1 16-3223-cv LaptopPlaza, Inc. v. Starr In demnity & Liability Company

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

1 st day of September, two thousand seventeen.

Present: JON O. NEWMAN, PIERRE N. LEVAL, ROSEMARY S. POOLER, Circuit Judges

.

_____________________________________________________

LAPTOPPLAZA, INC.,

Plaintiff - Appellant,

v. 16-3223-cv

STARR INDEMNITY & LIABILITY COMPANY,

Defendant - Appellee

.

_____________________________________________________

Appearing for Appellant: Joshua L. Mallin, Tal Basis, Weg & Myers, P.C., New York, NY.

Appearing for Appellee: John A.V. Nicolett i, William M. Fennell, Cali L. Eckler, Nicoletti Hornig & Sweeney, New York, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York 1 (Buchwald, J. ). 2

3 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 4
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. 52 Plaintiff-Appellant LaptopPlaza, Inc. appeal s from an order entered by the United States 1
District Court for the Southern District of New York (Buchwald, J. ) granting summary judgment 2 to defendant Starr Indemnity & Liability Company (“Starr”). We assume the parties’ familiarity 3 with the underlying facts, pr ocedural history, and specifica tion of issues for review. 4

5 Under New York law, “in the construction of contracts generally, including insurance 6 contracts particularly, we give unambiguous terms their plain and ordinary meaning.” 2 Teichman 7 v. Cmty. Hosp. of W. Suffolk , 87 N.Y.2d 514, 520 (1996). “[T]he interpretation of such 8 provisions is a question of law for the court.” Mazzuoccolo v. Cinelli , 666 N.Y.S.2d 621, 622-23 9 (1st Dep’t 1997) (internal citations omitted). We review de novo the district court’s decision in 10 this case that the contract’s terms were unambiguous. See Halo v. Yale Health Plan, Dir. of 11 Benefits & Records Yale Univ. , 819 F.3d 42, 47 (2d Cir. 2016). 12

13 LaptopPlaza first argues that its storage trailer was covere d by language in an insurance 14 policy endorsement encompassing “goods and mercha ndise . . . while temporarily detained in 15
warehouses. ” App’x at 289. The parties focus on two dictionary definitions of the word 16 warehouse, found in Black’s Law Dictionary 1816 (10th ed. 2014), which defines a “warehouse” 17 as “[a] building used to store goods and othe r items,” and in Merriam-Webster’s Collegiate 18 Dictionary 1331 (10th ed. 1998), de fining “warehouse” as a “structure or room for the storage of 19
merchandise.” The trailer fits ne ither definition. It is not a build ing. Nor does it fit the latter 20 definition, as a trailer is desi gned for the transportation, and no t the storage, of merchandise. 21 LaptopPlaza has offered no persuasive argument th at the trailer in this case, which abutted a 22 warehouse but was not permanently attached to it, should be consid ered a “warehouse.” 23

24 LaptopPlaza also contends that the traile r should be covered under Clause 6 of the 25 endorsement, which states that, “[i]f . . . the Assured shall st ore or warehouse any goods at 26 locations (excluding the Assured’s premises) not listed in Clause 12, this insurance shall 27 automatically apply for an amount not exceeding ( see schedule ).” App’x at 289. LaptopPlaza 28 observes that Clause 12, mentioned in the quoted text, covers “[u]nnamed [l]ocations,” App’x at 29 290, which, LaptopPlaza argues, incl udes the trailer if it is not understood to be a “warehouse.” 30

31 LaptopPlaza’s argument founders because Clause 6 covers “locations ( excluding the 32 Assured’s premises ).” App’x at 289 (emphasis added). Alth ough the trailer was not part of 33 LaptopPlaza’s warehouse at 1801 NW 135th Ave nue, which is named in the policy, it is 34 undisputed that it was at LaptopPlaza’s premises. The complain t stated that the trailers were 35 “docked at the bay doors of the S ubject Premises,” App’x at 10, and noted that “the 53 foot 36 temporary storage facility”—t hat is, the trailer—“was stolen from the Subject Premises ,” App’x 37 at 13 (emphasis added). Moreover, Starr asserted in its statement of material facts below that a 38
thief “stole a trailer . . . parked at the premises of Plaintiff LaptopPlaza, Inc.’s . . . warehouse 39 facility.” App’x at 988 (emphasis added). Lapt opPlaza objected only to the use of the word 40 “trailer,” and thus did not dis pute that the goods were “at” LaptopPlaza’s “p remises.” App’x at 41

2 We need not resolve the partie s’ dispute as to whether admira lty law or New York law governs the alleged breach of warranties. The parties agree that New York law covers every aspect of this case except the question of whether a breach of th e policy’s warranties must increase the risk of loss to void the insured’s coverage under the poli cy. Because we need not reach that issue, there

is no need to settle th e choice-of-law dispute.3 988-89. Because Clause 6 excludes goods stored or warehoused “at . . . the Assured’s premises,” 1
it cannot cover the trailer. 3 2

3 In addition, Clause 12, which lists the ware houses covered under the endorsement, and 4 provides for coverage of “unnamed locations,” nevertheless limits “unnamed locations” to 5
warehouses. See App’x at 290 (“The warehouses to whic h these Assurers he reby extend approval 6 and the limits of liability at each location ar e as follows . . . Unnamed Locations.”). 7

8 Finally, LaptopPlaza contends that the langua ge in Clause 6 preventing coverage for 9 goods “at the Assured’s premises ” is merely intended to prev ent the assured from double10 counting the coverage limits for an item stored in a warehouse. LaptopPlaza argues that, absent 11 the limitation, the assured could claim its warehouse both as a “warehouse” and as an “unnamed 12 location,” and recover under both provisions. LaptopP laza contends that, in light of the Clause’s 13 purpose of preventing double recoveries for items in warehouses, it should not prevent a trailer 14 outside a warehouse from being c onsidered an “unnamed location.” 15

16 This argument also fails. The language of Cl ause 6 separately says that it provides 17 coverage only for “locations . . . not listed in Clause 12.” App’x at 289. And LaptopPlaza’s 18
warehouses are listed in Clau se 12. App’x at 290. Thus, the double-counting that LaptopPlaza 19 says the “at the Assured’s premises” language is meant to avoid is al ready prohibited: other 20 language already states that coverage for unnamed locati ons extends only to places other than 21 LaptopPlaza’s warehouses. LaptopPlaza’s readin g would thus make the language “excluding the 22 assured’s own premises” mere surplusage. Moreover, it appears that the purpose of Clause 6 is 23 not just to avoid the “double c ounting” problem, but also to pr event an assured from claiming 24 coverage under the “warehousing” endorsement fo r items that it keeps on its own premises but 25 not in warehouses. That is, of course, precisely what LaptopPlaza attempts to do in this case. 26

27
We have considered the remainder of La ptopPlaza’s arguments and find them to be 28 without merit. Accordingly, the order of the district co urt hereby is AFFIRMED. 29

30
FOR THE COURT: 31 Catherine O’Hagan Wolfe, Clerk 32

33

3 LaptopPlaza also appears to argue that, if th e trailer was not part of the warehouse at 1801 NW 135th Avenue, then it should not be considered “a t the premises.” This argument assumes that the warehouse and “the premises” are identical. But the term “premises” is broader than “warehouse.” The term “premi ses” includes a “building, along with its grounds.” Black’s Law Dictionary 1371 (10th ed. 2014) (em phasis added). Thus, it is reasona ble to view the contract as covering goods in the warehouse, but barring cove rage for a storage vessel “at the premises” but

not in the warehouse.