FILED

United States Court of Appeals

Tenth Circuit

June 15, 2021

Christopher M. Wolpert

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SINCLAIR WYOMING REFINING

COMPANY,

Plaintiff - Appellant,

v.

INFRASSURE, LTD.,

Defendant - Appellee.

No. 19-8017

(D.C. No. 2:15-CV-00194-NDF)

(D. Wyo.)

ORDER AND JUDGMENT

*

Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON, Circuit

Judges.

We abated this appeal and certified a question to the Wyoming Supreme

Court regarding Wyoming law on the award of attorney fees in insurance matters.

Once the Wyoming Supreme Court obliged us with an answer, the abatement was

lifted. We now reverse the district court and remand for further proceedings.

* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
This appeal arises out of an insurance dispute between Sinclair Wyoming

and one of its insurers, Infrassure. Sinclair Wyoming and its parent companies

(generally, Sinclair) are incorporated in Wyoming, where Sinclair’s refineries are

located. To insure its refineries for 2013, Sinclair solicited an all-risk insurance

policy (the Policy) on the London market. Eighteen insurers subscribed to

provide coverage under the Policy. Infrassure, one of the eighteen, assumed

several liability for 7.5% of any covered loss. The Policy covers fire damage, as

well as certain business interruption losses caused by fire.

The Policy lists The Sinclair Companies as the “first named insured,” see

Aplt. App. at 123, and acknowledges it is “a Wyoming Corporation,” see Aplt.

App. at 155. But the Policy lists only a Utah address for Sinclair, not a Wyoming

one. And although the Policy lists a number of The Sinclair Companies’

subsidiaries, including Sinclair Wyoming, as named insureds, see Aplt. App. at

155, the only address provided is the Utah one.

After a fire at Sinclair’s Wyoming refinery, Sinclair filed a claim under the

Policy. Over the course of about a year and a half, Sinclair settled its claim with

the other seventeen insurers, but Infrassure refused to pay its share of the

settlement amount. Infrassure objected to the calculation of Sinclair’s covered

business interruption losses. Subsequently, a lawsuit between Sinclair and

Infrassure ensued in the federal district court for the District of Wyoming.

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In the context of this litigation, Sinclair brought a claim for attorney fees

under Wyo. Stat. Ann. § 26-15-124(c), which provides for an award of attorney

fees against an insurer if the insurer’s refusal to pay a covered amount is

“unreasonable or without cause.” But Infrassure argued this statute was

unavailable to Sinclair because the gateway provision for the Wyoming insurance

code, Wyo. Stat. Ann. § 26-15-101, only applies to policies that have been

“delivered” or “issued for delivery” in Wyoming. Because Sinclair’s complaint

had not alleged that the Policy was issued for delivery or delivered in Wyoming,

argued Infrassure, Sinclair’s claim for attorney fees should be dismissed.

The district court agreed with Infrassure and granted Infrassure’s motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. The district court recognized that the Wyoming courts had not yet

addressed the issue, so it reasoned that the terms “delivered” and “issued for

delivery” required an indication that the parties intended the Policy to be

delivered in Wyoming. It found that merely covering property or risks located in

Wyoming was insufficient to trigger application of the Wyoming insurance code.

Sinclair appealed.

Finding that the Wyoming Supreme Court was best suited to resolve this

Wyoming statutory interpretation issue with potentially broad impact on the

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applicability of the Wyoming insurance code, we asked the Wyoming Supreme

Court to consider the following certified question of law:

Whether, under Wyo. Stat. Ann. § 26-15-101(a)(ii), an

insurance policy is “issued for delivery” or “delivered”

in Wyoming where a Wyoming corporation is a named

insured, the policy covers risks in Wyoming, and the

policy provides that coverage shall apply “in the same

manner and to the same extent” as if the policy had been

issued to the Wyoming corporation, but no copy was

ever conveyed to Wyoming and the policy only lists an

out-of-state address for the insured?

The Wyoming Supreme Court exercised its discretion under Rule 11 of the

Wyoming Rules of Appellate Procedure to accept the question, and it answered

the question in the affirmative. It held:

We conclude the statute clearly and unambiguously

provides that an insurance contract is issued for delivery

in Wyoming if the policy issued is intended to protect an

insured in Wyoming against risks in Wyoming. The

plain meaning of the terms “delivery” and “issue,” as

well as the overall purpose of the Wyoming Insurance

Code, support this meaning.

Sinclair Wyoming Ref. Co. v. Infrassure, Ltd, __ P.3d __, 2021 WL 1850892, at

__ (Wyo. May 10, 2021). In response, the parties filed a stipulated motion to

remand to the district court for further proceedings on Sinclair Wyoming’s claim

pursuant to Wyo. Stat. Ann. § 26-15-124(c).

Because the Policy applies to—as relevant here—Sinclair Wyoming and its

Wyoming refinery, the district court erred in entering summary judgment for

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Infrassure on the matter of attorney fees. We therefore reverse and grant the

stipulated motion to remand.

Entered for the Court

Timothy M. Tymkovich

Chief Judge

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