CourtListener 2688131

IN THE COURT OF APPEALS OF IOWA

No. 3-1141 / 12-2014
Filed March 26, 2014

TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, a Connecticut
Corporation and ST. PAUL FIRE &
MARINE INSURANCE COMPANY, a
Connecticut Corporation,
Plaintiff-Appellees,

vs.

FLEXSTEEL INDUSTRIES, INC.,
Defendant-Appellant,

and

SENTRY INSURANCE COMPANY, et al.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
This appeal raises two issues: (1) whether a company sued in Indiana is
entitled to dismissal or stay of an Iowa declaratory judgment action filed by its
insurer and (2) whether Iowa law governs the effect of pollution exclusion clauses
in several insurance policies. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Les V. Reddick of Kane, Norby & Reddick, P.C., Dubuque, and Mark
McCormick and Margaret C. Callahan of Belin McCormick, P.C., Des Moines, for
appellant.
Robert V.P. Waterman Jr. and Jason J. O’Rourke of Lane & Waterman,
L.L.P., Davenport, and Kennith C. Newa and Jeffrey C. Gerish of Plunkett
Cooney, Bloomfield Hills, Michigan, for appellee Travelers Property Casualty.
Dominica C. Anderson, Paul J. Killion, and Michael J. Dickman of Duane
Morris, L.L.P., San Francisco, California, and Patrick W. Driscoll, until withdrawal,
and Daniel P. Kresowik of Stanley, Lande & Junter, P.C., Davenport, for appellee
Great American Insurance Company.
2

E. David Wright of Gilloon, Wright & Hamel, P.C., Dubuque, and Heidi
Vogt, Nathan Fronk, and David Westrup of von Briesen & Roper, S.C.,
Milwaukee, Wisconsin, for appellees Sentry Insurance and Federal Insurance
Company.
Valerie Walker Rodriguez of Elenius, Frost & Walsh, Chicago, Illinois, and
Jeffrey Boehlert of Patterson Law Firm, L.L.P., Des Moines, for appellee
Continental Casualty Company.
Elise Allen and Mark Zimmerman of Clausen Miller, P.C., Chicago, Illinois,
and Kevin Collins of Nyemaster Goode, P.C., Cedar Rapids, for appellees
National Union Fire Insurance Company and Illinois National Insurance
Company.
Kent Gummert of Lederer, Weston & Craig, P.L.C., West Des Moines, and
Charles Morrissey and Wayne Karbal of Karbal, Cohen, Economou, Silk
& Dunne, Chicago, Illinois, for appellees Hartford Fire Insurance Company and
Twin City Fire Insurance Company.
Roger Stone and Paul Gamez of Simmons, Perrine, Moyer & Bergman,
P.L.C., Cedar Rapids, and Rebecca R. Haller of Meckler, Bulger, Tilson, Marick
& Pearson, Chicago, Illinois, for appellee American Guarantee & Liability
Insurance Company.
Ross D. Roloff of Merlo, Kanofsky & Gregg, L.T.D., Chicago, Illinois, and
Matthew Novak of Pickens, Barnes & Abernathy, Cedar Rapids, for United States
Fire Insurance Company.
James Zmuda of Califf & Harper, P.C., Moline, Illinois, and James Murray
and Todd Rowe of Tressler, L.L.P., for appellee Fireman’s Fund Insurance
Company.
Heard by Danilson, P.J., and Vaitheswaran and Mullins, JJ.
3

VAITHESWARAN, J.

This appeal raises two issues: (1) whether a company sued in Indiana is

entitled to dismissal or stay of an Iowa declaratory judgment action filed by its

insurer and (2) whether Iowa law governs the effect of pollution exclusion clauses

in several insurance policies.

I. Background Proceedings

Chair manufacturer Flexsteel Industries, Inc., which maintains its

headquarters in Dubuque, Iowa, was sued in Indiana state court by individuals

claiming to have been exposed to chemicals released from two of its Indiana

plants. Flexsteel carried primary and excess liability insurance issued by a

number of insurance companies. Two of those companies, Travelers Property

Casualty Company of America and St. Paul Fire & Marine Insurance Company,

sued Flexsteel in Iowa, seeking a declaration that pollution exclusion provisions

eliminated coverage, including any duty to defend or indemnify Flexsteel in

connection with the Indiana lawsuit. Other insurers entered the Iowa lawsuit and,

in time, sought the same relief as Travelers and St. Paul.

Meanwhile, Flexsteel filed a third-party insurance coverage complaint in

the Indiana action. The company also moved to dismiss or stay the Iowa action

pending resolution of the Indiana litigation. Travelers and St. Paul, in turn,

moved for summary judgment in the Iowa action. They asserted that, under Iowa

law, the pollution exclusion barred coverage.

The Iowa district court denied Flexsteel’s motion to dismiss or stay and

granted Travelers’ and St. Paul’s motion for summary judgment. Applying Iowa
4

law, the court concluded Travelers and St. Paul did not have a duty to defend

Flexsteel in the Indiana litigation.

The remaining insurers in the Iowa litigation filed their own motions for

summary judgment. Additionally, Travelers and St. Paul filed a second

declaratory judgment action in Iowa state court to resolve coverage obligations in

a separate environmental lawsuit filed against Flexsteel in Indiana federal court.

Flexsteel again moved to dismiss or stay this action, and Travelers and St. Paul

again moved for summary judgment. The Iowa district court denied the motion to

dismiss or stay and granted the insurers’ summary judgment motions in both

suits. Invoking its reasoning in the first summary judgment ruling, the court

concluded “Iowa law applies to all of the policies at issue and . . . the pollution

exclusion provisions have full force and effect.” This appeal followed.

II. Denial of Motion to Dismiss or Stay

Flexsteel contends the district court should not have denied its motions to

dismiss or stay the Iowa actions. All involved agree the factors relevant to a

ruling on a motion for stay are as follows:

“comity, the desirability of avoiding a multiplicity of forums, whether
the foreign litigation is at an advanced or preliminary stage, the
likelihood of obtaining complete relief in the foreign jurisdiction, and
the possibility that a judgment entered in the foreign jurisdiction will
give rise to collateral estoppel or will render the matter before the
court res judicata. Where a prior foreign action involves the same
parties and the same issues and is pending before a court capable
of doing prompt and complete justice, the court’s discretion may be
freely exercised in favor of a stay.”

First Midwest Corp. v. Corporate Fin. Assocs., 663 N.W2d 888, 891 (Iowa 2003)

(quoting 1 Am. Jur. 2d Actions § 78, at 773 (1994)). They also agree that a ruling
5

on this type of motion lies within the district court’s discretion and will not be

overturned absent an abuse of discretion. See id. at 890–91.

Flexsteel contends the district court’s ruling reflects such an abuse of

discretion. The company cites Travelers’ conduct before the Indiana lawsuit was

filed and, specifically, its refusal to respond to requests for confirmation of

coverage and its “race” to the Iowa courthouse. Flexsteel specifically asserts

that “in contriving to ensure that their Iowa action was the first-filed coverage

action,” Travelers engaged in impermissible “forum-shopping” that required

dismissal of the Iowa action. Flexsteel also contends the district court placed too

much emphasis on the “first-filed” status of the initial declaratory judgment action.

Flexsteel’s forum-shopping argument finds some support in First Midwest,

where the court noted that other jurisdictions have scrutinized declaratory

judgment actions “‘to ensure that the declaratory plaintiff is not motivated by

forum-shopping concerns.’” Id. at 892 (quoting BASF Corp. v. Symington, 50

F.3d 555, 558 (8th Cir. 1995)). While Travelers and St. Paul assert that the court

did not formally adopt forum-shopping as a factor for consideration, the court

evidently found the concern significant enough to mention it. See BASF, 50 F.3d

at 559 (“Despite the fact that forum shopping is not among the factors

enumerated in Murphy Oil, it is appropriate that we consider it when relevant.”).

That said, both First Midwest and BASF turned on a defendant’s attempt

to wrest control of the forum selected by the “natural plaintiff,” defined as the

party claimed to have been injured. See id. at 558 (stating “[T]he natural

plaintiff’s choice of forum and law will be disturbed only in exceptional

circumstances.”); First Midwest, 663 N.W.2d at 890, 892 (noting plaintiff filed suit
6

in Nebraska and defendant then filed declaratory judgment action in Iowa and

citing BASF for proposition that more scrutiny is required where defendant is

attempting to wrest choice of forum from natural plaintiff). Here, in contrast, the

“natural plaintiffs” have no skin in the game. Their lawsuits were filed in Indiana

and remain in Indiana. The Iowa lawsuits are between “natural” defendant

Flexsteel and its insurers. For that reason, the rationale underlying the forum-

shopping consideration is inapplicable, and we decline to apply it in our review of

the stay ruling.

We turn to Flexsteel’s second argument, the district court’s observation

that Travelers’ and St. Paul’s declaratory judgment action was entitled to go

forward because it was the first-filed coverage action. Contrary to Flexsteel’s

assertion, the court did not rely on the “first-filed” status of the action to the

exclusion of the other factors cited in First Midwest. The court simply gave that

factor “heavy weight.” The court went on to consider and apply the “[o]ther

factors,” as follows:

There will be no multiplicity of forums on the coverage
issues, because it can be addressed by the Iowa Court, which can
grant complete relief on the issue. Both the underlying Indiana tort
action and the third-party coverage claim filed therein are in the
preliminary stage. Thus, the possibility of an Indiana court entering
a judgment that will result in collateral estoppel or render the
coverage issue res judicata is, if existent, minimal. The Iowa action
also involves more interested parties and thus is more
comprehensive.

We discern no abuse of discretion in the court’s application of these factors.

Accordingly, we affirm the district court’s denial of Flexsteel’s motion for stay or

dismissal of the Iowa action. We reach the same conclusion with respect to the

court’s second ruling on the various insurers’ motions to stay or dismiss which,
7

as noted, were premised on the court’s first ruling. We also affirm the court’s

denial of Flexsteel’s motion to stay or dismiss the second Iowa action related to

the federal lawsuit in Indiana.

III. Choice of Law

At the heart of the Iowa filings is the law on pollution exclusions. Iowa law

holds that pollution exclusions like the ones contained in Flexsteel’s policies

unambiguously bar coverage for bodily injury or property damage resulting from

the release of pollutants. Bituminous Cas. Corp. v. Sand Livestock Sys., Inc.,

728 N.W.2d 216, 222 (Iowa 2007). Indiana law, in contrast, holds that language

similar to the language contained in these policies is ambiguous and is construed

against the insurer and in favor of coverage. State Auto. Mut. Ins. Co. v. Flexdar,

Inc., 964 N.E.2d 845, 851–52 (Ind. 2012). Understandably, then, the insurers

want Iowa law to apply, while Flexsteel would prefer the application of Indiana

law on the coverage issue.

Against this backdrop, Flexsteel contends the district court erred in

concluding Iowa rather than Indiana law governs the interpretation of the

pollution exclusion. See City of Johnston v. Christenson, 718 N.W.2d 290, 296

(Iowa 2006) (setting forth the standard of review). Because the insurers did not

include a choice-of-law provision in their insurance contracts, Flexsteel’s

argument requires us to consider the Restatement (Second) of Conflict of Laws.

See Cole v. State Auto. & Cas. Underwriters, 296 N.W.2d 779, 781 (Iowa 1980)

(noting “contracting parties can themselves determine the law which is to control”

and applying Restatement where they did not). The parties cite three provisions

of that treatise: sections 193, 188, and 6.
8

We begin with the most specific provision, section 193. See Chesapeake

Utils Corp. v. Am. Home Assur. Co., 704 F. Supp. 551, 556 (D. Del. 1989)

(“Whereas § 188 announces choice of law principles in contract disputes

generally, § 193 specifically dictates choice of law in insurance disputes.”);

United Fire & Cas. Co. v. Titan Contractors Serv., Inc., No. 4:10-CV-2076 CAS,

2013 WL 316060, at *5 (E.D. Mo. Jan. 28, 2013) (“Because the policy at issue is

a liability insurance contract, our analysis begins with section 193.”); Reichhold

Chems., Inc. v. Hartford Accident & Indem. Co., 750 A.2d 1051, 1056 (Conn.

2000) (“With respect to liability insurance contracts, the starting point is § 193 of

the Restatement (Second), supra, which creates a rebuttable presumption in

favor of the state where the insured risk is located. In order to overcome this

presumption, another state’s interest must outweigh those of the state where the

insured risk is located and must be sufficiently compelling to trump the § 193

presumption.”). That provision states:

The validity of a contract of fire, surety or casualty insurance and
the rights created thereby are determined by the local law of the
state which the parties understood was to be the principal location
of the insured risk during the term of the policy, unless with respect
to the particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the transaction and
the parties, in which event the local law of the other state will be
applied.

Restatement (Second) of Conflict of Laws § 193 (1971) (emphasis added).

“Casualty insurance” includes liability insurance policies. See Gabe’s Constr.

Co., Inc. v. United Capitol Ins. Co., 539 N.W.2d 144, 146–47 (Iowa 1995).

All agree that that the key determination under this provision is the

“principal location of the risk.” Flexsteel argues the principal location is Indiana.
9

It notes that “[t]he only sites for which [it] seeks coverage are located in Indiana;

the only lawsuits for which [it] seeks a defense were filed in Indiana; and the only

allegations against Flexsteel relate to its alleged conduct in Indiana.” Travelers

counters that “[w]here as here, the liability policies are multiple-risk policies

covering a national, publicly traded company conducting business in virtually all

fifty states, there is no principal location of the risk, and Section 193 carries little

or no weight in the analysis.” In resolving these arguments, we begin with the

comments to section 193.

Comment b defines “insured risk” as “the object or activity which is the

subject matter of the insurance.” Restatement (Second) of Conflict of Laws

§ 193 cmt. b. The comment continues: “The location of the insured risk will be

given greater weight than any other single contact in determining the state of the

applicable law provided that the risk can be located, at least principally, in a

single state.” Id.

Situations where this cannot be done, and where the location of the
risk has less significance, include (1) where the insured object will
be more or less constantly on the move from state to state during
the term of the policy and (2) where the policy covers a group of
risks that are scattered throughout two or more states.

Id. The principal location “enjoys greatest significance when an immovable is

involved, such as when the risk insured against is damage by fire to a particular

building.” Id.

Because we are dealing with commercial liability policies, the object or

activity which is the subject matter of the insurance is not an immovable object,

such as a building. The object is Flexsteel’s business operation. See Cont’l Ins.

Co. v. Beecham, Inc., 836 F. Supp. 1027, 1036 (D.N.J. 1993) (“[T]he relevant
10

consideration is the location of the risks covered by the contract at the time the

contract was entered into and throughout the term of the contract, not where any

given insured risk came to fruition.”); United Fire, 2013 WL 316060, at *5 (“[T]he

insurance covers the liability associated with a contractor’s business operations.

The insured risk, therefore, is not an immovable object such as a particular

building or house.”). That said, the summary judgment record reveals that the

primary location of Flexsteel’s buildings and the primary location of Flexsteel’s

business operation are one and the same.

According to that record, Flexsteel’s business operation was located at ten

sites in Indiana and one site in Iowa during the relevant policy periods. No other

business operations were identified, either in these two states or elsewhere. Nor

does the summary judgment record reveal that the business operation was

“constantly on the move from state to state.” See Restatement (Second) of

Conflicts of Laws § 193 cmt. a (“There may be no principal location of the insured

risk in the case of contracts for the insurance of things, such as ships, trucks,

airplanes and railroad cars, that are constantly on the move from state to state.

In such a case, the location of the risk can play little role in the determination of

the applicable law. The law governing insurance contracts of this latter sort must

be determined in accordance with the principles set forth in the rule of §188.”).

Finally, there is no indication that the policies covered a group of risks scattered

throughout two or more states. See Restatement (Second) of Conflicts of Laws

193 cmt. 6 (emphasis added.) According to the summary judgment record, the

business operation was located at fixed plants throughout one state—Indiana—

and at one site in another state—Iowa. See Emp’rs Mut. Cas. Co. v. Lennox Int’l,
11

Inc., 375 F. Supp. 2d 500, 507 (S.D. Miss. 2005) (finding no principal location but

noting that, if there was one, it was not Mississippi, which only had one location,

but Texas that had thirty-one separate locations). Accordingly, application of

comment b would suggest that the insured risk is principally located in a single

state: Indiana.

We turn to comment f, which specifically addresses “multiple-risk policies.”

It states:

A special problem is presented by multiple risk policies which
insure against risks located in several states. A single policy may,
for example, insure dwelling houses located in states X, Y and Z.
These states may require that any fire insurance policy on buildings
situated within their territory shall be in a special statutory form. If
so, the single policy will usually incorporate the special statutory
forms of the several states involved. Presumably, the courts would
be inclined to treat such a case, at least with respect to most
issues, as if it involved three policies, each insuring an individual
risk. So, if the house located in state X were damaged by fire, it is
thought that the court would determine the rights and obligations of
the parties under the policy, at least with respect to most issues, in
accordance with the local law of X. In any event, that part of a
policy which incorporates the special statutory form of a state would
be construed in accordance with the rules of construction of that
state.

Restatement (Second) of Conflict of Laws § 193 cmt. f.

Courts have reached differing conclusions about the meaning and

applicability of this provision. In St. Paul Fire & Marine Insurance Co. v. Building

Construction Enterprises, Inc., 526 F.3d 1166, 1169 (8th Cir. 2008), the court

was asked to treat construction contracts insured by multiple-risk policies

covering the United States and Canada as separately insured contracts under

comment f. The court declined the invitation, stating “we find no indication that

the parties intended a different state’s laws to control interpretation of the
12

insurance policies for each written construction contract.” St. Paul Fire, 526 F.3d

at 1169. The court noted that the insurance policies and other documents did not

identify where the risk would be principally located during the life of the policy.

Id.; see also Brown v. Home Ins. Co., 176 F.3d 1102, 1106 (8th Cir. 1999)

(noting that even under the approach advocated in comment f, “it is not always

possible to find a location for the insured risk”); Weitz Co. v. Lexington Ins. Co.,

___ F. Supp. 2d ___, ___, 2013 WL 5998243 at *11–12 (S.D. Iowa 2013)

(following St. Paul Fire); Aetna Cas. & Sur. Co. v. Dow Chem. Co., 883 F. Supp.

1101, 1108 (E.D. Mich. 1995) (“[B]ecause the Fireman’s Fund policy covers

Dow’s liability and such liability is spread throughout the United States and

Canada, there is no principal location of the risk and section 193 does not

apply.”); Beecham, 836 F. Supp. at 1036 (“By its very terms, however, comment f

is of limited scope. It applies only to policies covering risks for which a state

requires a particular statutory form, typically fire insurance policies, which form

will generally be incorporated into the policy.”).

Other jurisdictions have applied comment f to policies covering risks in

multiple jurisdictions. See Shapiro v. Associated Int’l Ins. Co., 899 F.2d 1116,

1120 (11th Cir. 1990) (“[A]lthough the risks covered under the Associated

umbrella policy were spread out over several states, the Restatement advises

application of the substantive law of the state in which each individual risk is

located when adjudicating issues concerning that risk, treating the

comprehensive policy effectively as several different policies.”); Bituminous Cas.

Corp. v. Sand Livestock Sys., Inc., No. C04-4028-PAZ, 2005 WL 1476441, at *5–

6 (N.D. Iowa June 22, 2005) (applying comment f in an opinion predating St. Paul
13

Fire and concluding “each of the insurance policies should be treated as four

separate policies, with separate commercial lines policies for Iowa, Nebraska,

Kansas, and Illinois, and separate umbrella policies for Iowa, Nebraska, Kansas,

and Illinois”); Curran Composites, Inc. v. Liberty Mut. Ins. Co., 874 F. Supp. 261,

264 (W.D. Mo. 1994) (“The insurance policies in this case covered multiple

manufacturing facilities located in several different states. Under § 193 comment

(f), which addresses multiple risk insurance policies covering risks located in

different states, each insured risk is treated as though it were insured by a

separate policy. Accordingly, the law of the state in which the specific risk is

located generally applies.”); Pioneer Chlor Alkali Co. v. Nat’l Union Fire Ins. Co.

of Pittsburgh, Pennsylvania, 863 F. Supp. 1237, 1240 (D. Nev. 1994) (“National

Union points out that Pioneer’s Policy covered several facilities in several states.

Section 193 of the Restatement envisions such multiple risk policies. In multiple

risk policies, courts treat the policy as though it were several separate policies so

that a dispute involving a particular facility will be governed by the law of the state

in which that facility is located.”); Chesapeake, 704 F. Supp. at 557 (applying

Restatement section 193 comment f as well as section 188 and concluding “the

claims relating to the Maryland site will be analyzed under Maryland law, while

Delaware law will govern those claims pertaining to the Delaware site.”);

Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc., 17 Cal. Rptr. 2d 713,

719 (Cal. Ct. App. 1993) (“We believe the multiple risk approach suggested by

Witkin and the Restatement should apply here.”); Commercial Union Ins. Co. v.

Porter Hayden Co., 698 A.2d 1167, 1205–06 (Md. Ct. App. 1997) (applying

Restatement section 193 comment f approach).
14

The Iowa Supreme Court has not weighed in on this debate, and we find it

unnecessary to do so either because comment f begins with an assumption that

there is no primary location of the insured risk. As discussed, comment b

suggests there is a primary location of the insured risk—Indiana.

We conclude Restatement 193 as amplified by comment b requires the

application of Indiana law rather than Iowa law to the interpretation of the

pollution exclusion provision of the insurance policies.

We reach the same conclusion under the more general Restatement

provision, section 188. That section provides in part:

(2) In the absence of an effective choice of law by the parties
(see § 187), the contacts to be taken into account in applying the
principles of § 6[1] to determine the law applicable to an issue
include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation
and place of business of the parties.
These contacts are to be evaluated according to their
relative importance with respect to the particular issue.
(3) If the place of negotiating the contract and the place of
performance are in the same state, the local law of this state will

1
(1) A court, subject to constitutional restrictions, will follow a
statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the
choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be
applied.
Restatement (Second) of Conflict of Laws § 6.
15

usually be applied, except as otherwise provided in §§ 189–199
and 203.

Restatement (Second) of Conflict of Laws § 188. The Iowa Supreme Court

invoked this provision in Cole v. State Automobile & Casualty Underwriters, 296

N.W.2d 779, 781–82 (Iowa 1980). The court stated, “We think it is clear that

choice-of-law questions are now to be determined under the Restatement

(Second) test: intent of the parties or the most significant relationship. In failing

to recognize this the trial court erroneously applied the discarded rules of the first

Restatement.” Cole, 296 N.W.2d at 782.

We begin with factors (a), (b), and (e), the place of contracting and

negotiating and “the domicil, residence, nationality, place of incorporation and

place of business of the parties.” There is no question Flexsteel was

headquartered in Iowa and the insurance agent listed on the Travelers policies

was located in Iowa. But no in-person negotiations took place in Iowa. Indeed,

Travelers’ underwriting offices were in St. Louis and Chicago, and

communication with Flexsteel was primarily, if not exclusively, telephonic and

electronic. Accordingly, the place of contracting and negotiating and the other

cited factors are of little significance. See Restatement (Second) of Conflict of

Laws § 188 cmt. e (“This contact is of less importance when there is no one

single place of negotiation and agreement, as, for example, when the parties do

not meet but rather conduct their negotiations from separate states by mail or

telephone.”).

The place of performance is unclear. If the focus is on where the

premiums were paid, the record reflects that Travelers’ out-of-state billing units
16

sent the premium statements to Flexsteel’s Iowa location or the location of its

Iowa agent. See White v. Famers Ins. Exch., No. C96-1052, 1998 WL

34112764, at *4–5 (N.D. Iowa Feb. 6, 1998) (citing Hartford Accident & Indem.

Co. v. Cooper Park Dev. Corp., 169 F.2d 803 (3d Cir. 1948) for the proposition

that performance occurs where premiums are paid); see also Weitz Co., 2013

WL 5998243, at *13 (S.D. Iowa 2013) (stating place of performance of insurance

contract was place where premiums were paid absent some provision in the

policy to the contract). If the focus, instead, is on where insurance payouts would

be made, Indiana is the state with the most significant relationship. See

Motorists Mut. Ins. Co. v. Yahya, ___ F. Supp. 2d ___, ___, 2014 WL 172123, at

*4 (N.D. Ind. 2014) (stating the place of performance is where “insurance funds

will be put to use” (citing Hartford Accident & Indem. Co. v. Dana Corp., 690

N.E.2d 285, 293 (Ind. Ct. App. 1997)). This factor, therefore, is in equipoise.

We turn to the location of the subject matter of the contract. With respect

to this factor, Flexsteel encourages us to zero in on the specific language in

dispute—the pollution exclusion clause—while the insurers ask us to examine

the contract as a whole. Joseph L. Wilmotte & Co. v. Rosenman Bros., 258

N.W.2d 317, 326 (Iowa 1977) is instructive on this point. There, the court stated,

“In determining which state has the most significant relationship to the issue in

question various contacts with the different states are determined.” Joseph L.

Wilmotte, 258 N.W.2d at 326 (emphasis added). The court proceeded to analyze

the question as follows:

In this case the issue in dispute centers around an arbitration
provision which permitted the AAA administrator to pick New York
as the locale for arbitration, which he in fact selected. Since the
17

arbitration began in New York and the defendant initially
participated there in the proceedings, albeit it subsequently
attempted to withdraw, New York can be seen as having the most
significant relationship to the issue of the validity and effect of the
arbitration provisions of the contract.

Id. Adopting this specific-issue approach, we conclude the location of the subject

matter of the contract was Indiana. As discussed in connection with our

application of section 193, the summary judgment record tells us the principal

location of the insured risk was Indiana. Additionally, the environmental lawsuits

were filed in Indiana and were premised on claimed hazards in Indiana alleged to

have been sustained by Indiana residents. Indiana had the most significant

relationship.

In sum, the choice-of-law provisions of sections 193 and 188 require the

application of Indiana law to the interpretation of the pollution exclusion clauses.

We find it unnecessary to separately analyze section 6 of the Restatement.

IV. Conclusion

We affirm the district court’s denial of Flexsteel’s motions for stay or

dismissal and reverse the district court’s grant of the insurers’ motions for

summary judgment. We vacate the summary judgment rulings and remand for

further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.