please good morning your honor jonah nobler from patterson belknap weapon tyler on behalf of appellate arrow electronics the district court denied arrow the benefit of twenty three years of insurance coverage by incorrectly applying california rather than alabama law to interpret the term damages in these insurance contracts california interprets damages narrowly to include only amounts that a court orders a litigant to pay at the end of a lawsuit whereas alabama for strong public policy reasons interprets damages to include amounts paid pursuant to a settlement with environmental regulators as happened and i take it there's no dispute between the parties in this case that if alabama law applies you would i don't california six requires a court to interpret a context terms according to the law of the place where the breached obligation was intended to be performed as long as that place can be gleaned from the text of the contract the nature of the contract and the surrounding circumstances only when none of those things allow the gleaning of the place of performance should the place of making be applied so does this contract have multiple places of performance it the breach being alleged here i understand relates to the huntsville facility but let's assume that some other facility where yes you are involved would it have the contract would have multiple places of performing yes you wanted to be clear there are i believe thirty odd contracts at issue in this case each one is slightly different but all of them have multiple places of performance the earlier contracts from the one thousand nine hundred and sixty s specify i believe two facilities in california and one in alabama the huntsville site later on as while the predecessor and interest got larger there were more facilities in more states but each of those was an intended place of performance of this contract if you tell me specifically which portions of the con contract contracts and which other  circumstances in the record in this case you think demonstrate that the parties intended alabama to be the place performance yes your honor well just by way of background so frontier oil is the leading case in this in this area and it holds that the place of performance of an insurance contract at least where the facility is expressed named in the policy is the place of the underlying risk but is there any indication in front here oil that are that involved a policy only nine of those oil wells i believe maybe six were in album in california and the court in front of the court of appeals did not say well like the district court here there are many places a performance so there are none so we'll go at the place of making and that's that's why i asked the question is is there's a couple district courts in the central district but my sense is they're all following each other that seem to take the view that there are many places of performance it must be it must of california the general principle i would say is in the restatements of choice of law which says quite clearly if you apply the law of the place of the risk even in a multiple risk contract there's an express section on multiple risk contracts but as far as the district court decisions that you're talking about those decisions all involve scenarios unlike frontier oil and unlike this case where the policyholder and the insurer just generically agreed to nationwide coverage without naming specific places or said it was and that was the question i was about to ask you said thank you for the segue into that what if you had a policy like that but if the policy just said you're cover all our facilities we're not specifying in the policy where they are what would we do that well that's a much more difficult question that's why i'm asking so i would say going by the california court of appeal decision in a state of grace which we cite in our briefs it's an older decision i believe it's from the one thousand nine hundred and sixty s but that involved a contract of adoption that specified no place of performance at all and the court said well but it's a contract of adoption from the nature of the contract we know it was intended to be performed wherever the parents took the child but now you could argue that's an overly broad view as actually that's not a multiple places but it but if at the time of contracting however it was understood that it would be performed wherever the child would be taken in the future it could have been multiple places now i think we don't need to get that far that far and say that that is the intended place of performance and leave for another day the situation in amazon in star craft and all of those unpublished district court orders where literally there's a product liability insurance policy and literally a claim could arise anywhere a product happens to travel in the stream of complex ever record question record pace question for you the excess policies don't express lee refer to the huntsville facility that the twenty primary policies either directly or indirectly refer to the huntsville facility what's your argument with respect to the access policy so let me read to you from eight hundred and seventy six this is from one of the access policies provisions as are contained in the controlling insurance the french are also as you look at the text but you also look at the surrounding circumstances so between the text and the fact that these are meant to add to the coverage under the primary policies that do express the name alabama we think that  and you agree that the excess policies do not mention or not by name no alabama not not no but just to be clear under no circumstances can that support the district court's holding that none of these contracts specify place of performance if you can just a schedule of locations quote unquote naming all of the locations that are intended to be insured by this policy that is found at thirty eight and the huntsville facility is st among that list by name it appears st in the list then there are a number of other schedules there's a an alibi there's a schedule that calculates the premiums that arrow's predecessor is supposed to pay separately for each state where coverage  is intended alabama is one dollar of the states the premium to be paid for coverage and alabama is calculated separately and specified then there are a couple indorsements one for engineers architects and surveyors for alabama and an amendment defining the term executive officer for alabama louisiana and most importantly there is a page where the policy is counter signed it's kind of signed separately for each state in which a facility exists and there is a page saying the policy identified below dot dot dot is counter signed with respect to all portions of the risk located in the state in which the resident agent resides signed r j bowden resident agent of liberty mutual insurance company and forty one i want to make sure i understand the record correctly every district judge's order because the judge didn't think the primary policies covered the risk oh did we didn't premiums for that facility and even list twenty five dollars different vehicles that are kharaj at the huntsville facility by make and model and separately calculates the premium for each vehicle garage downscale so between all that and the fact that this was a rocket testing facility for nasa where solvents were being used i think it's hard to argue that the insurers did not understand at the time of contracting they could be called upon to indemnify a claim that a rose in alabama i think that was just obvious to all who were part of this the morning resume springer i represent liberty mutual insurance company and i'm presenting argument today and we have a boat the pallies liberty mutual and travelers i'd like to start by pointing out that in all of the briefing in this case has not cited a single case that has taken the reasoning in the holding front here oil and applied it to that policy an insurance policy that provides nationwide coverage so you position is that if there is more than one location in an insurance policy that's covered that that the place of performance is where my position would be what we do in this situation in any sconce tract interpretation situation as we apply the statute that's what we get when it's actually says the place or performance and so i mean asking the question where if if the more than one if more than one party places cover let's assume there's a place in specific places named in all fifty states and one of those places has an incident which in which coverage is called upon where is the place of quorum it's what you need to do in that situation in any situation is you have to  you have to gleen you have to look through the contract documents and discern whether there is an intended place of performance or are you saying there's can only be one place of performance in every contract not necessarily but if you want to look at what that if you want to compare factually for example our case to french or oil and look at what they found compelling in the language of the policy there versus what we have in our policy here where what is the place of performance in your policy the place of performance in our policy is where it is made because you cannot when you review the contracts as a whole see here's my find it a place you put your money if you're into katie you can put the place a performance of this policy will be california you can say this me any hint that california is the place of performance other than the fact that it's where it was made well well i think the point is that there is no place of before you cannot review these contract documents and come away with a feeling that the parties at the time of contracting indicated a place of performance because you agree that the that the policy itself doesn't give us much hint about the place or performance other than the naming of these facilities right if you if you review these policies if you do what french or last and you you look through all the policy documents here's what you find st of all it's a court already noted you find that fourteen of the thirty four policies the access policies don't even say yeah but you know here's the problem with those access policy say we're going to cover any risk that's covered by the the the primary policies in excess of the policy limits or so it seems to me rather clear that they're not derivative of the of of the primary policies excess policies and saying that if you're taking if you're reviewing the contract documents as a whole i'm not saying the excess policies are you know the apply well if the basis for the reasoning that the primary policies have to be governed by alabama law as opposed to california law if the reason for that is because based upon the information in the policies there's enough references to alabama to infer that the parties back at the time of contracting indicated that the place of performance is alabama if that's the basis for the ruling you can make that same ruling on the access  i just want to make sure this is really your position let's assume the policies the underlying policies indicate a place of performance in alabama i know that's not your position that's assume it is and then your client issues an access policy and says i'll cover excess liability as long as it's over above the primary policies and you're saying that in that circumstance i wouldn't cover it because the excess policy itself didn't mention alabama i'm saying that well  saying you are saying that i guess i'm saying that and i think that's the problem it highlights a problem of trying to apply a choice of law on the vagaries on these policies that provide nationwide coverage and you're trying to determine choice of law on the vagaries of where the underlying suit was focused but this isn't a policy that provides at least the model one that we're talking about doesn't provide nationwide coverage it provides coverage over specified per se cover buildings it's not like a fire policy or it's covering the building it's covering the insurance liability which could arise yes at these facilities but the liability could arise you know something could happen at a facility they're testing a that wasn't in the policy and didn't notify the ensure that it acquired that facility would it be covered by the policy bought a new one a new rocket plant it may just never told the insurer about it something happened there would it be covered by the policy i can't say for sure seems to be really interest policy that probably would certainly be debate as to if performances where they are the problem we run into it if you take it to this level which is what the various district courts have looked at this have rejected this approach of just saying the test should be the intended place of performance not where looking at the policy we could all say could this policy be performed in these nine hundred dollars states that are mentioned in the policy yes we don't deny it could be performed there we don't deny that maybe at the time of contracting they might realise we could have to how to figure out where the place and want to be upright practice questions how far you want to take the statute how far do you want to go with this place of performance where you have insurance policies where where the claim arose can vary from case to case and then you have what the parties mean the meaning of their words decided by the state were some underlying tort we may have a california case that's the frontier oil that sort of tells us this and so it seems like it might persuasive tell me why it should control here the one reason it shouldn't control is we you have to look at what the language was in the policy that the court found compelling in front or oral or says what we have here and if you look at it at that policy it wasn't just geographic references it wasn't just location in california it was claim specific if you look at those indorsements they were incredibly specific they talked about claims arising out of this project at beverly hills oil and gas operations and it named as additional insurance public entities government entities based in beverly hills and los angeles these were tying in and in a tight little bow the claim and the location was very specific indorsements we don't have anything like that here we have acknowledgement that there is a facility in alabama we have some other references in the policies to alabama we also have references to i would say i think it's nineteen states a reference in these policies and thirty locations in these thirty locations in the one thousand nine hundred states if you're going to go down this road were ever the claim arose is where that policy was performed you're going to have complete inconsistency in what the words meant and where the with the parties and that the meeting of the minds in every single one of these policies is where they were issued represent insurers they can have absolute certainty about what law applies in contracts get so can insurers i mean anyone i know they will they really can't tell you you know you didn't come to them with a policy and say let's negotiate about the that the law if it applies right i'll give you one minute missing your honour's i agree you have to follow frontier oil and this is from tear oil that case involved policy language exactly the same as this case that case had it boilerplate coverage territory clause in the standard form part of the policy that mention the whole united states but it went on to list by name two hundred and thirty six dollars covered facilities across thirteen states and the court of appeals did not say that's too many policies we're just going to look to where it's made texas it's what the trial court did it got reversed they said that the forms attached to the policies they looked at the language the forms and they said that it demonstrated that the parties intended it to provide coverage for the operations in beverly hills and because of that and only because of that it held that quote california was the intended place of performance for the purpose of section one thousand six hundred and forty six dollars with respect to those claims that is in this case we have fewer facilities than there were in front here oil we have just as much clarity in the policy language we would ask that the court reverse thank you very much and thank you both for your arguments here today the case of erroll electronics versus