09-4866-cv, 09-4268-cv N ipponkoa Insurance Com pany Limited v. N orfolk Southern R ailw ay C ompany Sompo Japan Insurance Company of A merica v. N orfolk Southern R ailw ay C ompany

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 SUMMARY ORDER 5 6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY 8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN 9 CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE 10 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION 11 “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY 12 PARTY NOT REPRESENTED BY COUNSEL. 13 14 At a stated term of the United States Court of Appeals for the Second Circuit, held at 15 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 16 York, on the 29 th day of September , two thousand ten. 17 18 PRESENT: PIERRE N. LEVAL, 19 GERARD E. LYNCH, 20 Circuit Judges, 21 EDWARD R. KORMAN, 22 District Judge.* 23 24 ------------------------------------------------------------------ 25 26 NIPPONKOA INSURANCE COMPANY, LTD., 27 Plaintiff-Appellee, 28 29 v. No. 09-4866-cv 30 31 NORFOLK SOUTHERN RAILWAY COMPANY, THE KANSAS CITY SOUTHERN 32 RAILWAY COMPANY, 33 Defendants-Appellants. 34 ------------------------------------------------------------------ 35 36 SOMPO JAPAN INSURANCE COMPANY OF AMERICA, SOMPO JAPAN 37 INSURANCE INC., 38 Plaintiffs-Appellees, 39 40 v. No. 09-4268-cv 41

* Honorable Edward R. Korman of the United States District Court for the Eastern District of New York, sitting by designation. 1 NORFOLK SOUTHERN RAILWAY COMPANY, NORFOLK SOUTHERN 2 CORPORATION, THE KANSAS CITY SOUTHERN RAILWAY COMPANY, 3 Defendants-Appellants.** 4 5 -------------------------------------------------------------------- 6 7 FOR APPELLANTS: JAMES R. LLOYD, III (Paul D. Keenan, on the brief), 8 Keenan Cohen & Howard P.C., Jenkintown, Pennsylvania. 9 10 FOR APPELLEES: DAVID T. MALOOF (Thomas M. Eagan, on the brief), 11 Maloof, Browne & Eagan LLC, Rye, New York. 12 13 Appeal from the United States District Court for the Southern District of New York

14 (Denny Chin, Judge).

15 The district court granted summary judgment to the plaintiffs in these two related cases

16 based on what was then binding Second Circuit precedent. The parties agree that the Supreme

17 Court, in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.,

,

(2010), has abrogated the precedent upon which the district court relied. See also Royal & Sun

19 Alliance Ins., PLC v. Ocean World Lines, Inc.,

(2d Cir. 2010). The plaintiffs-

20 appellees have raised further grounds they claim would support the judgment regardless of

21 Regal-Beloit, but concede that they did not present these grounds below because of the state

22 of the law at the time. The parties therefore have agreed that we should decline to reach these

23 issues so that the district court may have the first opportunity to address them on remand.

24 The judgment is VACATED and REMANDED for further proceedings. 25 26 FOR THE COURT: 27 Catherine O’Hagan Wolfe, Clerk of Court 28 29 30

** The Clerk of the Court is instructed to amend the official caption in these cases to conform to the listings of the parties above.

2