U.S. Underwriters Insurance v. City Club Hotel, LLC

395 F.3d 24

• Court: Court of Appeals for the Second Circuit
• Decided: January 7, 2005
• Docket: Docket Nos. 03-7533(L), 03-7543(XAP)
• Status: Published

Opinion

PER CURIAM.

In our prior opinion in this case, familiarity with the facts of which is assumed, we affirmed the judgment of the District Court in part, and certified that portion of the District Court opinion that pertained to attorneys’ fees. See United States Underwriters Ins. Co. v. City Club Hotel, 369 F.3d 102 (2d Cir.2004). Specifically, on April 23, 2004, we certified the following questions to the New York Court of Appeals:

1. Whether, in a case in which an insurance company has brought a declaratory judgment action to determine that it does not have obligations under the policy but has defended in the underlying suit, a defendant prevailing in the declaratory judgment action should be awarded attorneys’ fees expended in defending against that action?

2. Whether, in the special circumstances of this case, attorneys’ fees should be awarded to one or more of the defendants?

Id. at 113.

The New York Court of Appeals answered question one in the affirmative. See U.S. Underwriters Ins. Co. v. City Club Hotel, No. 173, 2004 N.Y. Slip. Op. 09321, 822 N.E.2d 777, 3 N.Y.3d 592, 789 N.Y.S.2d 470, 2004 WL 2902402 (N.Y. Dec. 16, 2004). It declined to answer question two. Id. Under the circumstances, we deem it appropriate to VACATE that part of the decision of the District Court that pertains to attorneys’ fees, and REMAND the case to that court for further consideration in the light of the decision of the New York Court of Appeals.