United States District Court, D. Connecticut
AMENDED ORDER CERTIFYING QUESTION RE: ALSTOM'S
MOTION FOR SUMMARY JUDGMENT (DOC. NO. 131) TO THE SUPREME
COURT OF VIRGINIA 
C. Hall United States District Judge.
case involves a breach of contract dispute between the
plaintiffs, Dominion Resources Services, Inc., Dominion
Resources, Inc., Dominion Energy, Inc., Dominion Generation
Corp., and Dominion Technical Solutions, Inc. (collectively
“Dominion Resources”), and the defendant, Alstom
Power, Inc. (“Alstom”). On December 1, 2016,
Dominion Resources filed the Amended Complaint, alleging two
counts of breach of contract against Alstom. See
Amended Complaint (“Am. Compl.”) (Doc. No. 45).
On December 15, 2016, Alstom filed its Answer, Defenses, and
Counterclaims. See Answer, Defenses, and
Counterclaims (“Answer”) (Doc. No. 48). Alstom
asserted, inter alia, the defense that
“Plaintiffs have already recovered from their insurers
the amounts claimed in this lawsuit; and Plaintiffs may not
recover from Defendant amounts already paid to Plaintiffs by
their insurers.” Id. at ¶ 67. Alstom also
advanced three counterclaims for contractual indemnity,
indemnity at law, and breach of contract. See id. at
October 27, 2017, the parties cross-moved for summary
judgment. See Motion for Summary Judgment by
Dominion Resources (“Dominion Resources'
MFSJ”) (Doc. No. 129); Motion for Summary Judgment
Dismissing Plaintiffs' Breach of Contract Claims
(“Alstom's MFSJ”) (Doc. No. 131); Motion for
Summary Judgment Dismissing Plaintiffs' Claims as Barred
by Statute of Limitations (Doc. No. 132); Motion for Judgment
on the Pleadings and Alternative Motion for Summary Judgment
(Doc. No. 134). The parties both seek summary judgment on a
number of grounds. Among them, Alstom seeks summary judgment
on both of Dominion Resources' breach of contract claims
on the ground that Dominion Resources has not suffered any
recoverable damages because they have been paid by their
insurer, Associated Electric & Gas Insurance Services,
Ltd. (“AEGIS”), for the full amount sought in
this action. See Alstom's MFSJ at 20-28. Alstom
argues that Dominion Resources should be barred from
obtaining double recovery and that the collateral source rule
does not apply to breach of contract actions. See
id. Dominion Resources does not dispute that it was
reimbursed by AEGIS, but argues that the collateral source
rule should apply to prevent the court from considering
AEGIS's reimbursement. See Memorandum in
Opposition to Alstom's Motions for Summary Judgment
(“Dominion Resources' Mem. in Opp.”) (Doc.
No. 137) at 33-36.
parties agree that Virginia law governs the contract between
them. See Alstom's Local Rule 56(a)(1) Statement
of Facts (“Alstom's L.R.56(a)(1)”) (Doc. No.
135) at ¶ 3; Dominion Resources' Local Rule 56(a)(2)
Statement of Facts (“Dominion Resources'
L.R.56(a)(2)”) (Doc. No. 138) at ¶ 3. No.
controlling precedent from the Supreme Court or the Court of
Appeals of Virginia has addressed whether the collateral
source rule applies to breach of contract actions. See,
e.g., Acuar v. Letourneau, 260 Va. 180, 188 n.7
(2000); see also supra at 11-13 (citing other
cases). Absent objection from the parties, the court
certifies the following question to the Supreme Court of
Virginia and stays resolution of this case in the interim:
Does Virginia law apply the collateral source rule to a
breach of contract action where the plaintiff has been
reimbursed by an insurer for the full amount it seeks in
damages from the defendant?
order to facilitate the work of the Supreme Court of
Virginia, and in compliance with Rule 5:40, see Va.
Sup. Ct. R. 5:40(c), the court explains below the relevant
facts and the contested issue of law.
Rules of the Supreme Court of Virginia permit “a United
States district court” to certify a question to the
Supreme Court of Virginia “if a question of Virginia
law is determinative in any proceeding pending before the
certifying court and it appears there is no controlling
precedent on point in the decisions of [the Supreme Court] or
the Court of Appeals of Virginia.” Va. Sup. Ct. R.
5:40(a). The Second Circuit has held that courts should
“not certify every case that meets this criteria, but
instead evaluate at least three factors in determining
whether certification is appropriate: (1) the absence of
authoritative state court decisions; (2) the importance of
the issue to the state; and (3) the capacity of certification
to resolve the litigation.” Casey v. Merck &
Co., Inc., 653 F.3d 95, 101 (2011) (certifying a
question to the Virginia Supreme Court under Rule 5:40(a))
(internal quotation marks and citation omitted).
Rule 5:40, a certification order should contain:
(1) the nature of the controversy in which the question
(2) the question of law to be answered;
(3) a statement of all facts relevant to the question
(4) the names of each of the parties involved;
(5) the name, Virginia State Bar number, mailing address,
telephone number (including any applicable extension),
facsimile number (if any), and e-mail address (if any) of
counsel for each of the parties involved;
(6) a brief statement explaining how the certified question
of law is determinative of the proceeding in the certifying
(7) a brief statement setting forth relevant decisions, if
any, of [the Supreme Court] and the Court of Appeals of
Virginia and the reasons why such decisions are not
Va. Sup. Ct. R. 5:40(c).
plaintiffs (and counter-defendants) are Dominion Resources
Services, Inc., Dominion Resources, Inc., Dominion Energy,
Inc. (on behalf of itself and as successor to Dominion Energy
Salem Harbor, LLC), Dominion Generation Corp., and Dominion
Technical Solutions, Inc. (collectively “Dominion
Resources”). All of the plaintiffs are corporations
incorporated in Virginia. See Am. Compl. at
¶¶ 1-5. The defendant (and counter-plaintiff) is
Alstom Power, Inc. (“Alstom”), a ...