NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3261 ___________

CITY OF ASBURY PARK, Appellant

v.

STAR INSURANCE COMPANY _______________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-17-cv-05059) District Judge: Honorable Brian R. Martinotti ____________________________________

Submitted under Third Circuit L.A.R. 34.1(a) on July 12, 2019

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges

(Opinion filed: August 4, 2020)

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Last year, we certified to the Supreme Court of New Jersey the question, raised by

this case, of “whether the ‘made-whole’ doctrine . . . applies to risk that has been

allocated to an insured, such as a self-insured retention or deductible.” City of Asbury

Park v. Star Ins. Co., No. 18-3261,

, at *1 (3d Cir. Aug. 12, 2019).

The Supreme Court accepted certification and has now answered the certified question

“in the negative.” City of Asbury Park v. Star Ins. Co., -- A.3d --, No. A-20-19,

, at *3 (N.J. June 29, 2020). The Court’s holding defeats Asbury Park’s primary

contention on appeal, which was that the made-whole doctrine overrides the contractual

language as to allocation of risk.

Asbury Park now argues that it is entitled to recovery, notwithstanding the

rejection of its made-whole doctrine argument, because the contractual language here did

not “unambiguously provide[] Star with all of the City’s rights to recovery against third-

party tortfeasors in the event that Star makes a payment under the Policy.” Asbury Park,

, at *10. We disagree. The contract provides that, “In the event of any

payment under this Insurance contract, the Insurer shall be subrogated to all of the

Insured’s rights of recovery.” App. 102 (emphasis added). Although Asbury Park

protests that there is some ambiguity to this provision, we can find none. Indeed, Asbury

Park’s new contentions are less arguments in favor of finding ambiguity in the contract

than attempts to relitigate the certified question in different terms. See, e.g., Appellant’s

Suppl. Br. 5 (encouraging us to follow Washington precedent holding that “an insured

2 should be ‘made-whole’ when [a self-insured retention] payment is made”). For that

reason, and in view of the holding of the Supreme Court of New Jersey, we will affirm.

3