who is not a party to it. Instead, whatever obligations or rights to contribution may exist between two or more insurers of the same event flow from equitable principles." ). Fireman's Fund was granted summary judgment below against MSI on a contribution claim based on MSI's policy, and we assume without deciding that Fireman's Fund is correct that it may pursue this appeal of the district court's decision finding the MSI policy void, based on Fireman's Fund's interest in the unappealed summary judgment decision on contribution.

         We agree with the district court's orders. We hold that the Great American policy was a marine insurance contract subject to the doctrine of uberrimae fidei and that Signal's nondisclosure violated its duty under that doctrine, permitting Great American to void the policy. We further hold that MSI's policy was governed by Mississippi law; that, under that law, Signal materially misrepresented the dry dock's condition; and that MSI was entitled to void the policy on that basis. Accordingly, we AFFIRM.

         BACKGROUND

         I. Factual Background

         A. The Operation and Loss of the Dry Dock

         Signal is a marine construction firm involved principally in building and repairing ocean-going structures such as offshore drilling rigs, platforms, and barges. In 2003, Signal purchased six facilities--two in Mississippi and four in Texas--for use in its business of repairing, upgrading, and converting offshore drilling rigs.[2] One of the Texas facilities was a dockyard in Port Arthur, Texas. In acquiring that facility, Signal assumed an existing lease of a dry dock (" the dry dock" ) located along the Sabine-Neches Waterway near the Gulf of Mexico.[3] The dry dock was built in 1944 at the direction of the United States Navy to repair Navy ships. In early 2005, Signal accepted an offer from the lessor to purchase the dry dock, which Signal had been using in its operations since it assumed the lease.

         Throughout its lease and ownership of the dry dock, Signal received a number of reports on the dry dock's deteriorated condition. These included the following:

o The Heger Reports: The dry dock engineering firm Heger Dry Dock, Inc. (" Heger" ) of Holliston, Massachusetts, periodically inspected the dry dock between 2002 and 2009. In 2002, Freide Goldman Offshore--the operator of the dry dock before Signal--asked Heger to inspect the dry dock in order to provide an estimate of its fair market value.[4] In a December 2002 appraisal, Heger described " the dry dock [as being] . . . in fair to good condition, with the exception of the pontoon deck . . ., which [was] in poor condition and should be replaced, and section H, which showed markedly more corrosion internally . . . ." [5] J.A. 4215. Heger estimated that the dry dock would have " 10 years of remaining useful life if the pontoon deck [was] completely repaired," but the costs of making these " extensive repairs" in the United States rendered the dry dock's value " below zero." [6] J.A. 4215, 4216. In a series of subsequent reports from 2007 through 2009 commissioned by Signal to assist it in prolonging the existing life of the dry dock, Heger found that the dry dock had continued to deteriorate and that long-term repairs had not been made. Instead, Signal had simply patched damaged areas with " doublers." [7] J.A. 688. Heger provided recommendations for extensive repairs that would be required for the dry dock to continue to operate safely. However, Heger repeatedly advised that " the expected life extension for the dock . . . [would] only be a few years" and therefore " the cost, time and effort to perform this work [was] not economically justifiable." J.A. 689. Heger also provided Signal with plans for converting the dry dock to a seven-pontoon configuration (by removing Pontoon H) but warned that " the dry dock structure . . . should be satisfactorily restored before using the dock or proceeding with any modifications." J.A. 4513-14.
o The ABS Audits: Auditor ABS Consulting (" ABS" ) of Houston, Texas, a maritime risk management firm, was designated by the Port of Port Arthur to review and report on Signal's maintenance and repair programs at the dry dock. In 2003, ABS observed " the rapidly increasing rate of overall deterioration" of the dry dock, which was " largely due to the drydock's age . . ., and . . . lack of adequate maintenance and/or repair." J.A. 4166. ABS noted that, although it had notified the dry dock's owners and operators in January 2000 of the " advanced state of . . . deterioration," they had " made no apparent efforts" to implement ABS's recommended repairs. J.A. 4168. Instead, " more than a hundred doubler plates ha[d] been welded over severely wasted/holed . . . platings." J.A. 4167. Six months later, ABS reported that Pontoon H was " leaking severely," and Pontoons E and G were " leaking significantly" as well. J.A. 4161. ABS concluded that " it appeared that unsafe drydock operations were being conducted" and recommended that " additional drydockings [not be conducted] until substantial hull repairs [were] made to 'H' pontoon and the repairs [were] verified." J.A. 4162 (emphases omitted).
o Internal Staff Study: In April 2003, Signal conducted an internal " staff study" to determine whether to purchase the leased dry dock from the Port Commission of Port Arthur. The study found that, " without major renewal costs," the dry dock's remaining useful life was " only 3 to 5 years." J.A. 4188. The study concluded that it would cost $21.88 million to extend the life of the dry dock's pontoons " for maybe 10 to 15 years." J.A. 4186-87. The study ultimately advised against purchasing the dry dock in light of its " relatively short remaining useful life and extreme costs of renewal/life extension." J.A. 4188.
o The DLS Surveys: The marine appraiser, surveyor, and consulting firm Dufour, Laskay & Strouse, Inc. (" DLS" ) of Houston, Louisiana, and Florida was hired to inspect and appraise Signal's Texas and Mississippi facilities " for the purpose of asset allocation and financial review" by GE Commercial Finance, Signal's financing company. J.A. 526. Between 2005 and 2007, DLS observed that the dry dock " had significant water in most compartments . . . [that] require[d] pumping and trimming every four hours," which was " indicative of some wastage holes in the bottom." J.A. 551, 4437; see also J.A. 5314. Each year, DLS noted that " [t]he deck plating . . . ha[d] significant doubler plates where plating ha[d] either wasted or separated from internal framing" and that " there was . . . a 12-long tear in the plating extending along a transverse frame" that " reportedly . . . w[ould] be fitted with a proper doubler in the near future." J.A. 551, 4437, 5314. In 2007, DLS concluded that the dry dock was in " fair to good condition" but recommended that its pontoons be dry-docked and repaired " [a]s soon as practical within the succeeding eighteen months . . . to render [it] in good stable operating condition and provide a life extension." J.A. 4437.
o The 2009 Heller Property Risk Assessment Report: Stephen Heller & Associates Inc. (" Heller" ) of Houston--a loss prevention consulting firm--was hired by Signal in 2008 to conduct a risk review of Signal's Mississippi and Texas facilities in order to " assist [insurance] underwriters in evaluating the exposures, operations, and loss prevention" for those facilities. J.A. 2267. In a January 2009 report, Heller rated the Mississippi and Texas facilities " [o]verall" as " Above Average," meaning that they met " [a]cceptable standards including some industry best practices." J.A. 2270. Heller found that " [t]he maximum foreseeable loss (MFL) or worst case scenario for these facilities [included] a sinking or structural collapse of [the] dry dock at . . . Port Arthur." J.A. 2269. The maximum foreseeable loss was described as " one of extremely low probability and frequency based on previous industry experience." J.A. 2298-99.

         Signal never replaced the dry dock's pontoons or pontoon decks. Instead, Signal continued to use inserts and doublers to patch holes in the decks.

         In 2009, Signal decided to implement the seven-pontoon configuration by removing Pontoon H. On August 20, 2009, it attempted to remove that pontoon, but during that procedure the entire dry dock sank.

         Shortly after the sinking, Signal notified the Texas General Land Office (" GLO" ), which regulates pollution affecting Texas shoreline waters, about what had occurred. In September 2009, the GLO advised Signal to " initiate immediate action to recover the . . . dry dock from Texas coastal waters." [8] J.A. 3516. In June 2010, Signal hired Weeks Marine, Inc., to manage removal of the sunken dry dock and cleanup of the site. Removal and cleanup efforts were not completed until March 2012 and resulted in $12,395,026 in costs.

         B. The Insurance Policies Covering the Dry Dock

         Signal had obtained five insurance policies that insured against risks related to the dry dock at the time of its sinking: (1) a marine general liability policy issued by Fireman's Fund; (2) a marine excess liability policy issued by Fireman's Fund; (3) a pollution policy issued by Great American (the " Pollution Policy" ); (4) a primary property insurance policy (the " PPI Policy" ) issued by Westchester Surplus Lines Insurance Company (" Westchester" ); and (5) an excess property insurance policy issued by MSI, which provided coverage in excess of the PPI Policy (the " EPI Policy" ). Only the Great American Pollution Policy and the MSI EPI Policy are at issue here.

         Great American first underwrote the Pollution Policy in 2004 and renewed it annually through 2009. To obtain the renewal of the policy for 2009, Signal completed and submitted Great American's standard " Vessel Pollution Liability Application" along with a " Schedule of Vessels," which included the dry dock and approximately twenty-five tugboats and barges owned by Signal. The Pollution Policy insured Signal against losses of up to $5 million for each property in the Schedule resulting from pollution discharges into navigable waters. The policy specifically insured against claims under the " Oil Pollution Act of 1990, . . . 33 U.S.C. [§ ] 2701 et seq. " (" OPA" ), the " Comprehensive Environmental Response, Compensation[,] and Liability Act, 42 U.S.C. [§ ] 9601, et seq. " (" CERCLA" ), and the " Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. [§ ] 1321, et seq. " (" FWPCA" ), and the costs of " on-water removal of materials of a non-OPA and non-CERCLA nature which has been mandated by an authorized public authority and [was] the result of a defined single, sudden and accidental event." J.A. 737. An endorsement to the policy also extended coverage to " all Vessels while under repair, alteration, construction, conversion or rebuilding" within 100 miles of the Port Arthur dockyard. J.A. 738.

         MSI underwrote the EPI Policy in January 2009. To apply for the policy, Signal submitted its " 2009-2010 Property Insurance Submission." This document included a " Statement of Values" that described the dry dock's value as $13.6 million and the 2009 Heller Report, but it did not include other information--such as the Heger reports, the ABS audits, or the DLS surveys--suggesting that the dry dock was in need of repair. The EPI Policy insured against loss of or damage to properties listed in the Statement of Values, as well as business interruption costs and " [e]xtra [e]xpense[s]" associated with the loss of those properties. The policy provided $15 million coverage for losses in excess of the underlying PPI Policy, which covered losses up to $10 million.

         C. Post-Loss Insurance Claims

         In January 2010, Westchester paid Signal its total coverage amount of $10 million pursuant to the PPI Policy for losses related to the dry dock. MSI paid Signal $3.6 million of its total coverage amount of $15 million under the EPI Policy based on the $13.6 million value of the dry dock, as represented in the Statement of Values. Great American refused to make any payments under its Pollution Policy.

         In meetings between Signal and its insurers in early 2010, MSI and Great American argued that their policies did not cover the costs of removing the dry dock from the Sabine-Neches Waterway and cleaning up the site. Fireman's Fund agreed to fund Signal's removal and cleanup efforts but reserved its right to seek reimbursement later from MSI and Great American.

         II. Procedural Background

         On March 2, 2010, Fireman's Fund commenced this action against Signal, Great American, and MSI, seeking a declaration as to the obligations of Signal and its insurers for losses associated with the sinking of the dry dock. MSI asserted cross-claims against Signal for the $3.6 million it had paid, and also sought to void the EPI Policy on the ground of misrepresentation after discovery revealed the various reports on the dry dock's poor condition that Signal had not provided to MSI when applying for the policy. Signal cross-claimed against MSI for cleanup and removal costs and additional damages. Great American filed claims against Signal and Fireman's Fund, seeking a declaration that the Pollution Policy was void under the maritime doctrine of uberrimae fidei, which imposes a duty of utmost good faith on the insured,[9] or alternatively under the policy's " Misrepresentation" clause.[10]

         On October 15, 2010, Signal assigned to Fireman's Fund its rights under the Great American Pollution Policy, and Fireman's Fund continued to pursue coverage against Great American. Both Signal and Fireman's Fund maintained their claims against MSI; Signal opposed MSI's efforts to obtain from Signal the $3.6 million it had already paid, and both Signal and Fireman's Fund sought additional payments from MSI under its EPI Policy.

         This appeal arises out of eight motions that were filed after the close of discovery. Fireman's Fund, Signal, Great American, and MSI moved or cross-moved on the coverage issues for the Pollution Policy and EPI Policy.[11]

         On March 25, 2013, the district court granted partial summary judgment, holding that under the EPI Policy, MSI was required to contribute to the payments that Fireman's Fund had made to Signal. Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, No. 10 Civ. 1653 (JPO), 2013 WL 1195277, at *8-9 (S.D.N.Y. Mar. 25, 2013). However, on March 31, 2014, the district court ruled--also on summary judgment--that the Great American Pollution Policy and the MSI EPI Policy were void ab initio because of Signal's failure to disclose the dry dock's deteriorated state. See Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 10 F.Supp.3d 460, 466 (S.D.N.Y. 2014). The court concluded that the Great American Pollution Policy was a marine insurance contract subject to the doctrine of uberrimae fidei and that Signal had breached its duty of utmost good faith to Great American by withholding material information about the dry dock's condition when it applied for coverage. See id. 476-93. The district court also held that the EPI Policy was void under Mississippi law because Signal had materially misrepresented the dry dock's condition in its 2009-2010 Property Insurance Submission. Id. at 494-503. The court therefore denied Fireman's Fund's and Signal's motions for summary judgment and partial summary judgment, granted MSI's and Great American's motions for summary judgment declaring the policies void, and denied the remaining motions, including MSI's motion for reconsideration of the March 25, 2013 decision on contribution. Id. at 493 & n.19, 503-04 & n.25. Fireman's Fund and Signal appealed.

         After submission of this appeal, MSI and Signal reached a settlement and obtained dismissal of the case between them. We still must address the validity of the EPI policy, however, because, notwithstanding the recent settlement between Fireman's Fund and Signal, the EPI policy is still the basis for Fireman's Fund's claim for contribution against MSI.

         DISCUSSION[12]

         I. Great American's Pollution Policy

         Fireman's Fund argues that Great American's Pollution Policy is not subject to the doctrine of uberrimae fidei. It further argues that, even if the doctrine applies, Signal did not breach its duty to Great American because it provided all information that Great American requested about the dry dock on its insurance application.

         A. Admiralty Jurisdiction and the Doctrine of Uberrimae Fidei

         Great American argues--and the district court concluded--that the Pollution Policy is void under the maritime doctrine of uberrimae fidei. For the doctrine to apply, Fireman's Fund's suit against Great American " must . . . be sustainable under the [court's] admiralty jurisdiction." Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (emphasis omitted). This is because federal courts' " authority to make decisional law for the interpretation of maritime contracts stems from the Constitution's grant of admiralty jurisdiction to federal courts." Id. ; see U.S. Const. art. III, § 2, cl. 1 (providing that the federal judicial power " shall extend . . . to all Cases of admiralty and maritime Jurisdiction" ). Thus, " the grant of admiralty jurisdiction and the power to make admiralty law are mutually dependent." Kirby, 543 U.S. at 23.

          " Title 28 U.S.C. § 1333(1) grants federal district courts the power to entertain '[a]ny civil case of admiralty or maritime jurisdiction.'" Atl. Mut. Ins. Co. v. Balfour Maclaine Int-l Ltd., 968 F.2d 196, 199 (2d Cir. 1992). " [T]his grant includes jurisdiction 'over all contracts which relate to the navigation, business, or commerce of the sea.'" Id. (ellipsis omitted) (quoting De Lovio v. Boit, 7 F.Cas. 418, 444, F.Cas. No. 3776 (C.C.D. Mass. 1815)).

          " [T]here are few 'clean lines between maritime and non10 maritime contracts.'" Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc., 413 F.3d 307, 311 (2d Cir. 2005) (quoting Kirby, 543 U.S. at 23). " The boundaries of admiralty jurisdiction over contracts are conceptual rather than spatial, and defined by the purpose of the jurisdictional grant--to protect maritime commerce." Id. (citations omitted). " [W]hether a contract is a maritime one . . . 'depends upon the nature and character of the contract,' and the true criterion is whether it has 'reference to maritime service or maritime transactions.'" Kirby, 543 U.S. at 23-24 (ellipsis omitted) (quoting N. P. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)). Our inquiry focuses on " whether the principal objective of a contract is maritime commerce." Id. at 25. " Therefore, the contract's subject matter must be our focal point." Folksamerica, 413 F.3d at 312.

          " [A]dmiralty jurisdiction will exist over an insurance contract where the primary or principal objective of the contract is the establishment of 'policies of marine insurance.'" Id. at 315 (quoting Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 35, 20 L.Ed. 90 (1870)). " [W]hether an insurance policy is marine insurance depends on 'whether the insurer assumes risks which are marine risks.'" Id. at 316 (quoting Jeffcott v. Aetna Ins. Co., 129 F.2d 582, 584 (2d Cir. 1942)). " [A]n insurance policy's predominant purpose, as measured by the dimensions of the contingency insured against and the risk assumed, determines the nature of the insurance." Id. at 317 (quoting Acadia Ins. Co. v. McNeil, 116 F.3d 599, 603 (1st Cir. 1997)). Thus, " [u]ltimately, coverage determines whether a policy is 'marine insurance,' and coverage is a function of the terms of the insurance contract and the nature of the business insured." Id.

          The question of whether an insurance contract is subject to the court's admiralty jurisdiction " ha[s] implications beyond conferring federal jurisdiction." Id. at 310. In particular, " [w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation." Kirby, 543 U.S. at 22-23.

          Under federal law, a marine insurance contract is subject to " the federal maritime doctrine of uberrimae fide, or utmost good faith." Folksamerica, 413 F.3d at 310; see also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir. 1986) (" [T]he substantive law governing marine insurance . . . . [includes the] well-established [principle that] under the doctrine of uberrimae fidei. . . the parties to a marine insurance policy must accord each other the highest degree of good faith." ). The doctrine is a recognition that " the [insured] is more likely to be aware of . . . information" that " materially affects the risk being insured," N.Y. Marine & Gen. Ins. Co. v. Tradeline (L.L.C.), 266 F.3d 112, 123 (2d Cir. 2001) , and that " [o]ften the insurer lacks the practicable means to verify the accuracy or sufficiency of facts provided by the insured for purposes of establishing the contractual terms," 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 19-14, at 404-05 (5th ed. 2011). For example, the vessel to be insured may be at some great distance on the high seas, impossible to inspect at the time the application for insurance is filed. See Warren J. Marwedel & Stephanie A. Espinoza, Dagger, Shield, or Double-Edged Sword-: The Reciprocal Nature of the Doctrine of Uberrimae Fidei, 83 Tul. L.Rev. 1163, 1168-69 (2009).

         Accordingly, under the doctrine, " the party seeking insurance is required to disclose all circumstances known to it which materially affect the risk." Folksamerica, 413 F.3d at 311 (quoting Atl. Mut. Ins. Co. v. Balfour MacLaine Int'l Ltd. (In re Balfour MacLaine Int'l Ltd.), 85 F.3d 68, 80 (2d Cir. 1996)); see also Knight, 804 F.2d at 13 (" Since the [insured] is in the best position to know of any circumstances material to the risk, he must reveal those facts to the underwriter, rather than wait for the underwriter to inquire." ). " If [the insured] acquires material information after having applied for insurance, he is required to communicate that information to the proposed insurer" as well. Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866, 870 (2d Cir. 1985). Thus, " [t]he [insured] is bound, although no inquiry be made, to disclose every fact within his knowledge that is material to the risk." 2 Schoenbaum, supra, § 19-14, at 405-06. " The standard for disclosure is an objective one, that is, whether a reasonable person in the [insured's] position would know that the particular fact is material." Knight, 804 F.2d at 13.

          " Failure by the [insured] to disclose all available information will allow the insurer to avoid the policy," regardless of " whether such omission is intentional or results from mistake, accident, forgetfulness, or inadvertence." [13] 2 Schoenbaum, supra, § 19-14, at 406 ; see Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 510, 1 S.Ct. 582, 27 L.Ed. 337 (1883) (" The concealment, whether intentional or inadvertent, . . . avoids the policy . . . . In respect to the duty of disclosing all material facts, . . . [t]he obligation . . . is one uberrimae fidei. The duty of communication, indeed, is independent of the intention, and is violated by the fact of concealment even where there is no design to deceive." ); Puritan Ins. Co., 779 F.2d at 870-71; see also Catlin (Syndicate 2003) at Lloyd's v. San Juan Towing & Marine Servs., Inc., 778 F.3d 69, 83 (1st Cir. 2015) (" Under uberrimae fidei, when the marine insured fails to disclose to the marine insurer all circumstances known to it and unknown to the insurer which 'materially affect the insurer's risk,' the insurer may void the marine insurance policy at its option." (emphasis in original) (quoting Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 55 (1st Cir. 1995))). However, " [t]he principle of uberrimae fidei does not require the voiding of the contract unless the undisclosed facts were material and relied upon." Puritan, 779 F.2d at 871.

         B. The Pollution Policy is a ...


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