The Honorable John G. Koeltl of the United States District *

Court for the Southern District of New York, sitting by

designation.

10-0799-CV 

10 Ellicott Square Court Corp. v. Mountain Valley Indemnity Co.

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2010

4 (Argued: October 8, 2010 Decided: December 23, 2010

5 Amended: December 28, 2010

6 Amended: January 31, 2011)

7 Docket No. 10-0799-CV

8 -------------------------------------

9 10 ELLICOTT SQUARE COURT CORPORATION and 5182 GROUP, LLC,

10 Plaintiffs-Appellees,

11 - v -

12 MOUNTAIN VALLEY INDEMNITY COMPANY,

13 Defendant-Appellant.

14 -------------------------------------

15 Before: SACK and RAGGI, Circuit Judges, and KOELTL, District

16 Judge.*

17 Appeal by the defendant from a summary judgment entered

18 in the United States District Court for the Western District of

19 New York (William M. Skretny, Chief Judge) in favor of the

20 plaintiffs. The district court's judgment rested on three

21 grounds relevant to this appeal: first, that a contract that had

22 not been signed on behalf of the parties to it nonetheless had

23 been "executed" within the meaning of the primary insurance

24 policy in issue and New York law; second, that the defendant was
2

1 bound to provide insurance coverage to the plaintiffs under an

2 umbrella policy; and third, that in any event the defendant was

3 estopped from denying insurance coverage to the plaintiffs by

4 having issued a certificate of insurance identifying the

5 plaintiffs as additional insureds. We reverse the district

6 court's determination on the first issue, affirm on the second,

7 and certify to the New York Court of Appeals a question of New

8 York law necessary to our resolution of the third.

9 Affirmed in part, reversed in part, question certified

10 to the New York Court of Appeals in part, decision reserved in

11 part.

12 MAX GERSHWEIR, Hurwitz & Fine,

13 P.C.(Katherine A. Fijal, Esq., of

14 counsel), Buffalo, New York, for

15 Defendant-Appellant.

16 JUDITH TREGER SHELTON, Kenney

17 Shelton Liptak Nowak LLP, Buffalo,

18 New York, for Plaintiffs19 Appellees.

20 SACK, Circuit Judge:

21 The plaintiffs in this action, 5182 Group, LLC, and 10

22 Ellicott Square Court Corporation, were, respectively, the owner

23 of and construction manager for a commercial building in Buffalo,

24 New York. They contracted with a third firm, Ellicott

25 Maintenance, Inc., for the building's partial interior

26 demolition. 

27 The construction agreement between the plaintiffs and

28 Ellicott Maintenance required the latter to secure insurance to
3

1 cover the former for any legal liability arising out of the

2 demolition project. Ellicott Maintenance therefore purchased two

3 policies--one primary, the other "umbrella"--from the defendant

4 Mountain Valley Indemnity Company. The defendant, by its agent

5 LRMP, Inc., issued a certificate of insurance evidencing the

6 policies and the status of the plaintiffs as additional insureds,

7 after receipt of which Ellicott Maintenance began the demolition

8 work. 

9 The primary insurance policy required that the

10 underlying written construction agreement between the named

11 insured, Ellicott Maintenance, and the additional insureds, the

12 plaintiffs in this action, be "executed" in order for any injury

13 for which the plaintiffs sought defense and indemnification to be

14 covered by the policy. Before anyone on behalf of either

15 Ellicott Maintenance or the plaintiffs signed the construction

16 agreement, a worker on the demolition project was injured. When

17 the worker brought suit in New York State court in an attempt to

18 recover for his injuries, the plaintiffs sought defense and

19 indemnification from the defendant insurance company. The

20 defendant declined coverage, arguing that because the

21 construction agreement was neither signed on behalf of the

22 parties nor fully performed prior to the worker's injury, it had

23 not been "executed" under the primary insurance policy issued by

24 the defendant to Ellicott Maintenance, and therefore the

25 plaintiffs did not qualify as additional insureds under either of

26 the policies. The plaintiffs then brought this action in the
4

1 United States District Court for the Western District of New York

2 seeking a declaratory judgment to the contrary.

3 The district court (William M. Skretny, Chief Judge)

4 agreed with the plaintiffs, concluding that the construction

5 agreement was "executed" even though it had not been signed or

6 fully performed, and that the plaintiffs therefore were entitled

7 to coverage under both the primary and the umbrella policies. 

8 The court also decided that even if the plaintiffs were not

9 entitled to coverage under the terms of the policies, the

10 defendant was estopped from denying coverage because its agent

11 had issued a certificate of insurance to Ellicott Maintenance

12 that listed the plaintiffs as additional insureds. The defendant

13 appeals. 

14 We disagree with the district court's view that under

15 New York law, a contract has been "executed" despite the absence

16 of either a signature by or on behalf of both parties or full

17 performance. Therefore, under its terms, the primary insurance

18 policy's additional insured coverage did not become effective

19 prior to the accident in question. We conclude, however, that

20 the plaintiffs nonetheless were covered under the terms of the

21 umbrella policy because that policy did not require "execution"

22 of an underlying written agreement to take effect.

23 New York's intermediate appellate courts are divided as

24 to whether, despite the fact that an insurance policy's

25 additional-insured coverage is not in effect under its express

26 terms, a certificate of insurance issued by an agent of the
Subsequent to our decision to submit this 1

certified question to the New York Court of Appeals but

before the submission was actually made or that Court could

act upon it, the parties settled the underlying litigation. 

We therefore withdrew our certification. We construed the

parties' stipulation as abandoning the defendant's appeal

from the district court's estoppel ruling, and accordingly

dismissed the appeal of that issue with prejudice. See 10

Ellicott Square Court Corp. v. Mountain Valley Indem. Co., -

-- F.3d ----, 2011 WL 223602, 2011 U.S. App. LEXIS 1565 (2d

Cir. Jan. 26, 2011) (per curiam). Despite the parties'

settlement of the case, the other parts of this decision

stand. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,

513 U.S. 18, 26 (1994) ("Judicial precedents are

presumptively correct and valuable to the legal community as

a whole. They are not merely the property of private

litigants and should stand unless a court concludes that the

public interest would be served by vacatur." (internal

quotation marks omitted)). 

5

1 insurer nonetheless may estop the insurer from denying coverage

2 to a party identified as an additional insured on the

3 certificate, even where the certificate contains various

4 disclaimers, such as that it is "for informational purposes

5 only." We therefore certify the following question to the New

6 York Court of Appeals: 

7 In a case brought against an insurer in which

8 a plaintiff seeks a declaration that it is

9 covered under an insurance policy issued by

10 that insurer, does a certificate of insurance

11 issued by an agent of the insurer that states

12 that the policy is in force but also bears

13 language that the certificate is not evidence

14 of coverage, is for informational purposes

15 only, or other similar disclaimers, estop the

16 insurer from denying coverage under the

17 policy?1
In identifying the terms of the Primary Policy, the 2

parties refer the Court to a Renewal Declaration contained in the

joint appendix reflecting an insurance policy effective from

March 15, 2004, to March 15, 2005. The policy at issue in this

litigation, however, was effective from March 15, 2003 to

March 15, 2004, the same dates listed on the Certificate of

Insurance. Because the parties do not dispute that the Primary

Policy was issued, that it was effective from 2003 to 2004, and

that it was subject to the same terms and endorsements as are

contained in the Renewal Declaration, we rely upon the terms of

the Renewal Declaration as evidence of the contents of the

Primary Policy.

6

1 BACKGROUND

2 The defendant Mountain Valley Indemnity Company 

3 ("Mountain Valley") issued a commercial general liability

4 insurance policy, effective March 15, 2003 to March 15, 2004,

5 (the "Primary Policy") to non-party Ellicott Maintenance, Inc., a

6 general contractor in Buffalo, New York. As amended by an 2

7 additional-insured endorsement, the Primary Policy covered not

8 only Ellicott Maintenance but also any "person or organization

9 with whom [Ellicott Maintenance] agreed, because of a written

10 contract[,] . . . to provide insurance such as is afforded under

11 [the Primary Policy], but only with respect to liability arising

12 out of [Ellicott Maintenance's] operations," and only when "the

13 written contract or agreement [between Ellicott Maintenance and

14 the additional insured] ha[d] been executed . . . prior to the

15 'bodily injury.'" Mountain Valley Indemnity Co. Commercial

16 Policy No. 331-0013567, Issued to Ellicott Maintenance, Inc.,

17 Gen. Liability Extension Endorsement ¶ 11, Decl. of Katherine A.

18 Fijal in Supp. of Mountain Valley's Mot. for Summ. J. ("Fijal

19 Decl.") Ex. J., 10 Ellicott Square Court Corp. v. Mountain Valley
7

1 Indem. Co., No. 07-CV-0053 (W.D.N.Y. June 13, 2008). The Primary

2 Policy limited Mountain Valley's liability to one million dollars

3 "per occurrence" of bodily injury, and defined "occurrence" to

4 "mean[] an accident . . . ." 

5 In addition to the Primary Policy, Mountain Valley

6 issued to Ellicott Maintenance an umbrella policy (the "Umbrella

7 Policy") bearing the same effective dates as the Primary Policy. 

8 The Umbrella Policy limited Mountain Valley's liability per

9 occurrence to two million dollars "in excess of" the coverage

10 provided by the Primary Policy and stipulated that the Umbrella

11 Policy's general aggregate limit for each annual period was two

12 million dollars. Like the Primary Policy, the Umbrella Policy

13 guaranteed coverage for bodily injury resulting from an

14 occurrence, which it defined as "an accident . . . ," and

15 extended coverage to additional insureds with whom Ellicott

16 Maintenance had "agreed in writing prior to any [injury] . . . to

17 provide insurance such as is afforded" by the Umbrella Policy. 

18 Mountain Valley Indem. Co. Commercial Umbrella Policy No. X31-

19 0013568, Issued to Ellicott Maintenance, Inc. at 8, Fijal Decl.

20 Ex. K (the "Umbrella Policy"). Unlike the Primary Policy, the

21 Umbrella Policy did not provide that its coverage of additional

22 insureds was effective only if the written agreement between

23 Ellicott Maintenance and any additional insureds had been

24 "executed." 

25 On or about August 14, 2003, Ellicott Maintenance

26 contracted with plaintiffs 5182 Group, LLC, and 10 Ellicott
While the Primary and Umbrella Policies, each of which 3

limited liability to two million dollars for each annual period,

did not together provide the five million dollars in coverage

required by the construction agreement, that fact does not affect

our resolution of the issues on appeal. 

8

1 Square Court Corporation d/b/a Ellicott Development Company

2 ("EDC"), to perform interior demolition work at the Graystone

3 Building in Buffalo, New York, owned by plaintiff 5182 Group, and

4 managed by EDC. The agreement between Ellicott Maintenance and

5 the plaintiffs (the "Construction Agreement") obligated Ellicott

6 Maintenance to procure insurance coverage protecting both itself

7 and the plaintiffs against claims by employees or subcontractors

8 for, inter alia, damages resulting from bodily injury. The

9 Construction Agreement required that the insurance be "primary,

10 rather than concurrent with or secondary to [the] Owner's own

11 liability insurance," that it provide coverage of no less than

12 five million dollars, and that Ellicott Maintenance obtain, 3

13 prior to the commencement of work, "Certificates of Insurance

14 naming [the plaintiffs] as additional insureds." Agreement for

15 Construction, dated Sept. 12, 2003, at 10–11, Fijal Decl. Ex. G. 

16 No one signed the Construction Agreement on behalf of either the

17 plaintiffs or Ellicott Maintenance until September 12, 2003. 

18 Some three weeks earlier, on August 19, 2003, Mountain

19 Valley's agent, LRMP, Inc., had issued a certificate of insurance

20 (the "COI") identifying Mountain Valley as the issuer of the

21 Primary Policy and the Umbrella Policy, Ellicott Maintenance as

22 the named insured, and the plaintiffs as "additional insured with
9

1 respect to project: Graystone." Certificate of Liability

2 Insurance, dated August 19, 2003, Fijal Decl. Ex. L. The COI

3 listed the limits of liability described above--one million

4 dollars per occurrence under the Primary Policy and two million

5 dollars under the Umbrella Policy. The following language

6 appeared in the upper right-hand quadrant of the front of the

7 COI: "THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY

8 AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

9 CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED

10 BY THE POLICIES BELOW." Id. (capitalization in original). The

11 COI also provided that "THE INSURANCE AFFORDED BY THE POLICIES

12 DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND

13 CONDITIONS OF SUCH POLICIES." Id. (capitalization in original). 

14 The reverse side of the COI bore similar language under the

15 heading "DISCLAIMER": "The Certificate of Insurance . . . does

16 not constitute a contract between the issuing insurer . . . and

17 the certificate holder, nor does it affirmatively or negatively

18 amend, extend or alter the coverage afforded by the policies

19 listed thereon." Id. Ellicott Maintenance began work the day

20 after it received the COI. 

21 On September 9, 2003, three days before Ellicott

22 Maintenance owner Theodore S. DiRienzo and EDC owner Carl P.

23 Paladino signed the construction agreement on behalf of the

24 parties to it, David DelPrince, an employee of S&A Rubbish and

25 Debris Removal--a subcontractor hired by Ellicott Maintenance--

26 was injured when a roof collapsed at the Graystone site. 
10

1 The plaintiffs notified Mountain Valley's agent, LRMP,

2 of DelPrince's injury and potential claim by letter dated October

3 22, 2003, requesting that Mountain Valley defend and indemnify

4 them in any suit brought by DelPrince. Some six months later, by

5 letter dated April 13, 2004, Mountain Valley informed the

6 plaintiffs that it would not defend or indemnify them because,

7 inasmuch as the Construction Agreement had not been signed on

8 behalf of the parties before DelPrince was injured, "there was

9 not in existence on the date of loss a written contract executed

10 prior to the bodily injury," as required by the terms of the

11 Primary Policy. Letter from Susan Gabriele to 10 Ellicott Square

12 [Court] Corp., dated April 13, 2004, App. to Pls.' Local R. 56.1

13 Statement of Material Facts in Supp. of Pls.' Mot. for Summ. J.

14 Ex. 10, 10 Ellicott Square Court Corp. v. Mountain Valley Indem.

15 Co., No. 07-CV-0053 (W.D.N.Y. June 13, 2008). The letter further

16 stated that even if the plaintiffs qualified as additional

17 insureds under the Primary Policy as of the date of the accident,

18 Mountain Valley would deny coverage because the plaintiffs had

19 failed to timely notify Mountain Valley of DelPrince's injury and

20 possible claim, as required by the Primary Policy. 

21 DelPrince filed suit against EDC, 5182 Group, and

22 Ellicott Maintenance in New York State Supreme Court, Erie

23 County, on October 28, 2004, alleging negligence and violations
The parties represented at oral argument before this 4

Court that DelPrince's suit has been settled.

This case was originally assigned to Judge Arcara. 5

When, following the reference of the case to the magistrate

judge, Judge Arcara recused himself, the case was reassigned to

Chief Judge William M. Skretny.

11

1 of the New York Labor Law, and seeking to recover damages for the

2 injuries he sustained. 

4

3 The plaintiffs filed this declaratory judgment action

4 in the United States District Court for the Western District of

5 New York on January 30, 2007. They alleged that they were

6 additional insureds under the Primary Policy and therefore were

7 entitled to coverage by Mountain Valley in DelPrince's suit. The

8 plaintiffs further alleged that the COI bound Mountain Valley to

9 provide coverage despite the absence of a signed agreement

10 between EDC and Ellicott Maintenance. Finally, the plaintiffs

11 alleged that Mountain Valley should be precluded from relying on

12 the defense of untimely notice because Mountain Valley's response

13 disclaiming coverage was itself untimely. The plaintiffs later

14 amended their complaint to add a claim alleging entitlement to

15 indemnification and defense as additional insureds under the

16 terms of the Umbrella Policy. 

17 The district court (Richard J. Arcara, Judge ) referred 5

18 the case to Magistrate Judge Leslie G. Foschio. In June 2008,

19 the parties brought cross-motions for summary judgment before the

20 magistrate judge. Mountain Valley's motion principally relied on

21 the same arguments made in its April 2004 letter to the

22 plaintiffs disclaiming coverage. Mountain Valley also argued
12

1 that it was not bound by the Umbrella Policy because (1) the

2 Construction Agreement required that the insurance provided to

3 the plaintiffs be "primary," and the Umbrella Policy was

4 secondary; and (2) the Umbrella Policy was "subject to all the

5 limitations of [the Primary Policy]," including the execution

6 requirement, and that because the Construction Agreement was not

7 executed before DelPrince's injury, the plaintiffs "[we]re not

8 insureds on the underlying insurance [and we]re not insureds"

9 under the Umbrella Policy. Mem. of Law in Supp. of Mountain

10 Valley Indem. Co.'s Mot. for Summ. J. at 20–21, 10 Ellicott

11 Square Court Corp. v. Mountain Valley Indem. Co., No. 07-CV-0053

12 (W.D.N.Y. June 13, 2008); see Umbrella Policy at 7–8. In support

13 of their cross-motion, the plaintiffs contended that even though

14 the Construction Agreement had not been signed on behalf of the

15 parties at the time of the accident, it nonetheless had been

16 "executed" for purposes of the Primary Policy because of the

17 parties' partial performance and because the parties to the

18 contract understood its signing to be ministerial. The

19 plaintiffs further argued that even if the Agreement had not been

20 executed, the COI bound Mountain Valley to provide coverage under

21 the Primary Policy because "Mountain Valley's authorized

22 representative represented that such coverage was in place." 

23 Mem. of Law in Supp. of Pls.' Mot. for Summ. J. at 17, 10

24 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., No.

25 07-CV-0053 (W.D.N.Y. June 13, 2008). Finally, the plaintiffs
Subject matter jurisdiction over this action is founded 6

on diversity of citizenship. The parties do not dispute that the

plaintiffs' claims are properly resolved by applying New York

law. 

13

1 argued that the Umbrella Policy's own "blanket additional insured

2 provision" entitled them to that policy's coverage. 

3 In a Report and Recommendation (the "R&R"), 10 Ellicott

4 Square Court Corp. v. Mountain Valley Indem. Co., No. 07-CV-0053

5 (W.D.N.Y. Sept. 22, 2009), the magistrate judge recommended

6 denying Mountain Valley's motion for summary judgment and

7 granting the plaintiffs'. With regard to whether the 6

8 Construction Agreement was "executed," the magistrate judge

9 concluded that "in light of 'common speech' and the reasonable

10 expectations of a businessperson"--and because Mountain Valley,

11 as the drafter of the policy, could have used the term "signed"

12 if it had intended to require a signature--the term "executed" as

13 used in the Primary Policy should not be interpreted to require

14 the parties' signatures to trigger coverage under that policy. 

15 R&R at 12–13. On the question of whether the plaintiffs were

16 entitled to coverage based on the COI, the magistrate judge

17 recommended finding that the COI incorporated the terms of the

18 Primary and Umbrella Policies. Relying on Niagara Mohawk Power

19 Corp. v. Skibeck Pipeline Co., 271 A.D.2d 867, 705 N.Y.S.2d 459

20 (4th Dep't 2000), the magistrate judge found that Mountain

21 Valley's agent, acting within the scope of its authority, "issued

22 the certificate of insurance naming [the plaintiffs] as

23 additional insureds, upon which [the plaintiffs] were entitled to
Mountain Valley does not challenge this conclusion on 7

appeal.

14

1 rely, regardless of the absence of a signing of the construction

2 contract at that time." R&R at 15. The magistrate judge

3 therefore recommended estopping Mountain Valley from denying

4 coverage to the plaintiffs. Finally, the magistrate judge

5 rejected Mountain Valley's argument that the plaintiffs had not

6 provided timely notice of DelPrince's injury. 

7

7 Mountain Valley filed written objections to the entire

8 R&R making essentially the same arguments it had presented to the

9 magistrate judge. Upon de novo review, the district court

10 adopted the R&R in its entirety and without further written

11 analysis. 10 Ellicott Square Court Corp. v. Mountain Valley

12 Indem. Co., No. 07-CV-0053, 2010 WL 681284, 2010 U.S. Dist. LEXIS

13 14556 (W.D.N.Y. Feb. 19, 2010). 

14 Mountain Valley appeals. 

15 DISCUSSION

16 I. Standard of Review

17 We review the district court's grant of summary

18 judgment de novo, "construing the evidence in the light most

19 favorable to the non-moving party and drawing all reasonable

20 inferences in its favor." Fincher v. Depository Trust & Clearing

21 Corp., 604 F.3d 712, 720 (2d Cir. 2010). "Summary judgment is

22 appropriate where there exists no genuine issue of material fact

23 and, based on the undisputed facts, the moving party is entitled

24 to judgment as a matter of law." O & G Indus., Inc. v. Nat'l
The plaintiffs appear to argue that the term "executed" 8

is ambiguous. Whether a contract term is ambiguous is a

threshold question of law. Morgan Stanley Grp. Inc. v. New Eng.

Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000). "An ambiguity exists

where the terms of an insurance contract could suggest more than

one meaning when viewed objectively by a reasonably intelligent

person" who is aware of trade terminology and of the context of

the entire contract. Id. (internal quotation marks omitted). As

we will discuss below, we conclude that the term "executed" is

not ambiguous. 

15

1 R.R. Passenger Corp., 537 F.3d 153, 159 (2d Cir. 2008), cert.

2 denied, 129 S. Ct. 2043 (2009) (brackets and internal quotation

3 marks omitted); see also Fed. R. Civ. P. 56(a) ("The court shall

4 grant summary judgment if the movant shows that there is no

5 genuine dispute as to any material fact and the movant is

6 entitled to judgment as a matter of law. The court should state

7 on the record the reasons for granting or denying the motion.").

8 II. Execution of the Construction Agreement

9 The plaintiffs argue, and the district court concluded,

10 that although no one on behalf of them or Ellicott Maintenance

11 had signed the Construction Agreement before DelPrince was

12 injured, the contract nevertheless was "executed" for purposes of

13 the Primary Policy. We disagree.

14 We must give "unambiguous provisions of an insurance

15 contract . . . their plain and ordinary meaning." Essex Ins. Co.

16 v. Laruccia Constr., Inc., 71 A.D.3d 818, 819, 898 N.Y.S.2d 558,

17 559 (2d Dep't 2010) (internal quotation marks omitted). We

18 cannot disregard "the plain meaning of the policy's

19 language . . . in order to find an ambiguity where none exists."8
Black's Law Dictionary defines "execute" as, inter 9

alia: "To perform or complete (a contract or duty)"; and "To make

(a legal document) valid by signing; to bring (a legal document)

into its final, legally enforceable form." Black's Law

Dictionary, supra, at 649. 

16

1 Empire Fire & Marine Ins. Co. v. Eveready Ins. Co., 48 A.D.3d

2 406, 407, 851 N.Y.S.2d 647, 648 (2d Dep't 2008). 

3 "[I]t is common practice for the courts of this State

4 to refer to the dictionary to determine the plain and ordinary

5 meaning of words to a contract." Mazzola v. Cnty. of Suffolk,

6 143 A.D.2d 734, 735, 533 N.Y.S.2d 297, 297 (2d Dep't 1988)

7 (citation omitted). The New York Court of Appeals recently did

8 just that in determining the meaning of New York State statutory

9 language. Giordano v. Market Am., Inc., --- N.Y.3d ----, ----, -

10 -- N.E.2d ----, ----, --- N.Y.S.2d ----, ----, 2010 WL 4642451,

11 2010 N.Y. LEXIS 3284, at *10 (Nov. 18, 2010) (adopting a

12 dictionary definition of the word "latent" for purposes of N.Y.

13 C.P.L.R. 214-c(4)).

14 Black's Law Dictionary defines "executed" as: "1. (Of a

15 document) that has been signed <an executed will>. 2. That has

16 been done, given, or performed <executed consideration>." 

17 Black's Law Dictionary 650 (9th ed. 2009). A note to the 9

18 definition warns that "[t]he term 'executed' is a slippery

19 word. . . . A contract is frequently said to be executed when

20 the document has been signed, or has been signed, sealed, and

21 delivered. Further, by executed contract is frequently meant one

22 that has been fully performed by both parties." Id. (quoting

23 William R. Anson, Principles of the Law of Contract 26 n.*
The parties have not pointed to, nor have we ourselves 10

discovered, an opinion of the New York Court of Appeals

addressing the definition of "executed" as it relates to

contracts. Because there is no disagreement among the

Departments of the Appellate Division in this regard, however, we

will apply the decisions of those courts. "[W]e are bound to

apply the law as interpreted by New York's intermediate appellate

courts unless we find persuasive evidence that the New York Court

of Appeals, which has not ruled on this issue, would reach a

different conclusion." Blue Cross & Blue Shield of N.J., Inc. v.

Philip Morris USA Inc., 344 F.3d 211, 221 (2d Cir. 2003)

(ellipses and internal quotation marks omitted). 

The district court relied on the Supreme Court's 11

opinion in Burlington, which the Second Department overturned, in

determining applicable New York law. We of course treat the

Second Department's decision, of which the district court could

not have known when it decided the case at bar, as superseding

the Supreme Court's view on the matter.

17

1 (Arthur L. Corbin ed., 3d Am. ed. 1919)) (brackets and internal

2 quotation marks omitted, emphasis in original). 

3 New York courts employ the standard indicated by the

4 definition in Black's, requiring that a contract be either signed

5 or fully performed before it can be considered executed. For 10

6 example, in Burlington Insurance Co. v. Utica First Insurance

7 Co., 71 A.D.3d 712, 896 N.Y.S.2d 433 (2d Dep't 2010), a case 11

8 with facts remarkably similar to those of the case before us, a

9 construction manager contracted with a subcontractor to perform

10 work at a site in Manhattan. The agreement was memorialized in a

11 purchase order that required the subcontractor "to obtain

12 insurance in specified minimum amounts, and to name [the

13 construction manager] as an additional insured on the Certificate

14 of Insurance." Id. at 712, 896 N.Y.S.2d at 434. The policy's

15 additional insured endorsement provided, inter alia, that the

16 written contract or agreement between the manager and
18

1 subcontractor had to be "[c]urrently in effect or becoming

2 effective during the terms of this policy; and . . . [e]xecuted

3 prior to the 'bodily injury' [or] 'personal injury'." Id. at

4 713, 896 N.Y.S.2d at 434. 

5 Before the purchase order was signed on behalf of

6 either party, and before work at the site was completed, a man

7 was injured when he fell through a sidewalk cellar door at the

8 construction site. Id. The injured man filed a personal injury

9 action against the construction manager and the subcontractor,

10 both of whom in turn sought coverage from the defendant insurance

11 company. Id. The defendant declined coverage "on the ground

12 that [the construction manager] was not an additional insured

13 pursuant to the terms of the policy's additional insured

14 endorsement" because "the purchase order was not signed at the

15 time of the underlying plaintiff's alleged injury and, therefore,

16 had not been 'executed' as of that time," as required by the

17 endorsement. Id. The plaintiffs argued that the contract had

18 been executed by virtue of their partial performance of their

19 duties thereunder. 

20 The Appellate Division, Second Department, agreed with

21 the insurer, concluding that "the defendant demonstrated that the

22 contract was not 'executed' at the time of the alleged

23 accident . . . since it was both unsigned and had not been fully

24 performed at that time." Id. at 714, 896 N.Y.S.2d at 435. The

25 court found "no support for the plaintiffs' contention that the

26 condition in the additional insured endorsement that the contract
19

1 be 'executed' prior to the bodily injury or personal injury could

2 be satisfied by partial performance." Id. 

3 In this case, the plaintiffs assert that although the

4 Construction Agreement was not signed, the "underlying contract"

5 requiring Ellicott Maintenance to procure insurance had been

6 fully performed in that Ellicott Maintenance had "obtained

7 insurance in favor of EDC/5182 Group by purchasing policies with

8 a blanket additional insured endorsement," and "delivered proof

9 of coverage in the form of" the COI. Appellees' Br. 20. But the

10 Construction Agreement was not comprised of many individual

11 contracts, as the plaintiffs' argument implies. Rather,

12 fulfilling the insurance procurement provision constituted

13 partial performance of the Construction Agreement--satisfaction

14 of one of the duties required of Ellicott Maintenance thereunder. 

15 And as the district court correctly noted, partial performance

16 does not constitute execution. 

17 The plaintiffs also argue that Burlington "appears to

18 be premised on a legal fallacy," Appellees' Br. 14, i.e., that

19 the Second Department's acknowledgment that the word "executed"

20 can have more than one meaning cannot be reconciled with its

21 conclusion that this "does not render the contract uncertain or

22 ambiguous," Burlington, 71 A.D.3d at 713, 896 N.Y.S.2d at 435

23 (internal quotation marks omitted). But the Burlington court

24 concluded that the contract before it had not been executed

25 because it had neither been signed nor fully performed. 

26 Therefore, neither method of execution had been met. Id. at 714,
The plaintiffs make the same argument regarding the 12

Umbrella Policy, but because we conclude in Part IV below that

the Umbrella Policy was in any event in effect as to the

plaintiffs for other reasons, we need not reach the question of

estoppel with respect to that policy.

20

1 896 N.Y.S.2d at 435. One cannot conclude from the fact that a

2 contract requirement can be satisfied in more than one way that

3 the contract for that reason alone "lack[s] a definite and

4 precise meaning." SUS, Inc. v. St. Paul Travelers Grp., 75

5 A.D.3d 740, 742, 905 N.Y.S.2d 321, 324 (3d Dep't 2010). Neither

6 does it render the term ambiguous, nor create a triable issue of

7 material fact. 

8 Because New York law unambiguously requires either the

9 signing of a contract or its full performance for it to be

10 "executed" within the meaning of an insurance policy requiring

11 such prior execution, and because neither occurred here, the

12 Construction Agreement was not executed as of the date of

13 DelPrince's injury. The district court's finding that it was and

14 its conclusion that for that reason the Primary Policy was in

15 effect at the time of the accident, are therefore in error. 

16 III. Estoppel under the Certificate of Insurance

17 The plaintiffs contend that Mountain Valley is

18 nonetheless estopped from denying coverage to the plaintiffs

19 under the Primary Policy because Mountain Valley's agent issued, 12

20 and the plaintiffs relied upon, the COI. The district court

21 agreed. New York's intermediate appellate courts are divided on

22 the question. 
21

1 New York contract law instructs that, as a general

2 matter, "[a] certificate of insurance is merely evidence of a

3 contract for insurance, not conclusive proof that the contract

4 exists, and not, in and of itself, a contract to insure." Horn

5 Maint. Corp. v. Aetna Cas. & Sur. Co., 225 A.D.2d 443, 444, 639

6 N.Y.S.2d 355, 356 (1st Dep't 1996); see also Sevenson Envtl.

7 Servs., Inc. v. Sirius Am. Ins. Co., 74 A.D.3d 1751, 1753, 902

8 N.Y.S.2d 279, 280 (4th Dep't 2010); Tribeca Broadway Assocs., LLC

9 v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198, 200, 774 N.Y.S.2d

10 11, 13 (1st Dep't 2004). While a certificate "may be sufficient

11 to raise an issue of fact" on summary judgment, "it is not

12 sufficient, standing alone . . . , to prove coverage as a matter

13 of law." Id. 

14 However, the Third and Fourth Departments have held

15 that a certificate of insurance can estop an insurance provider

16 from denying coverage where the parties intended to provide

17 coverage to the party seeking it if the certificate was issued by

18 an agent within the scope of its authority, and if the party

19 seeking coverage reasonably relied on the certificate of

20 insurance by, for example, beginning construction work. See

21 Niagara Mohawk Power Corp. v. Skibeck Pipeline Co., 270 A.D.2d

22 867, 868-69, 705 N.Y.S.2d 459, 460–61 (4th Dep't 2000)

23 (concluding that insurer was bound by certificate of insurance

24 listing the plaintiff as an additional insured, even though

25 another certificate, under which the plaintiff sought coverage,

26 did not list the plaintiff); Bucon, Inc. v. Pa. Mfg. Ass'n Ins.
The plaintiffs attempt to distinguish American Ref- 13

Fuel. In that case, the alleged additional insured was named in

the certificate of insurance but was never named--and was not

intended to be named--as an additional insured under the terms of

the insurance contract. Id., 248 A.D.2d at 423-24, 671 N.Y.S.2d

at 96. However, the court's rejection of estoppel appears to

have been grounded in the plain language of the certificate

itself, which, like the certificate at issue in the instant case,

warned that it was for informational purposes only. Id. 

Mountain Valley's effort to distinguish Bucon is similarly

unpersuasive, as is its reliance on Taylor v. Kinsella, 742 F.2d

709 (2d Cir. 1984), a case in which we declined to require

coverage by virtue of a certificate because, inter alia, in order

to provide the coverage sought, the certificate would have had to

expand the scope of the policy it referenced. See id. at 711-12. 

22

1 Co., 151 A.D.2d 207, 210–11, 547 N.Y.S.2d 925, 927-28 (3d Dep't

2 1989) (estopping the defendant insurer from denying coverage to

3 the plaintiff where the plaintiff reasonably relied on a

4 certificate of insurance in commencing construction work). But

5 the Second Department has declined to conclude that an insurer

6 was estopped from denying coverage to a party that was

7 erroneously named on a certificate of insurance. See Am. Ref8 Fuel Co. of Hempstead v. Res. Recycling, Inc., 248 A.D.2d 420,

9 423-24, 671 N.Y.S.2d 93, 96 (2d Dep't 1998) (rejecting estoppel

10 arising from a certificate of insurance where the certificate

11 stated that it was "a matter of information only and confer[red]

12 no rights upon" the plaintiff, and holding that "the doctrine of

13 estoppel may not be invoked to create coverage where none exists

14 under the policy"). The First Department, too, has been 13

15 reluctant to find estoppel based on a certificate of insurance. 

16 See Nicotra Grp., LLC v. Am. Safety Indem. Co., 48 A.D.3d 253,

17 254, 850 N.Y.S.2d 455, 457 (1st Dep't 2008) ("Nor did the
23

1 certificate of insurance confer additional insured status.");

2 Rodless Props., L.P. v. Westchester Fire Ins. Co., 40 A.D.3d 253,

3 254-55, 835 N.Y.S.2d 154, 155 (1st Dep't 2007) ("We agree . . .

4 that since the certificate of insurance was issued as a matter of

5 information only . . . it is neither proof of insurance nor proof

6 of an oral contract."); Moleon v. Kreisler Borg Florman Gen.

7 Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621, 623 (1st

8 Dep't 2003) (deciding, without reference to estoppel, that

9 certificate of insurance is "insufficient to establish that [the

10 plaintiff] is an additional insured under a policy especially

11 where, as here, the policy itself makes no provision for

12 coverage"). 

13 There is reason to conclude that the primary insured--

14 here, Ellicott Maintenance--should bear the burden of ensuring

15 that all the conditions of providing "additional insured" status

16 to those with whom it contracts to provide that status have been

17 met. At oral argument, counsel for both sides acknowledged that

18 it is not customary for an insurer or for the insurer's agent to

19 see the contract ostensibly requiring a contractor to procure

20 insurance; rather, a certificate of insurance naming the

21 additional insured is issued as a matter of course upon the

22 request of the primary insured. Nor is there evidence in the

23 record of which we are aware that the plaintiffs ever saw the

24 policy issued to Ellicott Maintenance, or that a party in the

25 plaintiffs' position would typically see such a policy. The

26 additional insureds did not have a relationship with the insurer
24

1 that would have given them the right to obtain or question the

2 accuracy of a certificate of insurance. It is, after all, the

3 primary insured which has explicitly agreed to the execution of

4 the underlying contract as a condition of coverage for additional

5 insureds, which has the ability to seek to obtain that execution

6 prior to the beginning of work pursuant to the contract, and

7 which is otherwise best positioned to assure compliance with the

8 conditions of its insurance.

9 On the other hand, there is a reasonable argument to be

10 made that, disclaimers notwithstanding, an insurer has an

11 obligation not to issue false or potentially misleading

12 certificates of insurance–-or to permit an agent to issue them–-

13 if it or the agent is aware the parties may rely upon the

14 certificate despite disclaimers to the contrary. "[A]n

15 estoppel rests upon the word or deed of one [party] upon which

16 another party rightfully relies and so relying changes his

17 position to his injury." Nassau Trust Co. v. Montrose Concrete

18 Prods. Corp., 56 N.Y.2d 175, 184, 436 N.E.2d 1265, 1269, 451

19 N.Y.S.2d 663, 667 (1982) (citation and internal quotation marks

20 omitted). That formulation may well correctly describe the facts

21 here. Moreover, insurers typically have greater control over the

22 terms of insurance contracts and certificates of insurance than

23 their insureds, along with greater knowledge of the applicable

24 law; estoppel therefore may be appropriate for much the same

25 reason that ambiguities in insurance contracts are construed

26 against insurers. Cf. Thomas J. Lipton, Inc. v. Liberty Mut.
In a joint post-argument submission dated October 14, 14

2010, the parties confirmed that even though DelPrince's lawsuit

has been settled, their dispute concerning the applicability of

the Umbrella Policy is not moot because, "given the particulars

of the settlement in the underlying action, a finding in this

case that [the] plaintiffs are entitled to coverage under the

defendant's umbrella policy would result in [the] defendant

having to pay under that policy." Letter from Judith Treger

Shelton, Counsel for the Pls., to the U.S. Court of Appeals for

25

1 Ins. Co., 34 N.Y.2d 356, 361, 314 N.E.2d 37, 39, 357 N.Y.S.2d

2 705, 708 (1974). And such a distribution of responsibility may

3 be particularly appropriate in cases, such as this one, where

4 enforcement of the certificate of insurance would not expand the

5 substantive scope of the insurance contemplated by the insurer,

6 but would instead require the insurer to provide the coverage to

7 which the certificate of insurance states it has agreed. See

8 Bucon, 151 A.D.2d at 210-11, 547 N.Y.S.2d at 927-28. 

9 In any event, in light of this diversity of authority

10 among the Appellate Divisions, and of the underlying policy

11 choices involved, on what we think to be a significant issue of

12 state law, and acknowledging the absence of guidance from the

13 Court of Appeals, we respectfully certify to the Court the

14 following question:

15 In a case brought against an insurer in which

16 a plaintiff seeks a declaration that it is

17 covered under an insurance policy issued by

18 that insurer, does a certificate of insurance

19 by an agent of the insurer that states that

20 the policy is in force but also bears

21 language that the certificate is not evidence

22 of coverage, is for informational purposes

23 only, or other similar disclaimers, estop the

24 insurer from denying coverage under the

25 policy?

26 IV. Coverage Under the Umbrella Policy14
the Second Circuit, dated Oct. 14, 2010, 10 Ellicott Square Court

Corp. v. Mountain Valley Indem. Co., No. 10-0799-CV (2d Cir. Oct.

14, 2010), ECF No. 71. 

The district court's finding that the Construction 15

Agreement had been "executed" compelled its conclusion that the

plaintiffs were covered under both the Primary and the Umbrella

Policies. See 10 Ellicott Square Court Corp., 2010 WL 681284, at

*2, 2010 U.S. Dist. LEXIS 14556, at *5. Because we conclude that

the Construction Agreement was not "executed," we must consider

whether the plaintiffs qualify for defense and indemnification

under the Umbrella Policy.

26

1 The plaintiffs argue that even if they are not covered

2 as additional insureds under the Primary Policy, they are covered

3 under the Umbrella Policy. Mountain Valley responds that the 15

4 Umbrella Policy is limited by the same unfulfilled "execution"

5 requirement as the Primary Policy. A finding that the plaintiffs

6 were covered by the Umbrella Policy, Mountain Valley asserts,

7 would constitute an expansion in coverage in contravention of New

8 York law. We agree with the plaintiffs.

9 Section 3(c) of the Umbrella Policy provides: "Any

10 person or organization with whom or with which you have agreed in

11 writing prior to any loss, 'occurrence[,]' or 'offense' to

12 provide insurance such as is afforded by this policy is an

13 insured . . . ." Fijal Decl. Ex. K at 8 (§ 3(c)). Pursuant to

14 Section 3(d), "Each person or organization who is an 'insured' in

15 the 'underlying insurance' is an 'insured' under this insurance

16 subject to all the limitations of such 'underlying insurance'

17 other than the limits of the underlying insurer's liability." 

18 Id. (§ 3(d)). 
27

1 We conclude that Section 3(c) renders the plaintiffs

2 insureds under the Umbrella Policy. The policy requires no more

3 than an agreement in writing. The New York Court of Appeals

4 "ha[s] long held that a contract may be valid even if it is not

5 signed by the party to be charged, provided its subject matter

6 does not implicate a statute . . . that imposes such a

7 requirement." Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d

8 363, 368, 828 N.E.2d 593, 596 (2005). "[A]n unsigned contract

9 may be enforceable, provided there is objective evidence

10 establishing that the parties intended to be bound." Id. at 369,

11 828 N.E.2d at 597.

12 It is undisputed that the parties intended to be bound

13 by the Construction Agreement irrespective of whether and when it

14 was signed. Under New York law, it was therefore a binding

15 agreement prior to its execution. And it is indisputable that

16 under that agreement, the general contractor was to procure

17 insurance for the plaintiffs. Nor is there any issue as to the

18 Construction Agreement's requirement that Ellicott Maintenance

19 obtain aggregate insurance coverage for at least five million

20 dollars, and that the Primary Policy had a general aggregate

21 limit of two million dollars. 

22 Mountain Valley argues that the Construction Agreement

23 did not require "insurance such as is afforded" by the Umbrella

24 Policy because the Agreement required that Ellicott Maintenance's

25 insurance be in the form of a "primary policy." But the

26 Agreement required only that Ellicott Maintenance's policy be
28

1 primary in relation to the plaintiffs' own policies "rather than

2 concurrent" with them. Fijal Decl. Ex. G at 10 (§ 7(A)(3)). 

3 Mountain Valley also contends that because the

4 Construction Agreement did not refer explicitly to umbrella

5 coverage, it did not require Ellicott Maintenance to provide

6 "such insurance as is afforded" by the Umbrella Policy. 

7 Appellant's Reply. Br. at 11. We find no language in the

8 Umbrella Policy to require such specificity. 

9 Notwithstanding Section 3(c), Mountain Valley argues

10 that the plaintiffs do not qualify as additional insureds

11 because, under Section 3(d), the Umbrella Policy is "subject to

12 all the limitations" of the Primary Policy. We need not resolve

13 whether the Primary Policy's execution requirement would preclude

14 the plaintiffs from receiving coverage under Section 3(d) of the

15 Umbrella Policy, because the plaintiffs are eligible for coverage

16 pursuant to Section 3(c) irrespective of the effectiveness of the

17 Primary Policy. Sections 3(c) and 3(d) of the Umbrella Policy,

18 which define who is an insured, provide alternative grounds

19 rather than compound requirements for qualification as an

20 additional insured. We will not read "and" into the policy to

21 conclude that the plaintiffs must qualify as insureds under both

22 Section 3(c) and Section 3(d). If they come within the terms of

23 either, they are insureds. "[C]ourts may not by construction add

24 or excise terms . . . under the guise of interpreting the

25 writing." Vt. Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d

26 470, 475, 807 N.E.2d 876, 879, 775 N.Y.S.2d 765, 768 (2004)
29

1 (citation and internal quotation marks omitted). We therefore

2 conclude that Mountain Valley is bound to provide coverage to the

3 plaintiffs under Section 3(c) of the Umbrella Policy. 

4 Although our conclusion rests on a ground not

5 considered by the district court, we may "affirm a decision on

6 any grounds supported in the record, even if it is not one on

7 which the trial court relied." Thyroff v. Nationwide Mut. Ins.

8 Co., 460 F.3d 400, 405 (2d Cir. 2006). We do so here.

9 V. Certification to the New York Court of Appeals

10 The rules of this Court provide that "[i]f state law

11 permits, the court may certify a question of state law to that

12 state's highest court." 2d Cir. Local R. 27.2; see also Penguin

13 Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 41-42 (2d Cir. 2010). 

14 "Although the parties did not request certification, we are

15 empowered to seek certification nostra sponte." Kuhne v. Cohen &

16 Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009). Whether to

17 certify is discretionary, Am. Buddha, 609 F.3d at 41, and is

18 principally guided by three factors. 

19 First, "certification may be appropriate if the New

20 York Court of Appeals has not squarely addressed an issue and

21 other decisions by New York courts are insufficient to predict

22 how the Court of Appeals would resolve it." Id. at 42; see also

23 O'Mara v. Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007);

24 Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc.,

25 344 F.3d 211, 220-21 (2d Cir. 2003); N.Y. Comp. Codes R. & Regs.

26 tit. 22, § 500.27(a) (2008). As discussed above, there is a
30

1 "split of authority," Blue Cross, 344 F.3d at 221, regarding

2 whether a certificate of insurance can be enforced through

3 estoppel: "[T]wo competing lines of cases deal[] with the issue

4 here," and the New York Court of Appeals has not decided which is

5 correct. Am. Buddha, 609 F.3d at 42. In the absence of

6 direction from the state's highest court, we "cannot harmonize"

7 the divergent intermediate court decisions. Carney v.

8 Philippone, 332 F.3d 163, 172 (2d Cir. 2003). Nor can we predict

9 any better than the Departments of the Appellate Division how the

10 Court of Appeals would resolve the question.

11 Second, the question on which we certify must be of

12 "importance . . . to the state," O'Mara, 485 F.3d at 698, and

13 its resolution must "require[] value judgments and important

14 public policy choices that the New York Court of Appeals is

15 better situated than we to make," Am. Buddha, 609 F.3d at 42;

16 accord Bessemer Trust Co. v. Branin, 618 F.3d 76, 93 (2d Cir.

17 2010). We think that the New York Court of Appeals is better

18 positioned than we to weigh who should properly bear the burden

19 under New York law of confirming that coverage exists before

20 issuing a certificate of insurance that purports to evidence such

21 coverage.

22 Third, we may certify if the question is

23 "'determinative' of a claim before us." O'Mara, 485 F.3d at 698

24 (quoting N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a)); see

25 also Prats v. Port Auth. of N.Y. & N.J., 315 F.3d 146, 150–51 (2d

26 Cir. 2002) (certifying "unsettled" question of state law). Here,
31

1 whether the plaintiffs receive coverage under the Primary Policy,

2 and therefore the extent to which the plaintiffs will be

3 indemnified for their defense in DelPrince's action, rests on

4 resolution of the certified question. 

5 We therefore certify a question to the New York Court

6 of Appeals and reserve decision on this point pending that

7 Court's action.

8 CONCLUSION

9 For the foregoing reasons, we certify the following

10 question to the New York Court of Appeals: 

11 In a case brought against an insurer in which

12 a plaintiff seeks a declaration that it is

13 covered under an insurance policy issued by

14 that insurer, does a certificate of insurance

15 issued by an agent of the insurer that states

16 that the policy is in force but also bears

17 language that the certificate is not evidence

18 of coverage, is for informational purposes

19 only, or other similar disclaimers, estop the

20 insurer from denying coverage under the

21 policy?

22 As is our practice, we do not intend to limit the scope of the

23 Court of Appeals' analysis through the formulation of our

24 question, and we invite the Court of Appeals to expand upon or

25 alter this question as it should deem appropriate. See Am.

26 Buddha, 609 F.3d at 42–43; Kirschner v. KPMG LLP, 590 F.3d 186,

27 195 (2d Cir. 2009). 

28 Pursuant to New York Court of Appeals Rule 500.17 and

29 United States Court of Appeals for the Second Circuit Rule 27.2,

30 it is hereby ORDERED that the Clerk of this Court transmit to the

31 Clerk of the Court of Appeals of New York this opinion as our
32

1 certificate, together with a complete set of the briefs,

2 appendix, and record filed in this Court by the parties. We

3 direct the parties to bear equally any fees and costs that may be

4 imposed by the New York Court of Appeals in connection with this

5 certification. This panel will retain jurisdiction over the

6 appeal after disposition of this certification by the New York

7 Court of Appeals.

8 We affirm the district court's grant of summary

9 judgment to the plaintiffs with respect to coverage under the

10 Umbrella Policy. We reserve decision as to the district court's

11 grant of summary judgment to the plaintiffs with respect to

12 coverage under the Primary Policy pending the New York Court of

13 Appeals' decision as to whether to answer the question we

14 certify, and if it decides to do so, until its judgment in the

15 matter is final.