United Insurance Company, as assignee of NATIONAL UNION FIRE INSURANCE COMPANY OF… v. Unisys Corporation

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2196
UNITED INSURANCE COMPANY,
as assignee of NATIONAL UNION
FIRE INSURANCE COMPANY OF
PITTSBURGH, PA
v.
UNISYS CORPORATION,
Defendant/Third-P
v.
AMERICAN RISK MANAGEMENT, INC.;
ARM INTERNATIONAL CORP.;
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA;
AIG RISK MANAGEMENT, INC.,
Third-Party Defen
Unisys Corporation,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 00-cv-00411)
District Judge: Honorable Katharine S. Hayden
Argued February 28, 2002
Before: ROTH and FUENTES, Circuit Judges
KATZ*, District Judge
(Opinion filed: June 28, 2002)
Gregg S. Sodini, Esquire (Argued)
Buchanan Ingersoll
700 Alexander Park
Suite 300
Princeton, NJ 08540
Jonathan D. Clemente, Esquire
Clemente, Dickson & Mueller
218 Ridgedale Avenue
P.O. Box 1296
Morristown, NJ 07962

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Joseph F. Lagrotteria, Esquire
St. John & Wayne
Two Penn Plaza East
Newark, NJ 07105
Counsel for Appellees
John Ellison, Esquire (Argued)
Timothy P. Law, Esquire
Anderson, Kill & Olick
1600 Market Street
32nd Floor
Philadelphia, PA 19103
Counsel for Appellant
* Honorable Marvin Katz, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
________________
OPINION
_________________
ROTH, Circuit Judge:
Unisys Corporation appeals from a final order of judgment of the United States
District Court for the District of New Jersey, granting United Insurance Company’s
Motion for Partial Summary Judgment. The District Court had subject matter
jurisdiction pursuant to 28 U.S.C. 1332. We have appellate jurisdiction pursuant to 28
U.S.C. 1291. We exercise plenary review over a grant of a motion for summary
judgment. See Metro Transp. Co. v. North Star Reinsurance Co., 912 F.2d 672, 678 (3d
Cir. 1990). In our review of the grant of summary judgment, we view all reasonable
inferences from the evidence in a light most favorable to the nonmoving party. Hamilton
v. Leavy, 117 F. 3d 742, 746 (3d Cir. 1997). Summary judgment may be granted where
there exists no genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c).
United Insurance brought suit seeking payment of retrospective premiums
allegedly due from Unisys. United Insurance is an assignee of National Union Fire
Insurance Co. which had sold a series of annual retrospectively-rated blanket liability
insurance policies to Sperry Corporation, a predecessor company of Unisys.
Unisys argues on appeal that the District Court erred in determining that the
Retrospective Premium Endorsement to the Policy in question was unambiguous and
therefore the loss adjustment and other non-indemnity elements of incurred loss expenses
under the Policy are not subject to the $500,000 maximum cap for recovery.
The District Court found that, in calculating retrospective premiums due from
Unisys, the incurred losses to be included in computing the premium under the Policy
should not include the portion of the losses actually paid and the reserves for unpaid
losses which are in excess of the $500,000 cap. The four non-indemnity elements
contained within the definition of incurred losses (premium on bonds, interest, all loss
adjustment expenses, and expenses incurred in seeking recovery against a third-party) are
not subject to the cap.
From our review of the Policy language, we agree that the Policy is not
ambiguous.
We affirm the District Court’s granting of United’s motion for summary
judgment.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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