[ PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 96-9270

________________________ D. C. Docket Nos. CV194-126 & CV195-39 BOARDMAN PETROLEUM, INC., d.b.a. Red & Jack Oil Company, Plaintiff-Appellant,

versus FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellee,

----------------- ------------------------------ -------------------------------------------------------- FEDERATED MUTUAL INSURANCE COMPANY, a Minnesota Corporation, Plaintiff-Appellee, versus BOARDMAN PETROLEUM, INC., a Georgia corporation d.b.a Red & Jack Oil Company, Defendant-Cross-Defendant- Appellant, FIREMAN’S FUND INSURANCE COMPANY, a California corporation, d.b.a. American Automobile Insurance Company, Defendant-Cross-Claimant.2 ________________________ Appeal from the United States District Court for the Southern District of Georgia

_________________________ (February 19, 1998) Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges. COX, Circuit Judge: Boardman Petroleum, Inc ., d/b/a/ Red & Jack O il Company (“Boardman”), appeals the district court’s summary judgmen t in favor of Federa ted Mutual Insurance Company (“Federated”) on the choice-of-law applicable to these consolidated cases. We vacate and remand. I. BACKGROUND Boardman owns and operates a chain of retail gasoline stations and convenience stores located throughout the Southeast. Federated is a policyholder-owned insurer with its home office in Minnesota. At the time these cases arose, Federated insured Boardman under a number of policies, none of which contains a choice-of-law provision. Over the years, Boardman has presented Federated with several environmentalrelated insurance claims arising from its owne rship and operation of gas stations. The claims at issue in this litigation concern two gas stations located in South Carolina.3 Boardman notified Federated of contamination at these sites and asked Federated to undertake all remedial efforts required by law. Federated investigated the claims and determined that no coverage existed unde r its policy provisions. Federated sent Boardman a letter dated July21, 1994, explaining its no-c overage determination. On July 22, 1994, Federated filed an action for a declaratory judgment in a federal court in South Carolina. In August 1994, Boardmansued separately for breach of contract and declaratory relief in a Ge orgia federal court. The S outh Carolina court transferred Federated’s case to the Georgia court unde r 28 U.S.C. § 1404(a) and the Georgia court subsequently consolidated the cases. Pursuant to a global settlement agreem ent, Federated and Boardman resolved all issues in these cases but one: which st ate’s law should apply to the consolidated cases? The parties filed cross-motions for summary judgment on the choice-of-law issue. The district court granted Federate d’s motion, denied Boardman’s, and applied South Carolina law to the conso lidated cases. The parties ha d stipulated that if South Carolina law applies, no coverage exists fo r Boardman’s claims. The district court entered final judgment in each of the consolidated cases to that effect. II. DISCUSSION The issue on appeal is whether the district court erred in dete rmining that South Carolina law should apply to these consolidated cases. We review de novo the district1 See, e.g ., Tinney v. Shores, 77 F.3d 378, 380 (11 thCir. 1996). 2 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). 3 See 28 U.S.C. § 1404(a); Ferens v. John Deere Co., 494 U.S. 516, 518-19, S.Ct. 1274, 1277 (1990); Roofing & Sheet Metal Serv., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 991 (11 thCir. 1982). 4 General Tel. Co. v. Trimm, 252 Ga. 95, 311 S.E.2d 460, 461 (1984) (citing Cox v. Adams, 2 Ga. 158 (1847)). 4 court’s decision to grant Federated’s motion for summary judgment and to deny Boardman’s motion for summary judgment. 1 Federal courts sitting in diversity appl y the forum state’s choice-of-law rules. 2 It is also true, however, that when a case is transferred from one fo rum to another, the transferor court’s choice-of-law rules appl y to the transferred case even after the transfer occurs. 3 Further, consolidation of cases under Fed. R. Civ. P. 42 does not strip the cases of their individual identities. Georgia does not have a statutory choice- of-law rule, but in contract cases, it follows the traditional doctrine of lex loci contractus : contracts are “governed as to their nature, validity and inte rpretation by the law of the place where they were made” unless the contract is to be performed in a state other than that in which it was made. 4 South Carolina’s applicable choice-of-law statute provides that “[a]ll contracts of insurance on property, lives, or interests in th is State are consideredto be made in the5 S.C. Code Ann. § 38-61-10. 6 See Pink v. A.A.A. Highway Express, Inc., 191 Ga. 502, 513, 13 S.E.2d 337, aff’d , 314 U.S. 201 (1941).
7 See General Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 350, 309 S.E.2d 152 (1983); Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 926 F. Supp. 1566, 1576 (1995). 5 State and all contracts of insurance the app lication for which are taken within the State are . . . subject to the laws of this State.” 5 Under Georgia law, an insurance contract is “made” where it is delivered. 6 Georgia courts have held that when insu rance contracts made in Georgia lack a choice-of-law provision, the parties are pres umed to have intended their contract to be governed by Georgia law. 7 The insurance contracts at issue here were delivered at Boardman’s home office in Georgia, and none of the contracts contains a choice-oflaw provision. Thus, under Georgia law, the parties are presumed to have intended their contract to be governed by Georgia law. The plain language of the South Carolina statute mandates that South Caro lina law applies because the property at issue is in South Carolina. Thus, the choice-of-law ru le governing Boardman’s breach of contract and declaratory judgment acti on mandates the application of Georgia law, while the choice-of-law rule governing Fe derated’s declaratory judgment action calls for the application of South Carolina law.6 This court has never addressed the issue of how to determine which state’s law applies in consolidated cases such as these, when the choice-of-law provisions governing each of the separate lawsuits require the application of differing state substantive laws. The district court perform ed a “balancing of interests” analysis, weighing the interests of each state in havi ng its law apply and c hoosing the law of the state with the greater interests. We hold th at the “balancing of interests” analysis is the appropriate way to determ ine which state’s law applies in consolidated cases such as these where of necessity only one state’ s law may be applied. Therefore, if, in consolidated cases such as these, when the choice-o f-law provisions governing each of the separate lawsuits requi re the application of differi ng state substantive laws, the court should balance the interests of each st ate in having its laws apply and apply the law of the state with the greater interests. The district court determined that th e interests of South Carolina in having its laws apply outweighed those of Georgia, and therefore determined that South Carolina law should apply to the consolidated cases. The district court noted that the language of the South Carolina statute indicates a strong South Carolina policy in favor of subjecting insurance contracts on property lo cated in South Carolina to South Carolina law. The district court reasoned that because the only property at issue in the litigation lies in South Carolina, the strong policy interest expr essed in the South8 (R.2-61 at 8.) 9 See , e.g. , Atlantic Wood Industries, Inc. v. Lumbermen’s Underwriting Alliance, 196 Ga. App. 503, 396 S.E.2d 541 (1990) (holding that Ge orgia law would apply to general liability insurance policy interpretation issues because policies were delivered in Georgia even though contaminated property owned by the insured for which coverage was sought was located in Virginia); Claussen v. Aetna Cas. & Sur. Co., 754 F.Supp. 1576, 1579 (1990) (holding that Georgia substantive law applied to insurance policy interpretation issues for policy delivered in Georgia even though insured’s contaminated property was located in Florida). 10 See, e.g. Federal Ins. Co. v. Nat’l Distrib. Co., 203 Ga. App. 763, 767, 417 S.E.2d 671, 675 (1990). 7 Carolina statute is implicated ; therefore, South Carolina law should “define the extent of an interest in land within her boundaries.” 8 We disagree with the district court’s conclusion that South Carolina’s interests in having its laws apply outweigh Georgia’s interests in applying its laws to the consolidated cases. Although Georgia does not have an applicable choice-of-law statute, Georgia case law has continually expressed Georgia’s policy concerns in protecting the interest of its insured residents, even when the property damage for wh ich coverage is sought occurred in another state. 9 Further, some Georgia courts have suggested that performance under a general liability po licy is the payment of claims; 10 under this theory, the contracts at issu e in the instant case contempl ated performance in Georgia, as the payments would be made to Boardman’s home office in Georgia. Thus, the exception under the lex loci contractus doctrine for contracts performed in other states is inapplicable.11 See O.C.G.A. §§ 33-3-21, 33-3-21.1. 12 See S.C. Code Ann. § 38-61-20(A). 13 South Carolina courts have consistently applied the “manifestation trigger of coverage” position to insurance policies, under which coverage is triggered only if the property damage both takes place and is discovered within the policy period. See Safeco Ins. Co. v. Federated Mut. Ins. Co., 915 F.2d 1565 (4 thCir. 1990). Courts applying Georgia, Florida, and Alabama law, however, have rejected the “manifestation trigger of coverage” approach in favor of an approach under which coverage is triggered by property damage alone taking place during the policy period. See Continental Cas. Co. v. Synalloy Corp., 667 F.Supp. 1563 (S.D.Ga. 1986) (applying Georgia law); Trizec Properties, Inc. v. Biltmore Const. Co. 767 F.2d 810 (11 thCir. 1985) (applying Florida law); Commercial Inion Ins. Co. v. Sepco Corp., 765 F.2d 1543 (11 th Cir. 1985) (applying Alabama law). 8 In addition to the fact that the contr acts were made in Georgia and involved a Georgia resident insured, the policies i ssued by Federated to Boardman has to be submitted for review and a pproval by the Georgia Insurance Commissioner’s office. 11 Federated, by contrast, was under no obligation to submit th e policies for review and approval by the South Carolina Insurance Co mmissioner, as the policies were neither issued nor sold in the state of South Carolina. 12 Moreover, application of South Carolina law to the policies at issue here w ould lead to inconsistent interpretations of the same policy language. 13 No evidence of South Carolina’s interests tips the balance. First, the primary policy concerns motivating the enactment of the South Carolina statute are not implicated by the facts. The South Car olina Supreme Court has emphasized that South Carolina’s statutory choice-of-law provision applicable to contracts of insurance on property, lives, and interests located within the state was intended to14 Johnston v. Commercial Travelers Mut. Acc. Ass’n of America, 131 S.E.2d 91, 94 (1963). 15 See id

. 16 Id. at 95 (citations omitted). 17 (R.3-71-24.) 9 further South Carolina’s interest in protecting the rights of its citizens. 14 The court went on to say that statutes such as these provide policyholders with a means of enforcing their rights against mail-order in surance companies who maintain an office and own property only in the state where they are incorporated. 15 The court noted that the trend in cases dealing with choice-of-l aw determination in the insurance coverage context is for a “forum to apply its own law to adhesion contracts of insurance entered into by its residents.” 16 Thus, it appears that the prim ary policy consideration behind the enactment of § 38-61-10 is the protecti on of the rights of South Carolina citizen insureds. Here the insured is a Georgia co rporation, the policies were delivered to its home office in Georgia, and performance w ill take place in Georgia. Second, the property is located in South Carolina, but Boardman, not Federated, bears the responsibility of supervising th e remediation of these sites. 17 Thus, the location of the property alone is not a heavy weight in favor of the app lication of South Carolina law considering the strong interests Georgia has in having its law applied in these cases. III. CONCLUSION10 For these reasons, we conclude that the district court erred in granting summary judgment in favor of Federa ted and applying South Carolin a law to the consolidated cases. We therefore vacate the judgmen t in Federated’s favor and remand with instruction to grant summary judgment inBoardman’s favor on the choice-of-law issue. VACATED AND REMANDED WITH INSTRUCTION.