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In re September 11 Property Damage Litigation

Case No. 10-2970-cv(L) (C.A. 2, Apr. 8, 2011)

Intervenors-Appellants World Trade Center Properties LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 3 World Trade Center LLC, 4 World Trade Center LLC, and 7 World Trade Company, L.P. (collectively “WTCP Plaintiffs”) appeal from a final Order of the United States District Court for the  Southern District of New York (Alvin K. Hellerstein, District Judge) granting  Plaintiffs-Appellees’ (collectively “Settling Plaintiffs”) and Defendants-Appellees’  (collectively “Aviation Defendants”) joint motion for orders approving their  Settlement Agreement and Mutual Release of Claims. We hold that the Air  Transportation Safety and System Stabilization Act of 2001 (“ATSSSA”), Pub.  L. No. 107-42, 115 Stat. 230 (2001) (codified as amended at 49 U.S.C. § 40101,  note), does not preempt New York State’s “first-come, first-served” settlement  rule, and that the proposed settlement payments reduce each contributing Aviation Defendants’ remaining liability pursuant to the liability limits defined  in ATSSSA. We also conclude that the district court did not abuse its discretion in finding that the Settling Plaintiffs and Aviation Defendants entered into their  settlement agreement in good faith. Accordingly, we affirm the district court’s  approval of the settlement.

Intervenors-Appellants World Trade Center Properties LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 3 World Trade Center LLC, 4 World Trade Center LLC, and 7 World Trade Company, L.P. (collectively “WTCP Plaintiffs”) appeal from a final Order of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge) granting Plaintiffs-Appellees’ (collectively “Settling Plaintiffs”) and Defendants-Appellees’ (collectively “Aviation Defendants”) joint motion for orders approving their Settlement Agreement and Mutual Release of Claims, dated February 23, 2010. The district court also ordered all amounts paid pursuant to the settlement agreement to be credited to the contributing Aviation Defendants’ respective  liability ceilings under § 408(a)(1) of the Air Transportation Safety and System  Stabilization Act of 2001 (“ATSSSA”), Pub. L. No. 107-42, 115 Stat. 230 (2001)  (codified as amended at 49 U.S.C. § 40101, note). It further found that  Defendant-Appellee Huntleigh USA Corp.’s (“Huntleigh”) insurers will exhaust  the limits of Huntleigh’s liability insurance coverage by making payments  pursuant to the settlement agreement.

The WTCP Plaintiffs argue that the district court’s application of New York state settlement rules was contrary to, and thus preempted by, ATSSSA. They also contend that the court failed to make a proper evaluation of the fairness of the settlement agreement, and that the court erred in crediting the proposed settlement payments to the contributing Aviation Defendants’ respective liability limits under ATSSSA. We hold that ATSSSA does not preempt New York State’s “first-come, first-served” settlement rule, and that the  proposed settlement payments pursuant to the settlement agreement properly  reduce the contributing Aviation Defendants’ remaining liability under  ATSSSA’s liability limits. We further conclude that the district court did not  abuse its discretion in finding that the Settling Plaintiffs and Aviation Defendants entered into their settlement in good faith.

BACKGROUND

This case concerns the multitude of property damage claims that arose from the terrorist attacks of September 11, 2001, when American Airlines Flight 11 and United Air Lines Flight 175 struck Towers One and Two of the World Trade Center. Defendant-Appellee Globe Airport Security Services, Inc. (“Globe”) provided security services for Defendant-Appellee American Airlines, Inc. (“American”) and screened the passengers aboard Flight 11. Huntleigh provided similar services for Defendant-Appellee United Air Lines, Inc. (“United”), and screened the passengers aboard Flight 175.
 

 

Judge(s): Debra Ann Livingston
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Civil Procedure , Damages , Insurance , Property , Transportation
 
Circuit Court Judge(s)
Debra Livingston
Gerard Lynch
Barrington Parker

 
Trial Court Judge(s)
Alvin Hellerstein

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Gregory Joseph Gregory P. Joseph Law Offices LLC
Douglas Pepe Gregory P. Joseph Law Offices LLC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Desmond Barry, Jr. Condon & Forsyth LLP
Roger E. Podesta Debevoise & Plimpton LLP

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
Cathi Hession Flemming Zulack Williamson Zauderer LLP
Richard Williamson Flemming Zulack Williamson Zauderer LLP

 

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judge martin concluded that their position was so far apart from that of the19 it would have done so in far more explicit terms.5 settling plaintiffs' claims, reflected a 72 percent discount from the settling6 b. whether atsssa's purpose and statutory scheme preempt new6 three respects. first, the wtcp plaintiffs argue that the district court's9 colisee re, formerly known as axa re and successor to the interests39 and collusion, the wtcp plaintiffs have not raised this argument on appeal. it plaintiffs") appeal from a final order of the united states district court for the24 in re: september 1117 concluded that damages should be allocated approximately 60 percent to flight16 16 easterwood, 507 u.s. 658, 664 (1993)).4 3 judgment pursuant to fed. r. civ. p. 54(b). judgment was entered in the2 10 the events of september 11." 335 f.3d at 58. we acknowledged that congress16 towards the end of the mediation proceedings between the settling1 although they argued below that the settlement was the result of secrecy articulated their reasons for limiting the settlement contributors to four of the4 f.3d 642, 654 (2d cir. 1999). we review a district court's factual conclusions6 overall statutory scheme, they are entitled to adequate compensation notwith-3 28 namely § 408(a)(4), which uses similar language to limit the "liability" of certain18 usual case, if the words of a statute are unambiguous, judicial inquiry should16 congress provided explicitly for the treatment of certain other claims involving16 ing syndicates no. 1225 and 1511; consolidated edison company of new20 reading. it thus makes better sense to read "liability" to include the settlement7 through the settlement of claims. this reading of "liability" in § 408(a)(1)8 _____________________________________19 sought to avoid the undesirable effects of litigation in multiple state and federal17 provided similar services for defendant-appellee united air lines, inc.8 471 u.s. 707, 713 (1985)). if, as here, a statute contains an express preemption20 karoon capital management, inc.; n.s. windows llc; tower computer29 13 certain underwriters at lloyd's of london comprising syndicates no.29 responsible for paying the settlement amount. however, the settling parties3 insureds if the other aviation defendants were not released.17 due to the great number of september 11 related lawsuits, the district discussion in canada life, however, referred solely to the purposes of atsssa's21 district court's: 1) approving both the settlement and the allocation of payments7 for all actions, and found that the goal of requiring a single forum was to "ensure14 dants' insurers sought to avoid the costs of continued discovery of their four16 purposes and objectives of congress." in re wtc disaster site, 414 f.3d 352,18 12 plc; american alternative insurance corporation; the princeton36 agreement for abuse of discretion. see neilson v. colgate-palmolive co., 1995 i. whether the district court properly applied state law to10 we conclude that new york's "first-come, first-served" rule, as applied by5 ii. whether the district court failed to make a proper evaluation of13 14 24 defendants for debris removal claims. while paragraph (4) specifies the limits19 atsssa for two primary reasons. first, they contend that atsssa's liability21 opinion and order was final and appealable in each of the settled actions and19 trade center llc, 2 world trade center llc, 3 world trade center llc, 413 amount greater than the limits of liability insurance coverage maintained by"11 new york, new york, for defendants-appellees.17 6 on a claim-by-claim assessment of potential liability. judge martin explained,9 1st dep't 1996). such settlements are not "voluntary" or "additional insurance,"3 madeira branch, formerly known as axa re madeira branch; portman4 among the several groups of plaintiffs that filed suit against the aviation10 so long as it does not act in bad faith. allstate ins. co., 788 n.y.s.2d at 40219 southern district of new york (alvin k. hellerstein, district judge) granting16 settlement agreement and mutual release of claims, dated february 23, 2010.28 atsssa. second, they argue that the district court failed to make a proper11 waive such a cause of action pursuant to § 408(b). see atsssa §§ 404-06. and15 feinberg, 345 f.3d 135, 139 (2d cir. 2003) (per curiam) (quoting atsssa16 the wtcp plaintiffs argue that the district court's application of new9 before: b.d. parker, livingston, and lynch, circuit judges.11 see5 axa corporate solutions assurance uk branch; axa insurance7 preempts state law pursuant to the supremacy clause, u.s. const. art. vi, cl.14 proposed settlement payments to the contributing aviation defendants'13 aviation defendants' liability limits2 common meaning." (internal quotation marks and alteration omitted)); see also14 and their checkpoint security companies. the aviation defendants were also10 affirmed.4 "settlement . . . to which paragraph (4) applies" under the wtcp plaintiffs'6 globe aviation services corporation; globe airport security services,38 from the law . . . of the state in which the crash occurred unless such law is11 resolved by the time mediation began. id. ¶ 12. the settling parties decided12 pany uk general branch; muenchener rueckversicherunes-34 liability. we are not persuaded.9 aviation defendants. the aviation defendants believed that adding other5 settlement offer by the aviation defendants. both sides accepted judge martin's8 asserted claims, alleging, inter alia, that, but for the negligence of the aviation13 torraco v. port auth. of n.y. & n.j., 615 f.3d 129, 142 (2d cir. 2010) ("in the15 discussing damages on a claim-by-claim basis, none of these issues could be11 limits created a "limited fund," from which they are entitled to a just and fair1 but rather "reduc[e] the liability remaining under the policy." duprey, 2564 he may be liable to pay to third parties arising out of the insured's conduct."14 12 count because they were not determined on the basis of the aviation defendants'8 applied state law settlement rules to the settlement agreement.11 parties' mediator, judge martin, attested that the settling parties "hotly9 compensation." id. at 55. the wtcp plaintiffs' contentions lack merit.8 (2d ed. 2000) ("[l]iability insurance protects the insured against damages which13 under the terms of the agreement, four of the aviation defendants are to pay13 the wtcp plaintiffs' claim that atsssa created a "limited fund,"6 and liabilities of sps reassurance; colisee re canadian branch,1 18 desmond t. barry, jr., condon & forsyth llp,16 11 word "settlement" reduced to surplusage, since there could be no5 plaintiffs and the aviation defendants, which lasted two full weeks, judge2 meaning and read them in their appropriate context. see bilski v. kappos, 13011 payments made here. the district court therefore did not abuse its discretion or8 which judge martin believed to represent a reasonable settlement of all of the5 estates, llc; 80 lafayette associates, llc; barcley dwyer co., inc.;28 trade center. defendant-appellee globe airport security services, inc.5 that the district court erred in crediting the settlement payments to the aviation13 argument.4 the settlement14 in finding that the settling plaintiffs and aviation defendants entered into their1 _____________________________________15 10-3139-cv(con), 10-3140-cv(con), 10-3141-cv(con), 10-3143-cv(con),11 corporate solutions assurance, for itself and successor to the11 atsssa.12 is therefore waived. see norton v. sam's club, 145 f.3d 114, 117 (2d cir. 1998) pany, llc, formerly known as burns international services corpora-3 175. because huntleigh had a small amount of insurance relative to the other17 defendants' atsssa liability limits because such payments were not based on14 (argued: march 10, 2011 decided: april 8, 2011)7 in some circumstances, however, "parties are unwilling to drop litigation unless1 distribution. second, they argue that pursuant to atsssa's provisions and its2 of "liability" for such entities, paragraph (5) specifies a priority of payments for20 insurance company; allianz insurance company of canada; allianz25 a lump sum applicable to all of the settling plaintiffs' claims, and is not based8 number and, on february 23, 2010, entered into their settlement agreement9 on appeal, the wtcp plaintiffs contend that the district court erred in8 that this provision ­ far from creating a fund for the payment of claims ­ instead13 de reassurance de monte carlo; industrial risk insurers and its16 rity services company, llc, formerly known as burns international1 2 life, 335 f.3d at 55 (noting that § 408(a) "limits the liability for the events of20 (s.d.n.y. 2008). 21 mc 101 encompassed wrongful death, personal injury and 491 (1957). plaintiffs' total claimed damages of $4.4 billion, and was higher than the last7 lloyd's london, as members of syndicates numbered 1212, 1241, 79, 506,22 debra ann livingston, circuit judge:20 14 brief), gregory p. joseph law offices llc, new12 this case concerns the multitude of property damage claims that arose2 for damages sustained as a result of those crashes" (emphasis added)); canada19 court is affirmed.15 [an aviation defendant]." atsssa § 408(a)(1) (emphasis added). "liability,"3 between the contributing aviation defendants as consistent with atsssa; 2)8 approval of the settlement.3 contributed to the settlement. in addition, the aviation defendants contributing13 ed. 2009) (emphasis added); see also 15 holmes' appleman on insurance § 111.112 this reading also coheres with other provisions of atsssa title iv ­17 aviation defendants' remaining liability pursuant to the liability limits defined24 371-72 (2d cir. 2005) (quoting hillsborough cnty. v. automated med. labs., inc.,19 market, inc.; adem arici; omer ipek; mvn associates, inc.; marsha van31 preclusive effect on non-parties or substantially impairing or impeding non-19 disagree. canada life discussed congress's decision to require a single forum13 they made detailed presentations on their differing positions. decl. of john s.11 its constitutional limits); 2) state law "actually conflicts" with federal law; or 3)16 in exchange, each settling plaintiff is to execute and deliver releases discharging3 19 21 coverage. on july 23, 2010, the district court issued an order clarifying that its18 suisse versicherungs-gesellschaft; allianz versicherungs-26 (emphasis added)). settlements, in turn, "reduc[e] the liability remaining under15 tion; pinkerton's llc, formerly known as pinkerton's inc.;4 "liability," as used in § 408(a)(4), referred only to payments for legally3 15 section 408(b)(2) of atsssa provides that the substantive law for decision9 the wtcp plaintiffs also contend that the settlement is improper because1 rule, and that the proposed settlement payments reduce each contributing23 end, and the law is interpreted according to the plain meaning of its words."17 (2004). we generally review a district court's approval of a settlement4 members; aegis insurance services, inc.; liberty insurance underwrit-17 10 electric insurance limited; certain underwriters at lloyd's compris-19 14 defined, words will be interpreted as taking their ordinary, contemporary,13 6 property damage litigation18 property damage lawsuits resulting from the terrorist attacks. id. ("globe") provided security services for defendant-appellee american airlines,6 33, 1003, 2003, 1208, 1243, 0376; great lakes reinsurance (uk), plc;30 contributing aviation defendants' limits of liability.10 70 a.l.r.2d 416 § 2a (2008); 46a c.j.s. insurance § 2318 (2010).6 congress' pre-emptive intent.'" id. at 372 (quoting csx transp., inc. v.3 company, formerly axa cs insurance co.; coliseum reinsurance8 1 the settled actions to the wtcp plaintiffs. the court directed entry of final1 to the settlement did not want to face potential indemnification claims by other14 the settlement agreement and ordered all amounts paid pursuant to the14 aviation defendants that mediation efforts would be unproductive.20 3 defendants, the settling plaintiffs alleged subrogated and uninsured property11 7 york, new york, for plaintiffs-appellees.13 accords with the common understanding of "liability insurance," which9 in the following order."). had congress intended to create a "limited fund" for2 11, and 40 percent to flight 175. the 60/40 allocation resulted from each17 the aviation defendants. atsssa § 408(a)(1). we have repeatedly made clear12 § 408(a)); see also in re wtc disaster site, 414 f.3d at 373 (noting that a17 plain wording of the clause, which necessarily contains the best evidence of2 (citing duprey v. sec. mut. cas. co., 256 n.y.s.2d 987, 989 (n.y. app. div. 3d20 security services corporation; burns international services com-2 appellants.9 (internal quotation marks omitted)). the "meaning of a word [or phrase] cannot18 e.g., travelers indem. co. v. citgo petroleum corp., 166 f.3d 761, 764-65 "to limit the liability of entities that were likely to be sued for injuries suffered6 united states court of appeals1 world trade center llc, and 7 world trade company, l.p. (collectively "wtcp14 stv grp., inc. v. am. cont'l props., inc., 650 n.y.s.2d 204, 205 (n.y. app. div.2 in re: sept. 11 prop. damage litig. the wtcp plaintiffs next contend that this court in canada life9 957 f.2d at 1025; see also manual for complex litigation (fourth) § 13.143 underwriter at lloyd's, syndicate no. 1225; munich-american risk31 services, inc.; wall street realty capital, inc.; world trade farmers30 world trade center llc; 3 world trade center llc; 4 world trade22 wtcp plaintiffs argue that the district court's application of this "first-come,19 8 intervenors-appellants world trade center properties llc, 1 world21 the limits of huntleigh's liability insurance coverage by making payments7 york, inc.; qbe international insurance ltd.; certain underwriters at21 settlement agreement to be credited against the liability ceilings of the15 a. whether atsssa's liability limits create a "limited fund"5 canadian branch; axa art insurance corporation; paris re asia13 11 attacks. the agreement is expressly conditioned, in relevant part, upon the6 preserved the ability of any claimant to recover a damages award, requiring,11 omega eng'g, inc. v. omega, s.a., 432 f.3d 437, 443 (2d cir. 2005).8 respective liability limits. they contend that atsssa's limitation only applies6 contributing aviation defendants, the agreement further provides that1 here, the preemption of new york's "first-come, first served" settlement rule. we12 parties' abilities to protect their rights." id. at 59 (emphasis added). this20 inc. ("american") and screened the passengers aboard flight 11. huntleigh7 11 and united air lines flight 175 struck towers one and two of the world4 (collectively "aviation defendants") joint motion for orders approving their18 into their settlement agreement in good faith. we therefore conclude that the19 15 18 defendants, the terrorists would not have boarded flights 11 and 175, and the14 further complicate negotiations without reducing payment by the contributing7 the entire settlement amount of $1.2 billion. american and globe will pay 6014 intervenors-appellants world trade center properties llc, 1 world12 ment." david v. bauman, 196 n.y.s.2d 746, 748 (n.y. sup. ct. 1960). the18 commit an error of law in crediting the settlement payments against the9 and without substantial cost." id. instead, both parties independently15 august term 20104 a court invokes its equitable powers to enforce their agreement." in re masters,2 obligated or accountable"; or 2) "[a] financial or pecuniary obligation." black's5 10 world trade center llc, and 7 world trade company, l.p. (collectively "wtcp23 preempt new york state's "first-come, first-served" settlement rule, and that the15 the master calendar for september 11 property damage claims, 21 mc 101.1 insurance coverage maintained by the [aviation defendants].'" schneider v.15 10-3144-cv(con), 10-3145-cv(con), 10-3148-cv(con), 10-3153-cv(con),12 in atsssa. we also conclude that the district court did not abuse its discretion25 act in bad faith. see allstate ins. co. v. russell, 788 n.y.s.2d 401, 402 (n.y.15 atsssa's liability limits. we further conclude that the district court did not18 standing the statute's liability limitations. relying on our prior decision in4 huntleigh will pay the remaining 40 percent, for damages attributed to flight16 ("issues not sufficiently argued in the briefs are considered waived and normally martin, jr. ¶ 7. he has affirmed that there was no indication during the12 the wtcp plaintiffs finally argue that the district court erred in crediting4 in the collective 21 mc 101 action. it also granted intervenor status in each of20 defendants' insurers, from all claims relating to or arising out of the september5 26 these defendants' "liability."15 interests and liabilities of axa corporate solutions assurance12 defendants entered into their settlement in good faith.20 martin concluded that the two sides remained far apart. he proposed a3 concluded that congress intended to ensure that atsssa's liability limit10 excess & surplus lines insurance company; munich reinsurance37 pursuant to the settlement agreement.8 the contrary, various provisions of the statute concern the administration of, and13 "caps tort liability stemming from the attacks at `the limits of the liability14 concluding that all amounts paid pursuant to the settlement agreement are to9 under the "clearly erroneous" standard, and its legal conclusions de novo. see7 nothing in atsssa's text suggests that congress intended to create a10 10-2970-cv(l) ­ an assessment of responsibility that the wtcp plaintiffs themselves assert in19 and mutual release of claims.10 5 abuse its discretion in finding that the settling plaintiffs and aviation19 transportation safety and system stabilization act of 2001 ("atsssa"), pub.20 irap litig., 957 f.2d 1020, 1025 (2d cir. 1992); see also fed. r. civ. p.18 19 filing . . . a stipulation of dismissal signed by all parties who have appeared.").20 potentially liable entities from financially fatal liabilities").9 district court did not abuse its discretion in approving the settlement agreement.20 concerned about setting an undesirable precedent for future disasters if non-11 pacific pte. ltd., formerly known as axa re asia pacific pte. ltd.; paris14 re, successor to the interests and liabilities of compagnie generale15 [(debris removal actions)] applies, shall be paid solely from the following funds1 (codified as amended at 49 u.s.c. § 40101, note). it further found that5 inconsistent with or preempted by federal law." atsssa § 408(b)(2). in12 period of discovery, the settling plaintiffs and aviation defendants entered into16 of settlements in actions commenced under § 408(b)(1), state law settlement9 ers, inc.; national union insurance company of pittsburgh; nuclear18 2 southern district of new york (alvin k. hellerstein, district judge) granting25 company, formerly axa cs reinsurance co. us; axa versicherung ag;9 rules apply to this case. see id. § 408(b)(2). the district court therefore properly10 _____________________________________9 carrier airlines (which might in the future include american and united)12 8 used." strom v. goldman, sachs & co., 202 f.3d 138, 146 (2d cir. 1999)20 moot or without merit. for the foregoing reasons, the judgment of the district14 "principal component[ ]" of atsssa was "the limitation of the airlines' liability18 regardless of "whether the priority is by way of judgment or by way of settle-17 discount from the settling plaintiffs' total claimed damages of $4.4 billion, and5 5 17 12 partners 7244 gmbh; greater new york mutual insurance company;32 background1 stabilization act of 2001 ("atsssa"), pub. l. no. 107-42, 115 stat. 230 (2001)4 obligation] to a third party has been asserted." black's law dictionary 873 (9th11 1976); allstate ins. co. v. evans, 409 s.e.2d 273, 274 (ga. app. 1991); alford v. aktiengesellschaft; fireman's fund insurance company; mayore27 llp, new york, new york, for intervenors-8 goal of avoiding preclusive effects by any means other than requiring an2 collective 21 mc 101 action on july 23, 2010, and in each of the settled actions3 commonly provides for an insured's claim to arise "once the insured's [legal10 as the district court noted, under new york state law, an insurer has13 transportation system from potentially ruinous tort liability in the wake of the3 be determined in isolation, but must be drawn from the context in which it is19 approval of the settlement pursuant to new york state law was contrary to10 center llc; 7 world trade company, l.p.,23 defendants, and to constrain the manner in which settlements could be made,4 from the terrorist attacks of september 11, 2001, when american airlines flight3 insurance limited, formerly known as axa global risks (uk) ltd. and5 (collectively "aviation defendants") joint motion for orders approving their27 textile ins. co., 103 s.e.2d 8, 13 (n.c. 1958); bennett v. conrady, 180 kan. 485, for the second circuit2 settlement or judgment with respect to a claim or action to which paragraph (4)20 10-3133-cv(con), 10-3135-cv(con), 10-3136-cv(con), 10-3137-cv(con),10 the settlement payments against the contributing aviation defendants'5 securitas ab,5 be credited against the contributing aviation defendants' respective atsssa10 fora, and noted that such effects "might include adjudications having a18 contribution or indemnity," against the aviation defendants "shall not be in an10 6 defendants and insurers would increase plaintiffs' settlement demands and6 and 2791; assurances generales de france iart; assurances generales23 plaintiffs-appellees,34 the settling8 was higher than the last settlement offer by the aviation defendants.6 we have considered the parties' remaining arguments and find them to be13 damage and business interruption claims. the wtcp plaintiffs similarly12 served as mediator. the wtcp plaintiffs, however, did not participate after18 that "liability" refers to a "financial or pecuniary obligation" that can arise7 that the assessment of damages on an underlying claim-by-claim and defendant-13 app. div. 2d dep't 2004). this "`first in time, first in right' principle" applies16 wtcp plaintiffs' property would not have been destroyed. after a lengthy15 to which paragraph (4) applies." atsssa § 408(a)(5) (emphasis added). if2 in connection with the crashes"); canada life, 335 f.3d at 55 (finding that a7 9 3 those plaintiffs pursuing an atsssa cause of action against the aviation3 aviation defendants' insurers. further, they believed that the claims against8 axa cessions; axa corporate solutions services uk ltd. and axa10 successor to the interests and liabilities of axa reinsurance uk plc;6 proposed settlement payments pursuant to the settlement agreement properly16 cathi hession (richard williamson, on the6 and releasing all aviation defendants, as well as the contributing aviation4 first-served" settlement rule was contrary to, and therefore preempted by,20 their complaint.20 york's "first-come, first-served" settlement rule7 settlement for interests other than its own. id. ¶ 8. judge martin has also14 settlement amount was proposed by judge martin, represented a 72 percent4 however, that while the parties did spend a "substantial" amount of time10 the wtcp plaintiffs have presented no evidence of the bad faith7 to payments for "liability," and that the settlement payments here should not7 merit. in a section entitled "limitation on liability," atsssa specifies that8 exclusive forum. canada life therefore does not support the wtcp plaintiffs'3 discretion to settle whenever and with whomever it chooses, provided it does not14 adjudicated obligations, paragraph (5) would be rendered meaningless, and the4 killed in the terrorist attacks," to whom atsssa "ensur[ed] . . . adequate7 respective liability limits under atsssa. we hold that atsssa does not14 brief), flemming zulack williamson zauderer7 12 judicial system plays no role." in re masters mates & pilots pension plan &17 america, inc., formerly known as american re-insurance company;38 other defendants, specifying, for instance, the funds from which debris removal17 mediation process that any of the parties softened its position on a proper13 claims were to be paid, and the manner in which settlements or judgments were18 proper evaluation of the settlement and its relative fairness. under new york17 settling party deeming flight 11 responsible for the destruction of tower seven18 insurance company of greater new york; munich reinsurance com-33 we have noted, was to "preserve the continued viability of the united states air2 inc.; huntleigh usa corporation; icts international n.v.; the boeing39 eligibility regarding, a victim compensation fund for individuals willing to14 contributing aviation defendants. the court also concluded that payment by16 canada life assurance co. v. converium rückversicherung (deutschland) ag,5 obstacle to the accomplishment of congress's objectives in enacting atsssa.7 approve the settlement agreement11 the district court also ordered all amounts paid pursuant to the settlement1 docket nos. 10-2970-cv(l), 10-3128-cv(con), 10-3131-cv(con),9 stated that the settlement agreement was reached "only after extensive arms-1 335 f.3d 52 (2d cir. 2003), they assert that they are one of "those injured or6 plaintiffs-appellees' (collectively "settling plaintiffs") and defendants-appellees'26 moreover, because neither atsssa nor other federal law controls the approval8 liability "for all claims, whether for compensatory or punitive damages or for9 agreement to be credited to the contributing aviation defendants' respective2 l. no. 107-42, 115 stat. 230 (2001) (codified as amended at 49 u.s.c. § 40101,21 (quoting deal v. united states, 508 u.s. 129, 132 (1993)).21 gregory p. joseph (douglas j. pepe, on the11 plaintiffs") appeal from a final order of the united states district court for the15 necessary to draw into question the settlement in this case.3 attacks." schneider, 345 f.3d at 139 (internal quotation marks omitted); see also4 company; massachusetts port authority; burns international secu-40 plaintiffs who obtain "a settlement or judgment" with respect to "a claim or action1 exclusive venue provision. we never suggested there that atsssa pursued the1 note), does not preempt new york state's "first-come, first-served" settlement22 law, an insurer "has no duty to pay out claims ratably and/or consolidate them,"18 state law "stands as an obstacle to the accomplishment and execution of the full17 11 de france; allianz global risks us insurance company f/k/a allianz24 the wtcp plaintiffs next argue that the district court failed to make a16 4 settlement agreement and mutual release of claims. we hold that the air19 meanwhile, is defined as either: 1) "[t]he quality or state of being legally4 under a particular policy even if such settlement exhausts the policy proceeds."1 conclusion12 york state settlement rules was contrary to, and thus preempted by, atsssa.10 (5th cir. 1999); hartford cas. ins. co. v. dodd, 416 f. supp. 1216, 1219 (d. md. court consolidated these cases under four master case numbers, which separated 2, where, inter alia: 1) congress preempts state law in express terms (and within15 preempting new york's "first-come, first-served" settlement rule, is without7 liability ceilings under § 408(a)(1) of the air transportation safety and system3 prejudice the rights of any other party." id. ¶ 10. in addition, the $1.2 billion3 it releases all aviation defendants from liability when only four of them are2 in actions arising out of the september 11 terrorist attacks "shall be derived10 iii. whether the proposed settlement payments count towards the1 world trade center properties llc; 1 world trade center llc; 221 6 settlement agreement in good faith. accordingly, we affirm the district court's2 action on july 30, 2010, and from each settled action on august 9, 2010.5 16 intervenors-appellants,25 contested each other's claims both as to legal liability and damages," and that10 by-defendant basis "could not have been done in any reasonable amount of time14 5 35 in an opinion and order dated july 1, 2010, the district court approved13 s. ct. 3218, 3226 (2010) ("[i]n all statutory construction, unless otherwise12 the district court, is neither inconsistent with atsssa, nor does it stand as an6 9 the wtcp plaintiffs argue that the settlement is improper because it is7 ("united"), and screened the passengers aboard flight 175.9 reduce the contributing aviation defendants' remaining liability under17 they also contend that the court failed to make a proper evaluation of the11 33 10-3157-cv(con), 10-3159-cv(con), 10-3178-cv(con), 10-3180-cv(con)13 huntleigh's insurers exhausted the limits of huntleigh's liability insurance17 september 11" of the aviation defendants). a primary purpose of atsssa, as1 defendants-appellees.7 axa corporate solutions reassurance canadian branch; colisee re3 to be treated. see atsssa § 408(a)(5) ("payments to plaintiffs who obtain a19 atsssa against the aviation defendants are entitled to an equitable share. to12 in re wtc disaster site, 414 f.3d at 377 (observing that a "principal goal[ ]" was5 the settlement resolves 18 of the 21 property damage actions comprising11 the other aviation defendants were weaker than those against the two airlines9 20 rogere.podesta, debevoise and plimpton llp;15 41(a)(1)(a) ("[t]he plaintiff may dismiss an action without a court order by19 when interpreting a statute, we must give terms their ordinary, common10 8 clause, "`the task of statutory construction must in the first instance focus on the1 formerly known as axa re canadian branch and formerly known as2 20 consistency and efficiency in resolving the many expected actions arising from15 liability limits; and 3) finding that huntleigh exhausted its liability limits under11 trade center llc, 2 world trade center llc, 3 world trade center llc, 422 a mediation process in which retired u.s. district judge john s. martin, jr.,17 atsssa states in relevant part, "liability for all claims . . . shall not be in1 n.y.s.2d at 989. this has long been the rule across several jurisdictions.2 huntleigh will contribute, and thereby exhaust, its available insurance coverage.2 american airlines, inc.; amr corporation; united air lines, inc.; ual36 construing various provisions of atsssa, we have recognized that federal law13 plaintiffs-appellees' (collectively "settling plaintiffs") and defendants-appellees'17 fairness of the settlement agreement, and that the court erred in crediting the12 the policy." duprey, 256 n.y.s.2d at 989 (emphasis added).16 discussion7 length and good-faith negotiations among the parties and was not intended to2 "mediator's number" of $1.2 billion to settle all claims. the proposed amount,4 an amount greater than the limits of liability insurance coverage maintained by2 "typically, settlement rests solely in the discretion of the parties, and the16 percent of the settlement, for damages attributed to flight 11, while united and15 defendant-appellee huntleigh usa corp.'s ("huntleigh") insurers will exhaust6 dep't 1965)). an insurer may therefore "settle with less than all of the claimants21 -v.-27 corporation; us airways, inc.; us airways group, inc.; colgan air, inc.;37 8 "limited fund" from which plaintiffs bringing a federal cause of action under11 gesellschaft; woburn insurance, ltd.; great lakes reinsurance u.k.35 3 aviation defendants not released. finally, the contributing aviation defen-15 name; daniel d'aquila; floyd van name,32 in sum, we agree with the district court that the settling parties entered18 "general purpose" of atsssa was "to protect the airline industry and other8 will not be addressed on appeal."). the cases by subject matter. in re sept. 11 litig., 567 f. supp. 2d 611, 614 n.3 evaluation of the settlement agreement and its fairness. third, they contend12 on july 29, 2010. the wtcp plaintiffs timely appealed from the collective4 law dictionary 997 (9th ed. 2009). here, reading the term in context, it is clear6


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