Schwartz v. Twin City, No. 07-2794 (2d Cir. 2008)

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07-2794-cv Schwartz v. Twin City 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: June 13, 2008 Decided: August 19, 2008) Docket No. 07-2794-cv, 07-2818-cv - - - - - - - - - - - - - - - - - - - -x BERNARD L. SCHWARTZ, Plaintiff-CounterDefendant-Appellee, TWIN CITY FIRE INSURANCE COMPANY, Defendant-Cross-DefendantCounter-Claimant-Appellee, ROYAL INDEMNITY COMPANY, Defendant-Cross-Defendant, - v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Cross-ClaimantAppellant, NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Defendant-Counter-ClaimantCross-Claimant-Appellant. - - - - - - - - - - - - - - - - - - - -x 1 2 3 4 Before: JACOBS, Chief Judge, POOLER, Circuit Judge, RESTANI,* Judge. Excess insurers appeal from an amended judgment, 5 entered after a jury trial in the United States District 6 Court for the Southern District of New York (Castel, J.), 7 granting damages to their policy-holder and dismissing the 8 bad-faith claims they asserted as subrogees against the 9 primary insurer. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Affirmed. EDWARD M. SPIRO, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York, NY (Elkan Ambramowitz, Thomas M. Keane, Sarah J. North, on the brief), for Plaintiff-CounterDefendant-Appellee Bernard L. Schwartz. CATHERINE E. STETSON, Hogan & Hartson L.L.P., Washington, DC (William J. Bowman, Paul A. Werner, Hogan & Hartson LLP, Ira G. Greenberg, John F. McCarrick, Edwards Angell Palmer & Dodge LLP, on the brief), for Defendant-Cross-DefendantCounter-Claimant-Appellee Twin City Fire Insurance Company. DAVID J. MARGULES, Bouchard Margules & Friedlander, P.A., Wilmington, DE (Sean M. Brennecke, of counsel, Joshua * The Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Dratel, Law Offices of Joshua Dratel, New York, NY, on the brief), for Defendant-CrossClaimant-Appellant Liberty Mutual Insurance Company. PETER A. STROILI, D Amato & Lynch, New York, NY (Robert E. Kushner, on the brief), for Defendant-Counter-ClaimantCross-Claimant-Appellant North American Specialty Insurance Company. DENNIS JACOBS, Chief Judge: The day before he was to testify as a defendant in a 18 securities class action, Bernard L. Schwartz agreed to a $20 19 million settlement. 20 States District Court for the Southern District of New York 21 (Castel, J.) against the four companies that covered him for 22 directors and officers liability. 23 insurer, Twin City Fire Insurance Company, for bad faith 24 refusal to settle and breach of contract, and he sued three 25 excess insurers, Royal Indemnity Company, Liberty Mutual 26 Insurance Company, and North American Specialty Insurance 27 Company, for breach of contract. 28 American, pleading equitable subrogation, asserted cross- 29 claims for bad faith against Twin City. 30 settled with Schwartz in the course of this litigation. He later brought suit in the United 3 He sued the primary Liberty and North Twin City and Royal 1 Liberty and North American appeal from an amended 2 judgment, entered after a jury trial, in favor of Schwartz 3 and Twin City. 4 F. Supp. 2d 308 (S.D.N.Y. 2007). 5 whether the jury s verdict in favor of Schwartz was 6 supported by sufficient evidence; whether Schwartz s 7 entitlement to prejudgment interest (under California law) 8 runs from the date he paid the $20 million or from the date 9 the underlying layers of coverage were exhausted; and See Schwartz v. Twin City Fire Ins. Co., 492 The issues on appeal are 10 whether 11 New York law (which requires a showing of gross disregard ) 12 or by California law (which does not). 13 follow, we affirm. the cross-claims against Twin City are governed by For the reasons that 14 15 BACKGROUND 16 Schwartz was chief executive officer of Globalstar 17 Telecommunications Ltd., a now-defunct public company in the 18 satellite telephone business. 19 covered by $50 million in directors and officers liability 20 insurance. 21 Twin City; Royal, Liberty and North American, the first 22 three excess carriers, each provided $5 million in coverage. In that capacity, he was The primary layer of $10 million was written by 4 1 2 The remaining layers of coverage were not implicated. In 2001, after Globalstar revealed that its satellite 3 technology had fizzled, a securities class action was filed 4 against Schwartz, Globalstar, and Loral Space & 5 Communications, Ltd. (a Globalstar investor also under 6 Schwartz s control), alleging violations of sections 10(b) 7 and 20(a) of the Securities Exchange Act of 1934 (the 8 Globalstar Litigation ). 9 insurers of the litigation. 10 11 Globalstar timely notified its With Twin City s approval, Schwartz retained Francis Menton to defend him. After Globalstar and Loral filed for bankruptcy in 12 2002, the Globalstar Litigation proceeded against Schwartz 13 alone. 14 Over the following two years, Menton worked with Twin 15 City, Royal, Liberty and North American to negotiate a 16 settlement with the Globalstar Litigation plaintiffs. 17 Counsel to Liberty and North American (the Excess 18 Insurers ) participated in negotiations at which the 19 plaintiffs offered to settle for $15 million, but warned 20 that the demand would rise to $20 or $25 million once trial 21 began. 22 $5 million. Twin City s counter-offers never rose above Settlement was not achieved. 5 1 Trial of the Globalstar Litigation began on July 6, 2 2005. 3 monitoring all of the proceedings. 4 Counsel for the Excess Insurers were in the courtroom After two weeks of testimony, the only remaining 5 defense witnesses were Schwartz and his damages expert. 6 Facing the prospect of a jury verdict in the hundreds of 7 millions of dollars, Schwartz decided to settle the case. 8 At 10:04 p.m. on Sunday, July 17, 2005, Menton wrote to the 9 four insurers seeking their consent to settle for 10 $20 million.2 11 night or early the following morning. 12 Menton offered to discuss the settlement that On Monday, July 18, 2005, the district court approved 13 the $20 million settlement and discharged the jury. 14 course of that day and the following week, all the insurers 15 refused consent. 16 In the Twin City refused consent on the stated ground that the 17 plaintiffs evidence was too weak to merit more than the 18 $5 million average settlement for shareholder class action 19 lawsuits settled in 2004. 2 At that stage of the litigation, $3 million of Twin City s primary layer had been absorbed by defense fees and costs, leaving $7 million available for settlement. The $20 million figure therefore implicated four layers of coverage: Twin City, Royal, Liberty and North American. 6 1 Royal likewise declined to consent. 2 Liberty acknowledged receiving an email from Menton on 3 Saturday, July 16, relaying plaintiffs $20 million demand, 4 but said it was unaware of Menton s request for consent to 5 settle until Monday morning. 6 why it would be reasonable to settle at $20 million, 7 particularly in light of the positive developments at 8 trial ; in any event, its obligations had not been triggered 9 because the underlying layers of coverage had not yet been 10 11 Liberty could not understand exhausted. North American s position was that the litigation 12 should have been settled for an amount at or below 13 $15 million ; that an opportunity to do so had been 14 squandered through no fault of North American s ; that, 15 having observed the trial closely, North American had seen 16 nothing that would justify a $5 million increase in the 17 plaintiffs demand ; that it was not included in the 18 negotiations of the last 5 days, or kept apprised of these 19 negotiations in any material way ; and that in any event any 20 demand on it would appear to be premature, given that the 21 underlying layers of coverage (Twin City, Liberty and Royal) 22 had not paid out their limits. 7 1 2 3 On August 24, 2005, Schwartz wrote a personal check to the Globalstar plaintiffs for $20 million. Schwartz then filed this lawsuit, alleging two causes 4 of action: breach of contract against Twin City, Royal, 5 Liberty and North American; and a bad faith claim against 6 Twin City. 7 brought bad-faith cross-claims against Twin City. 8 Commercial Union Assurance Cos. v. Safeway Stores, Inc., 26 9 Cal. 3d 912, 918 (1980) (explaining that under equitable Liberty and North American, as subrogees, See 10 subrogation, an excess carrier stands in the shoes of the 11 insured and should be permitted to assert all claims against 12 the primary carrier which the insured himself could have 13 asserted ). 14 Before the coverage suit went to trial, Twin City and 15 Royal settled with Schwartz by paying their policy limits 16 ($10 million and $5 million, respectively). 17 On the remaining claims, the jury awarded Schwartz 18 $5 million against Liberty and $4,085,723.11 against North 19 American (the full amounts sought); and on the bad-faith 20 cross-claims against Twin City, the jury awarded Liberty 21 $2 million and awarded North American $3 million. 22 district court entered judgment on January 29, 2007. 8 The 1 After post-trial briefing, the district court denied 2 the Excess Insurers motions for judgment as a matter of law 3 (or, alternatively, a new trial), but amended the judgment 4 in two significant ways. 5 Insurers, the court awarded Schwartz prejudgment interest 6 measured from the date Schwartz paid the $20 million 7 settlement. 8 City, the court decided a choice of law issue that was 9 raised by the jury s finding (in response to a special 10 interrogatory) that Twin City had not acted in gross 11 disregard of Schwartz s interests. 12 requisite finding under New York law, but not under the law 13 of California. 14 and amended the judgment accordingly to dismiss the bad- 15 faith cross-claims. As to the claim against the Excess As to the bad-faith cross-claims against Twin Gross disregard is a The court ruled that New York law applied, 16 17 18 DISCUSSION Liberty and North American challenge the amended 19 judgment on three fronts. 20 matter of law on the breach of contract claims based on 21 Schwartz s failure to obtain their consent to settle the 22 Globalstar Litigation. First, they seek judgment as a Second, they contend that 9 1 prejudgment interest (on those claims) should run from the 2 date the underlying layers of insurance were exhausted, as 3 opposed to the date Schwartz paid the $20 million 4 settlement. 5 than New York law) applies to their cross-claims against 6 Twin City. Third, they argue that California law (rather 7 8 9 I We review de novo the Excess Insurers challenge to the 10 denial of their motions for judgment as a matter of law, 11 viewing the evidence, as the district court was required 12 to, in the light most favorable to the nonmoving party. 13 Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 14 (2d Cir. 2004). 15 Several facts and propositions relevant to Schwartz s 16 claims of breach against the Excess Insurers are not in 17 dispute. 18 applies to those claims. 19 Co., 492 F. Supp. 2d 308, 318 (S.D.N.Y. 2007). 20 is undisputed that the coverage agreements required Schwartz 21 to obtain the Excess Insurers consent before settling a 22 claim. First, it is undisputed that California law Schwartz v. Twin City Fire Ins. Second, it (The wording of the consent clauses is in the 10 1 margin.3 ) 2 obtain the Excess Insurers consent before settling the 3 Globalstar Litigation. 4 Lastly, it is undisputed that Schwartz did not On appeal, the Excess Insurers advance a simple 5 argument: Schwartz s failure to satisfy the condition 6 precedent of consent to settle absolved of them of their 7 contractual duties. 3 But the jury found that in refusing This is the Liberty consent clause: Defense and Settlement: The insureds shall not admit liability for, offer to settle any claim or incur costs of defense, where the liability, settlement and/or costs of defense are reasonably likely to involve the limit of liability of this Policy, without the Insurer s prior written consent, which consent shall not be unreasonably withheld. This is the North American consent clause: This insurance is subject to the same terms, conditions, agreements, exclusions and definitions as the Underlying Insurance, except: (1) We will have no obligation under this insurance with respect to any claim or suit that is settled without our consent; and (2) With respect to any provisions to the contrary contained in this insurance. 11 1 consent, the Excess Insurers breached their duties of good 2 faith and fair dealing--duties that are absolute and 3 unconditional under California law. 4 5 6 A There is an implied covenant of good faith and fair 7 dealing in every contract that neither party will do 8 anything which will injure the right of the other to receive 9 the benefits of the agreement. This principle is applicable 10 to policies of insurance. 11 Co., 50 Cal. 2d 654, 658 (1958) (citation omitted). 12 insurer owes to its insured an implied-in-law duty of good 13 faith and fair dealing that it will do nothing to deprive 14 the insured of the benefits of the policy. 15 Nat l Life Ins. Co., 10 Cal. App. 3d 376, 401 (4th Dist. 16 1970). 17 Comunale v. Traders & Gen. Ins. An Fletcher v. W. In Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566 (1973), 18 the California Supreme Court explained that this duty, the 19 breach of which sounds in both contract and tort, id. at 20 573, is unconditional and independent of the performance of 21 [the insured s] contractual obligations. 22 Gruenberg court concluded that the policy-holder s refusal 12 Id. at 578. The 1 to submit to an examination under oath and to produce 2 certain documents as required by the insurance policies was 3 no bar to the policy-holder s bad-faith action. 4 While an insurer and its insured can define, by the terms 5 of the contract, their respective obligations and duties 6 . . . no matter how those duties are stated, the 7 nonperformance by one party of its contractual duties cannot 8 excuse a breach of the duty of good faith and fair dealing 9 by the other party. Id. at 578. Id. at 581. Under California law, an 10 insurer s duty of good faith and fair dealing is absolute. 11 Id. 12 In the context of this appeal, the implied obligation 13 of good faith and fair dealing requires the insurer to 14 settle in an appropriate case although the express terms of 15 the policy do not impose the duty, and further, in 16 determining whether to settle the insurer must give the 17 interests of the insured at least as much consideration as 18 it gives to its own interests. 19 Cal. 2d 425, 429 (1967). 20 conduct itself as though it alone were liable for the entire 21 amount of the judgment. 22 Inter-Ins. Bureau, 15 Cal. 3d 9, 15 (1975). Crisci v. Sec. Ins. Co., 66 In other words, the insurer must Johansen v. Cal. State Auto. Ass n 13 Such factors 1 as the limits imposed by the policy, a desire to reduce the 2 amount of future settlements, or a belief that the policy 3 does not provide coverage, should not affect a decision as 4 to whether the settlement offer in question is a reasonable 5 one. 6 conflict between the interests of the insurer and those of 7 its insured: Id. at 16. This rule recognizes the potential for 8 9 10 11 12 13 14 15 16 17 18 19 20 Merritt v. Reserve Ins. Co., 34 Cal. App. 3d 858, 869-70 (2d 21 Dist. 1973). 22 [W]hen a settlement within policy limits is offered by claimant, the previously parallel interests of the assured and carrier diverge, and a conflict of interest arises, for while it is invariably to the assured s financial interest to settle within policy limits, settlement is only to the carrier s financial interest when the relationship between settlement offer and policy limits is mathematically favorable in the light of the probabilities of winning or losing the suit. In determining whether an insurer has given 23 consideration to the interests of the insured, the test is 24 whether a prudent insurer without policy limits would have 25 accepted the settlement offer. 26 A policy-holder seeking recovery for a judgment in excess 27 of the policy limits need not show actual dishonesty, 28 fraud, or concealment on the part of the insurer. 14 Crisci, 66 Cal. 2d at 429. Id. at 1 430. 2 unwarrantedly refuses an offered settlement where the most 3 reasonable manner of disposing of the claim is by accepting 4 the settlement. Rather, liability may exist when the insurer Id. 5 Whether the insurer has acted unreasonably, and hence 6 in bad faith, in rejecting a settlement offer is a question 7 of fact to be determined by the jury. 8 Mut. Auto. Ins. Co., 47 Cal. App. 3d 783, 792 (1st Dist. 9 1975); see also Allen v. Allstate Ins. Co., 656 F.2d 487, Cain v. State Farm 10 489 (9th Cir. 1981) ( An insurer s good faith is 11 essentially a matter of fact. . . . Thus, due deference must 12 be granted to the trier-of-fact[,] in this case the jury. ). 13 The question is therefore whether the jury verdict in favor 14 of Schwartz was supported by sufficient evidence. 15 conclude that it was. We 16 At trial, the jury heard testimony from the attorneys 17 who represented Schwartz, Twin City, Royal, Liberty, North 18 American and the Globalstar plaintiffs, and the jury 19 reviewed the emails, letters and notes exchanged throughout 20 the Globalstar Litigation. 21 that Liberty and North American took an active role in the 22 Globalstar Litigation: monitoring the claims, evaluating Together, that evidence showed 15 1 settlement possibilities, participating in settlement 2 negotiations, and watching the trial unfold. 3 the jury learned about the following series of events. Specifically, 4 Liberty and North American participated in three 5 mediation sessions with Schwartz, Royal, Twin City and the 6 Globalstar plaintiffs. 7 after Twin City made settlement offers well below the 8 plaintiffs $15 million demand. 9 continued and the Globalstar Litigation progressed to trial. 10 All three ended without success Meanwhile, discovery At the second mediation session, in January 2005, Twin 11 City asked the other insurers to leave the room so that it 12 could settle the case within the primary layer. 13 then offered $3 million in settlement--one fifth the 14 settlement demand of the Globalstar plaintiffs. 15 was rejected. 16 Twin City The offer The plaintiffs $15 million offer would have exhausted 17 the layers of Twin City and Royal, while Liberty would have 18 to pay a small amount, and North American would pay 19 nothing. 20 Menton warned Liberty and North American that Twin City s 21 posture in this mediation was risking exposure of their 22 layers of coverage. But after the January 2005 mediation session, Menton testified to telling Liberty and 16 1 North American: You need for Twin City to put up all of its 2 layer now; otherwise, the plaintiff will go up and your 3 layers are going to be endangered, and you need to be 4 thinking about and get on top of how you are going to 5 prevent that from happening. 6 The following month, North American wrote to Twin City, 7 asserting a bad-faith failure to settle: 8 numbers, the uncertain liability defenses and the 9 plaintiffs words and deeds that confirm they will not Given the damages 10 settle this case for less than $10 million, any reasonable 11 party would settle this case for an amount at or above the 12 remaining [Twin City] limit of liability. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Liberty wrote to Twin City on March 3, 2005, to the same effect: Settlement for an amount up to $12 million is in our estimation reasonable and achievable. Potential damages are, even in a reasonable scenario, far in excess of this amount. We have reviewed the strengths and weaknesses of the Plaintiffs claims and the Insured s defenses and, notwithstanding [Twin City s] optimism regarding the defensibility of this action, we believe dismissal at summary judgment highly unlikely. . . . [F]urther discovery, including the deposition of Bernard Schwartz, risks revelation of facts adverse to the Insured, thereby driving up the value of the case to the plaintiffs and ensuring that this matter will be tried before a jury. 17 1 Liberty reminded Twin City that at the January mediation, 2 the case appeared capable of settlement for under 3 $15 million, and warned that a lowball offer from Twin City 4 could precipitate a move upward by the plaintiffs. 5 On March 10, Liberty and North American participated in 6 a conference call with Menton and the other insurers 7 counsel. 8 an offer between $12 and $13 million; (2) move for summary 9 judgment, with the risk of settling for $20 million (or Menton presented three possible measures: (1) make 10 more) if the motion failed; or (3) divide the cost of 11 settlement among several insurers, each contributing $2 to 12 $3 million. The second option was chosen. 13 Schwartz moved for summary judgment on June 10, 2005. 14 That same day, the parties met for a settlement conference 15 with the district court in New York. 16 accept $15 million, but said the demand would rise if the 17 summary judgment motion was denied or the case went to 18 trial. 19 settlement. 20 21 22 23 Plaintiffs offered to Twin City counter-offered $5 million. There was no Soon after, Menton wrote as follows to Twin City and Royal, with a copy to Liberty and North American: In light of the impending trial, [Twin City] and Royal s unwillingness to resolve this 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Menton noted that at trial, the Globalstar plaintiffs would 22 likely seek to prove $600-$800 million in damages, and 23 warned that it would be a breach of duty to the insured to 24 subject [Schwartz] to the risk of such mammoth damages when 25 the opportunity to settle within [Twin City] and Royal s 26 limits has been pending for months. matter has been prejudicial to both Mr. Schwartz and the other excess insurers, whose layers are increasingly at risk. . . . Unless this matter is settled on June 29, it will proceed to trial immediately after the July 4 weekend. At that point, plaintiffs willingness to compromise the case for $15 million will have been withdrawn and plaintiffs current demand of $25 million or some higher number will have replaced it. . . . [A] return by the plaintiffs to their demand of $25 million combined with our approximately $2 million in legal fees above the deductible would mean that [Twin City], Royal, Liberty and North American would each have to contribute their entire policy limits to settlement, and Starr [the next layer excess insurer] would have to contribute a significant portion of its layer. 27 In a separate letter to Liberty and North American, 28 Menton warned that it may be necessary for Liberty and one 29 or more of the excess carriers to participate in the 30 ongoing effort to settle this matter. 31 32 For its part, Liberty wrote to Twin City and Royal, accusing them of acting in bad faith. 19 Liberty described the 1 likelihood of success on Schwartz s summary judgment motion 2 as slim, and noted that the possibility remains that 3 damages may be awarded in excess of your limits or indeed 4 the Globalstar program in its entirety. 5 Trial began on July 6, 2005. Counsel to Liberty and 6 North American monitored the Globalstar trial, attending 7 substantially all of the proceedings and participating in 8 ongoing discussions with Menton and the Globalstar 9 plaintiffs about settling the case. 10 On July 11, Menton alerted all four insurers to a 11 window of opportunity to settle the case while the 12 Globalstar plaintiffs felt vulnerable about pending 13 motions to exclude plaintiffs damages expert and for a 14 directed verdict. 15 watershed moment, Schwartz would not have another 16 similarly attractive opportunity to settle this matter. 17 Menton received no response. 18 Menton predicted that, after this The following day, Liberty and North American 19 participated (along with the other parties) in a settlement 20 conference with the court. 21 case would likely reach the jury, and that a plaintiff s 22 verdict could be eight or nine figures. The trial judge advised that the 20 Twin City again 1 2 offered $3 million. The plaintiffs passed. On Friday, July 15, after two weeks of testimony, two 3 defense witnesses remained: Schwartz and his damages expert. 4 At Royal s behest, Menton asked the Globalstar plaintiffs 5 whether the $15 million settlement figure was still on the 6 table. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs counsel responded the following day: The $15 million number was [what] we would have settled for prior to trial. In a good faith effort to reach a settlement, even though the trial was already underway, I expressed to you . . . that we still would accept $15 million at that time, before any ruling on the directed verdict motion. There was no interest from your side after that discussion. Since it is clear that the directed verdict motion is not going to be granted in full . . . the $15 million number is off the table. I reaffirmed this to you and certain representatives of the carriers on Thursday afternoon, stating that we were at $25 million to settle but it was not a firm $25 million. . . . We would accept $20 million to settle at this time; as the case progresses towards a verdict, that number will only increase. Menton forwarded the message to counsel for Twin City, 28 Royal and Liberty on Saturday, July 16, adding: 29 observation is that you gentlemen, by making ridiculously 30 low bids, waiting until the last possible minute, and 31 bidding against yourselves repeatedly, have completely 32 undermined your insured s position in this matter. 21 My Please 1 advise by tomorrow about what you want to do. 2 received no response. 3 Menton On Sunday, July 17, Menton forwarded the full email 4 exchange to North American and advised: 5 has now become your problem as well. 6 saying it, I told you so. 7 It looks like this If you don t mind my The same day, Menton and the Globalstar plaintiffs 8 agreed to settle the case for $20 million. 9 sought consent from Twin City, Royal, Liberty and North Menton formally 10 American at 10:04 p.m. that night. 11 discuss the reasonableness of that figure later that night 12 or between 8:45 and 9:00 a.m. on Monday, July 18 at the 13 courthouse. 14 consent. 15 Menton offered to Over the next days, all four insurers denied The jury that heard this evidence could find (and 16 evidently did) that Liberty and North American had an 17 adequate opportunity to consider and evaluate the settlement 18 opportunities; that $20 million was a reasonable sum; and 19 that Liberty and North American unreasonably withheld 20 consent. We therefore decline to disturb the jury verdict. 21 22 22 1 B 2 Notwithstanding the evidence supporting the jury s 3 verdict, Liberty and North American contend that Schwartz 4 forfeited any right to coverage as a matter of law. 5 unpersuaded. 6 We are A consent clause entitles an insurer to notice of a 7 proposed settlement and an opportunity to determine, before 8 the settlement, whether it will grant or withhold consent. 9 Travelers Indem. Co. v. Eitapence, 924 F.2d 48, 50 (2d Cir. 10 1991). 11 (and without exception) required that Schwartz obtain the 12 consent of Liberty and North American before entering into a 13 settlement. 14 settle, and gave them mere hours (over a Sunday night and 15 Monday morning) to decide whether to consent. 16 argument goes, Schwartz forfeited his right to coverage. Here, the excess insurance contracts unambiguously Schwartz did not get his insurers consent to So, the 17 In support of this argument, Liberty and North American 18 cite several cases in which California state courts enforced 19 consent clauses notwithstanding claims of excuse. 20 e.g., Gribaldo, Jacobs, Jones & Assocs. v. Agrippina 21 Versicherunges A. G., 3 Cal. 3d 434, 449 (1970) ( [I]t is 22 only when the insured has requested and been denied a 23 See, 1 defense by the insurer that the insured may ignore the 2 policy s provisions forbidding the incurring of defense 3 costs without the insurer s prior consent, and under the 4 compulsion of that refusal undertake his own defense at the 5 insurer s expense. ); Low v. Golden Eagle Ins. Co., 110 Cal. 6 App. 4th 1532, 1546-47 (1st Dist. 2003) (holding that, in 7 the rare case where the insured tenders the defense and 8 then negotiates a settlement on its own, leaving the insurer 9 in the dark, the insured s breach relieved the insurer of 10 posttender costs, too, including the settlement ); Jamestown 11 Builders, Inc. v. Gen. Star Indem. Co., 77 Cal. App. 4th 12 341, 346 (4th Dist. 1999) ( [I]nsureds cannot unilaterally 13 settle a claim before the establishment of the claim against 14 them and the insurer s refusal to defend in a lawsuit to 15 establish liability. . . . In short, the provision protects 16 against coverage by fait accompli. ). 17 Based on these cases, Liberty and North American argue 18 that, under California law, the failure to obtain consent 19 can be excused only where the insurer breaches a contractual 20 duty to defend, Gribaldo, 3 Cal. 3d at 449, or where the 21 previous payments were made involuntarily because of 22 circumstances beyond [the insured s] control (such as 24 1 inability or exigency), Jamestown, 77 Cal. App. 4th at 348. 2 Here, the Excess Insurers have no duty to defend, and though 3 Schwartz s payment was made under the pressure of an ongoing 4 jury trial, it was not involuntary within the narrow 5 meaning of California law. 6 consent clause was unexcused as a matter of contract law. 7 Ergo, Schwartz s breach of the Liberty and North American also point to Eitapence, in 8 which we affirmed a ruling that an insured lost her coverage 9 by settling a lawsuit without first obtaining her insurer s 10 11 12 13 14 15 16 17 18 19 20 21 22 consent. We wrote: The insurer, having insisted on the [consent] clause, is entitled to notice of a proposed settlement and an opportunity to determine, before the settlement, whether it will grant or withhold consent; the fact that in some circumstances its withholding of consent can be successfully challenged as lacking good faith ought not to mean that it should be deprived of the opportunity of assessing the circumstances before the settlement occurs. 924 F.2d at 50. 23 None of these cases helps the Excess Insurers. 24 Jamestown, Low and Gribaldo, the insurers had a duty to 25 defend; here, Liberty and North American had no such duty. 26 And in each of the cases cited by the Excess Insurers, the 27 insured either failed to provide notice of the claim or left 28 its insurer in the dark about a proposed settlement. 25 In And 1 there was no allegation that the insurers had acted in bad 2 faith. 3 three mediation sessions and a settlement conference; sent 4 several letters urging Twin City and Royal to settle in 5 light of the risk that the plaintiffs would demand far more 6 than $15 million at trial; and monitored the trial in the 7 courtroom. 8 that Liberty and North American were blindsided by 9 Schwartz s request for consent to the $20 million 10 Here, Liberty and North American participated in The record certainly does not require a finding settlement. 11 12 13 C North American challenges the jury charge on the ground 14 that it allowed the jury to consider the facts and 15 circumstances set out above in deciding whether Schwartz 16 complied with the condition precedent of seeking (and 17 obtaining) his insurers consent before settlement. 18 argues North American, the district court failed to instruct 19 the jury on the principle that an insurer must be given 20 notice of a proposed settlement and an opportunity to 21 determine, before the settlement, whether it will grant or 22 withhold consent. Id. at 50. 26 Thus, 1 We review jury instructions as [a] whole to determine 2 if they provide a misleading impression or inadequate 3 understanding of the law, 4 110 (2d Cir. 2002) (internal quotation marks omitted), and 5 will reverse on this basis only if the []appellants can show 6 that in viewing the charge given as a whole, they were 7 prejudiced by the error. 8 556 (2d Cir. 1994). Phillips v. Bowen, 278 F.3d 103, Anderson v. Branen, 17 F.3d 552, 9 We see no error in the jury charge given here. 10 According to North American, the jury s attention should 11 have been focused exclusively on the eleven hours (starting 12 at 10:04 p.m. on Sunday night) that Menton gave the insurers 13 to decide whether to consent to the $20 million settlement, 14 as though that was the interval in which the Excess Insurers 15 had to assess--for the first time--the risks, opportunities 16 and settlement demands at play in the Globalstar Litigation. 17 But the insurers opportunity to consider settlement 18 extended over a prolonged course of consultation, monitoring 19 and negotiation, so that the settlement was in the nature of 20 anticlimax rather than surprise. 21 participated in mediation sessions at which the parties were 22 expected to respond to settlement offers, accepting or 27 The Excess Insurers had 1 rejecting them on the spot. 2 Excess Insurers learned that the plaintiffs demands would 3 rise to $20 million or more at trial. 4 allowed to consider this, and much else, in deciding whether 5 the eleven-hour interval of time was sufficient. And at those sessions, the The jury was properly 6 7 8 9 II The district court awarded Schwartz prejudgment interest to run from the date Schwartz paid the $20 million 10 settlement. 11 to prejudgment interest vested only when Twin City and Royal 12 exhausted the underlying layers of coverage several months 13 later. 14 The Excess Insurers argue that Schwartz s right The issue is affected by choice of law. The district court was sitting in diversity, and so it 15 properly applied the choice of law rules of New York, the 16 forum in which it sits. 17 Mfg. Co., 313 U.S. 487, 496-97 (1941). 18 choice of law principles, the allowance of prejudgment 19 interest is controlled by the law of [the state] whose law 20 determined liability on the main claim. 21 Affiliated FM Ins. Co., 749 F.2d 127, 131 (2d Cir. 1984). 22 California law applied to Schwartz s claims against the See Klaxon Co. v. Stentor Elec. 28 [U]nder New York Entron, Inc. v. 1 Excess Insurers; so the district court applied the 2 California statute on prejudgment interest: 3 4 5 6 7 8 9 10 11 12 13 14 Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. Cal. Civ. Code § 3287(a). California appellate courts review de novo a trial 15 court s award of prejudgment interest under § 3287(a). 16 State Farm Fire & Cas. Co. v. D & G Autosound, Inc., 2007 WL 17 4442881, at *7 (2d Dist. Dec. 20, 2007) ( When the facts are 18 not in dispute, a trial court s determination as to whether 19 and when damages were certain or capable of being made 20 certain by calculation is reviewed de novo. ); Sukumar v. 21 Wise, 2006 WL 1134771, at *6 (4th Dist. Apr. 28, 2006) ( We 22 therefore may appropriately review on a de novo basis the 23 trial court s application of [§ 3287(a)] to the facts as 24 established by the trial court. ); Worthington Constr., Inc. 25 v. L.A. Contractors Corp., 2004 WL 2677088, at *14 (4th 26 Dist. Nov. 24, 2004) ( [W]e disagree with [defendant s] 27 assertion that the abuse of discretion standard applies in 29 See 1 cases involving an award of prejudgment interest under 2 [§ 3287(a)]. 3 cases dealing with discretionary prejudgment interest for 4 unliquidated claims under [§ 3287(b)], or when there is a 5 breach of an obligation not arising from contract, which by 6 statute is a matter for the jury s discretion. (internal 7 quotation marks and citation omitted)); KGM Harvesting Co. 8 v. Fresh Network, 36 Cal. App. 4th 376, 390-91 (6th Dist. 9 1995) ( As the facts are not in dispute, we independently This is the standard of review to be used in 10 review whether and when buyer s damages were certain or 11 capable of being made certain by calculation. 12 that day that buyer s entitlement to prejudgment interest 13 commences. (footnote omitted)); see also North Oakland Med. 14 Clinic v. Rogers, 65 Cal. App. 4th 824, 828 (1st Dist. 1998) 15 (stating that under § 3287(a) the court has no discretion, 16 but must award prejudgment interest upon request, from the 17 first day there exists both a breach and a liquidated 18 claim ). It is from 19 20 21 22 A Section 3287(a) applies where the dispute is over liability rather than the amount of damages. 30 See Canavin v. 1 Pac. Sw. Airlines, 148 Cal. App. 3d 512, 524 (4th Dist. 2 1983) (explaining that prejudgment interest is mandatory 3 where there is essentially no dispute between the parties 4 concerning the basis of computation of damages if any are 5 recoverable but where their dispute centers on the issue of 6 liability giving rise to damage (internal quotation marks 7 omitted)). 8 3287(a)] has been reduced to two tests: (1) whether the 9 debtor knows the amount owed or (2) whether the debtor would The so-called certainty requirement of [§ 10 be able to compute the damages. 11 164 Cal. App. 3d 427, 434-35 (2d Dist. 1985) (quoting 12 Chesapeake Indus., Inc. v. Togova Enter., Inc., 149 Cal. 13 App. 3d 901, 911 (2d Dist. 1983)); see also Wisper Corp. v. 14 Calif. Commerce Bank, 49 Cal. App. 4th 948, 960 (4th Dist. 15 1996) ( Thus, where the amount of damages cannot be resolved 16 except by verdict or judgment, prejudgment interest is not 17 appropriate. (emphasis added)). 18 Polster, Inc. v. Swing, The Excess Insurers concede that Schwartz is entitled 19 to prejudgment interest under § 3287(a). 20 work on this score is to determine when Schwartz s 21 prejudgment interest clock began to tick. 22 damages were certain on August 24, 2005, when he wrote a 31 Our only appellate Schwartz says his 1 check for twenty million dollars and no cents. 2 Insurers say that Schwartz s right to damages did not vest 3 until January 5, 2007, when Twin City and Royal settled the 4 coverage litigation and the underlying policy limits were 5 thus exhausted. 6 first impression under California law. 7 The Excess This factual scenario appears to be one of Prejudgment interest under § 3287(a) runs from the 8 date when the damages are of a nature to be certain or 9 capable of being made certain by calculation and when the 10 exact sum due to the plaintiff is made known to the 11 defendant. 12 Cal. App. 3d 762, 798 (1st Dist. 1977); see also Polster, 13 164 Cal. App. 3d at 434-35 (citing Levy-Zentner test). 14 differently, § 3287(a) mandates prejudgment interest from 15 the first day there exists both a breach and a liquidated 16 claim. 17 Jur. 3d Damages § 98 (2008) ( This prejudgment interest on 18 damages runs from the date when the damages are certain or 19 are capable of being calculated to a certainty. ) Levy-Zentner Co. v. S. Pac. Transp. Co., 74 Put North Oakland, 65 Cal. App. 4th at 828; 23 Cal. 20 On the day Schwartz wrote the check, there was a 21 breach: as the jury found, Liberty and North American had 22 unreasonably withheld consent to the settlement. 32 And there 1 was a liquidated claim: Liberty and North American owed 2 Schwartz their share of his covered losses (and litigation 3 costs)--$5 million and $4.085 million, respectively. 4 would seem to require interest from that date. 5 This The Excess Insurers emphasize, however, that 6 prejudgment interest under § 3287(a) does not begin to run 7 until the right to recover damages has vested, Cal. Civ. 8 Code § 3287(a), and that [l]iability under an excess policy 9 attaches only after all primary coverage has been 10 exhausted. 11 210 Cal. App. 3d 108, 112 (2d Dist. 1989). N. River Ins. Co. v. Am. Home Assurance Co., 12 The Excess Insurers rely on wording from Hartford 13 Accident & Indem. Co. v. Sequoia Ins. Co., 211 Cal. App. 3d 14 1285 (5th Dist. 1989), a case in which several policies 15 covered the loss, and in which the chief issue under the 16 other insurance clauses was which insurance was primary 17 and which was excess. 18 to settle the underlying tort litigation in that case, it 19 sued Transamerica and Sequoia. 20 court determined that Transamerica and Sequoia were excess 21 to Hartford s primary layer, and (as to Hartford s claim for 22 prejudgment interest) that the amount of damages After Hartford paid the full amount 33 The California appellate 1 recoverable by Hartford against Transamerica and Sequoia 2 was certain, or capable of being made certain by 3 calculation and was vested in Hartford on . . . the day 4 Hartford exhausted its primary policy limit ; prejudgment 5 interest began to accrue on that day. 6 Civ. Code § 3287(a)) (emphasis added). 7 cite this wording for the proposition that an excess insurer 8 in a coverage dispute is not exposed to prejudgment interest 9 until after the underlying coverage is exhausted. Id. (quoting Cal. The Excess Insurers But this 10 interpretation overreads Hartford. 11 case than ours because the settlement payment simultaneously 12 fixed the damages at sums certain and effected vesting by 13 the exhaustion of the primary layer. 14 Hartford was an easier In our case, unlike in Hartford, it becomes necessary 15 to allocate the loss caused by the time value of money in 16 the interval between settlement of the underlying claim and 17 exhaustion of underlying coverages--the interval in which 18 the policy-holder successfully litigated his claims for 19 coverage. 20 The jury s finding that the Excess Insurers breached 21 their duties of good faith and fair dealing simplifies the 22 allocation in this case. The covenant of good faith and 34 1 fair dealing is a contract term that aims to effectuate the 2 contractual intentions of the parties. 3 v. Talbot Partners, 21 Cal. 4th 28, 43 (1999). 4 compensation for its breach has almost always been limited 5 to contract rather than tort remedies, Foley v. Interactive 6 Data Corp., 47 Cal. 3d 654, 684 (1988), California law 7 recognizes one notable exception: tort remedies are 8 available for a breach of the covenant in cases involving 9 insurance policies, Cates, 21 Cal. 4th at 43; see also 10 Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 575 (1973) 11 (explaining that when [an] insurer unreasonably and in bad 12 faith withholds payment of [a] claim of its insured, it is 13 subject to liability in tort ). 14 emotional distress, see id. at 580-81, as well as punitive 15 damages, see Betts v. Allstate Ins. Co., 154 Cal. App. 3d 16 688 (4th Dist. 1984). 17 Cates Constr., Inc. Although That includes damages for The California Supreme Court has explained that tort 18 recovery in this particular context is considered 19 appropriate for a variety of policy reasons : 20 21 22 23 24 25 Unlike most other contracts for goods or services, an insurance policy is characterized by elements of adhesion, public interest and fiduciary responsibility. In general, insurance policies are not purchased for profit or advantage; rather, they are obtained 35 1 2 3 4 5 6 7 8 9 10 11 12 Cates, 21 Cal. 4th at 44 (internal citations omitted). 13 The same policy considerations justify taxing the for peace of mind and security in the event of an accident or other catastrophe. Moreover, an insured faces a unique economic dilemma when its insurer breaches the implied covenant of good faith and fair dealing. Unlike other parties in contract who typically may seek recourse in the marketplace in the event of a breach, an insured will not be able to find another insurance company willing to pay for a loss already incurred. 14 insurer with prejudgment interest for the period in which 15 the policy-holder successfully litigates a bad-faith claim 16 against it, notwithstanding an otherwise valid contract 17 defense based on unexhausted underlying limits. 18 that Schwartz is able to recover prejudgment interest as for 19 a tort when his damages became fixed and known--the day he 20 wrote a personal check for $20 million. 21 It follows We need not consider whether an excess insurer would 22 begin to accrue responsibility for prejudgment interest 23 under California law prior to the exhaustion of underlying 24 coverages if it withholds payment based on that condition 25 precedent and not upon grounds found to have been asserted 26 in bad faith. 27 California Supreme Court would hold that § 3287(a) entitles 28 Schwartz to recover prejudgment interest from the Excess It is enough in this case to predict that the 36 1 Insurers from the date his losses were certain and 2 ascertainable, notwithstanding that the underlying layers of 3 coverage had not yet been exhausted. 4 5 6 III Liberty and North American challenge the district 7 court s choice of New York State law (as opposed to 8 California law) to govern their cross-claims against Twin 9 City. At trial, the district court instructed the jury on 10 the elements of bad faith that are common to California law 11 and New York law, and then instructed the jury to decide 12 (separately) whether the Excess Insurers proved that Twin 13 City acted with gross disregard for the interests of the 14 Excess Insurers, a showing that is required for recovery 15 under New York law but not under the law of California. 16 jury awarded Liberty $2 million and North American $3 17 million, but found that Twin City did not act with gross 18 disregard. 19 in favor of Liberty and North American, but then considered 20 the choice of law issue, decided that the law of New York 21 applied to the Excess Insurers cross-claims, and filed an 22 amended judgment in favor of Twin City. The The district court initially entered judgment 37 1 We review the district court s ruling on a motion to 2 amend the judgment under Rule 59(e) for abuse of discretion. 3 Devlin v. Transp. Commc n Int l Union, 175 F.3d 121, 131-32 4 (2d Cir. 1999). 5 law determination de novo. 6 363 F.3d 137, 143 (2d Cir. 2004). We review the district court s choice of IBM v. Liberty Mut. Ins. Co., 7 8 A 9 The district court had subject matter jurisdiction 10 based on diversity; therefore, we must determine the body 11 of substantive law that applies here with reference to New 12 York s choice of law rules. 13 Co., 254 F.3d 414, 419 (2d Cir. 2001) (citing Klaxon Co. v. 14 Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)). 15 those rules, [t]he first step . . . is to determine whether 16 there is an actual conflict between the laws of the 17 jurisdictions involved. 18 219, 223 (1993). 19 Booking v. Gen. Star Mgmt. Under In re Allstate Ins. Co., 81 N.Y.2d New York law recognizes that [i]nsurers owe a duty to 20 their insureds . . . to act in good faith when deciding 21 whether to settle . . . a claim, and . . . may be held 22 liable for breach of that duty. 38 New England Ins. Co. v. 1 Healthcare Underwriters Mut. Ins. Co., 295 F.3d 232, 241 (2d 2 Cir. 2002) (internal quotation marks omitted). 3 also owed to excess insurers, and requires a primary insurer 4 to giv[e] as much consideration to the excess carrier s 5 interests as it does to its own. 6 Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000); Pavia 7 v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 453 8 (1993); St. Paul Fire & Marine Ins. Co. v. U.S. Fid. & Guar. 9 Co., 43 N.Y.2d 977, 978-79 (1987)). 10 This duty is Id. (citing Pinto v. To establish a prima facie case of bad faith, an excess 11 insurer must show that the primary insurer s conduct 12 constituted a gross disregard of the excess insurer s 13 interests. 14 York standard, the conduct must involve a deliberate or 15 reckless failure to place on equal footing the interests of 16 [the excess insurer] with its own interests when considering 17 a settlement offer. 18 demonstrating that the primary insurer engaged in behavior 19 evincing a conscious or knowing indifference to the 20 probability that the excess insurer would also be held 21 accountable for a judgment if a settlement offer within the 22 primary insurer s policy limits were not accepted. See Pavia, 82 N.Y.2d at 453. Id. Under this New Such showing is satisfied by 39 See id. 1 Under California law, by contrast, gross disregard is 2 not an element of a breach of the covenant of good faith and 3 fair dealing. 4 App. 3d 1136, 1151 (4th Dist. 1990) ( [T]here are at least 5 two separate requirements to establish breach of the implied 6 covenant: (1) benefits due under the policy must have been 7 withheld; and (2) the reason for withholding benefits must 8 have been unreasonable or without proper cause. ). 9 See, e.g., Love v. Fire Ins. Exch., 221 Cal. This actual conflict between the laws of New York and 10 California requires a choice. 11 of contacts theory to contract claims, Auten v. Auten, 308 12 N.Y. 155, 160-62 (1954), looking to a spectrum of 13 significant contacts--rather than a single possibly 14 fortuitous event, In re Allstate, 81 N.Y.2d at 226. 15 purpose of grouping contacts is to establish which State has 16 the most significant relationship to the transaction and 17 the parties. 18 Inc., 84 N.Y.2d 309, 317 (1994) (quoting Restatement 19 (Second) of Conflict of Laws § 188(1) (1971)). 20 the traditionally determinative choice of law factor of the 21 place of contracting, the New York Court of Appeals has 22 endorsed the following factors (identified in the New York applies a grouping The Zurich Ins. Co. v. Shearson Lehman Hutton, 40 Along with 1 Restatement): the places of negotiation and performance; 2 the location of the subject matter; and the domicile or 3 place of business of the contracting parties. 4 N.Y.2d at 317. 5 recognizes the precept that a court should apply the local 6 law of the state which the parties understood was to be the 7 principal location of the insured risk . . . unless with 8 respect to the particular issue, some other state has a more 9 significant relationship . . . to the transaction and the Zurich, 84 In the insurance law context, New York 10 parties. 11 (1971); see, e.g., Zurich, 84 N.Y.2d at 318 (considering 12 what the parties understood to be the location of the 13 risk ). 14 New York choice-of-law rules to disregard (or at least 15 discount) the location of the insured risk when the risk is 16 located in two or more states. 17 Cas. Co., 332 F.3d 145, 153 (2d Cir. 2003); see also 18 Restatement (Second) of Conflict of Laws § 193 cmt. b 19 (1971). 20 policies underlying conflicting laws in a contract dispute 21 are readily identifiable and reflect strong governmental 22 interests, and therefore should be considered. Restatement (Second) of Conflict of Laws § 193 However, [i]t is commonplace for courts applying Maryland Cas. Co. v. Cont l New York further recognizes that sometimes the 41 In re 1 Allstate, 81 N.Y.2d at 226. 2 properly consider State interests to determine whether to 3 apply New York law. 4 5 6 In such cases, a court may Id. at 227. With these principles in mind, we turn to the Excess Insurers bad-faith cross-claims against Twin City. Some factors suggest that the location of the insured 7 risk under Globalstar s directors and officers insurance 8 was New York, Maryland Cas., 332 F.3d at 153: 9 relevant times, Schwartz lived and worked in New York, and At all 10 all but one of Globalstar s corporate officers worked in New 11 York. 12 policy (of Twin City) was issued into California and 13 contained endorsements intended to conform to California 14 law, and most of Globalstar s 900 employees worked at the 15 company s facility in San Jose, California, making it 16 (arguably) the company s principal place of business. 17 Globalstar s directors and officers insurance cover[ed] a 18 group of risks that are scattered throughout both New York 19 and California, the location of the insured risk is not 20 determinative here. 21 Laws § 193 cmt. b (1971). 22 Other factors point to California: The primary Since Restatement (Second) of Conflict of However, the location of the subject matter of the 42 1 bad-faith cross-claims points strongly toward New York. 2 Zurich, 84 N.Y.2d at 317. 3 filed, tried and ultimately settled in New York. 4 settlement, the parties participated in a mediation session 5 and a settlement conference in New York. 6 mediation sessions occurred in Washington, DC.) 7 underlying class action was tried in New York, and Twin 8 City s alleged misconduct was the refusal in New York to 9 settle that New York litigation. 10 11 The Globalstar Litigation was Prior to (The other two The None of these events took place in California. New York policy considerations also militate in favor 12 of applying New York law. 13 standard reflects a policy of affording insurers latitude 14 in investigating and resisting unfounded claims. 15 82 N.Y.2d at 454. 16 presumption in New York against a finding of bad faith 17 liability by an insurer. 18 Ins. Co., 252 F.3d 608, 624 (2d Cir. 2001). 19 California law to the Excess Insurers cross-claims, based 20 on an insurer s conduct that took place chiefly in New York, 21 would offend New York s policy choice. 22 That state s gross disregard Pavia, As a consequence, there remains a strong Hugo Boss Fashions, Inc. v. Fed. To apply The Excess Insurers plead (in their words) that it 43 1 would be unduly confusing to apply the laws of one state to 2 bad faith claims and the laws of another state as to the 3 underlying breach of contract claims. 4 selectivity, called depecage, permits a more nuanced 5 handling of certain multistate situations and thus forwards 6 the policy of aptness. 7 v. Vintero Sales Corp., 629 F.2d 786, 794 n.8 (2d Cir. 8 1980). 9 is no reason to think that the jurors were confused by the 10 application of California law to some claims and New York 11 law to others. 12 than two pages. 13 This kind of Corporacion Venezolana de Fomento And it is not altogether uncommon.4 Moreover, there After all, the verdict form covered less According to North American s brief, the district 4 See, e.g., Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 397 n.1 (2d Cir. 2001) ( There is no conflict in applying New York law to one claim and Connecticut law to another. Under the doctrine of depecage as applied by New York courts, the rules of one legal system are applied to regulate certain issues arising from a given transaction or occurrence, while those of another system regulate other issues. (internal quotation marks omitted)); Babcock v. Jackson, 12 N.Y.2d 473, 484 (1963) ( [T]here is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. . . . [I]t is more than likely that it is the law of the place of the tort which will be controlling but the disposition of other issues must turn . . . on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented. ). 44 1 court s choice of New York law denied the excess carriers 2 the same right that [Schwartz] had under California law to 3 recover in bad faith against Twin City. 4 doctrine of equitable subrogation, the argument goes, the 5 duty owed an excess insurer is identical to that owed the 6 insured, 7 1350 (C.D. Cal. 1974), and so the Excess Insurers stand[] 8 in the shoes of Schwartz to assert his rights under 9 California law against Twin City, Commercial Union Assurance 10 11 Under the Peter v. Travelers Ins. Co., 375 F. Supp. 1347, Cos. v. Safeway Stores, Inc., 26 Cal. 3d 912, 918 (1980). But Twin City settled with Schwartz before any choice 12 of law issue was litigated or decided. 13 City litigated under California law, it may be that each 14 thought it applied, or did not choose to contest it, or 15 thought it offered one or another advantage. 16 it is far from clear that the doctrine of equitable 17 subrogation requires that an excess insurer standing in the 18 shoes of its policy-holder gets the benefit (or detriment) 19 of the litigation choices its policy-holder made or chose to 20 accept. 21 22 If Schwartz and Twin In any event, Finally, North American argues that the district court improperly invoked Federal Rule of Civil Procedure 59(e) 45 1 to reverse the jury s award in its favor. 2 the rule is set out in the margin.5 ) 3 this argument. 4 (The text of We see no merit in [D]istrict courts may alter or amend judgment to 5 correct a clear error of law or prevent manifest 6 injustice. 7 105 (2d Cir. 2004) (quoting Collision v. Int l Chem. Workers 8 Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994)). 9 Rule 59(e) covers a broad range of motions, and the only Munafo v. Metro. Transp. Auth., 381 F.3d 99, 10 real limitation on the type of the motion permitted is that 11 it must request a substantive alteration of the judgment, 12 not merely the correction of a clerical error, or relief of 13 a type wholly collateral to the judgment. 14 Wright et al., Federal Practice & Procedure § 2810.1 (2d ed. 15 2008) (footnote omitted). 16 11 Charles Alan Here, the district court substantively altered the 17 judgment to correct a clear error of law: New York law (as 18 opposed to California law) applies to the Excess Insurers 5 A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment. Fed. R. Civ. P. 59(e). 46 1 bad-faith cross-claims. 2 within its discretion. 3 4 The district court acted well CONCLUSION For the foregoing reasons, we affirm. 47

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