Erick Sandler is a partner at Day Pitney LLP in Hartford and is a member of its commercial litigation department and head of the firm’s appellate practice group. Attorney Sandler is a member of the CBA Appellate Advocacy Section Executive Com- mittee, Litigation Section Executive Certifying Committee, Federal Practice Section, and Young Lawyers Section.

John Cerreta is an as- State Law sociate at Day Pitney LLP in Hartford and is a member of its commer- cial litigation depart- Questions ment and the firm’s ap- pellate practice group. Attorney Cerreta is a member of the CBA Appellate Advocacy Section, to the Litigation Section, Federal Practice Connecticut Section, and Young Lawyers Section. Supreme Court

By Erick Sandler and John Cerreta

20 Connecticut Lawyer October 2013 Visit www.ctbar.org - Pullman rule.9 - necticut have occasionally denied certi- Aeral courts’ workload consists of decid- tion has also gained general acceptance as ing questions significant of state law. portion Diversity of the cases fed a tool for resolving At the all samemanner time, of unsettledcertifica particularly when the circumstances sug- make up fully 30 percent of the federal state law issues that arise in federal cas- gestfication that motions the moving on timelinessparty may grounds,be sand- civil docket,1 and even federal-question es.10 cases tend to feature at least one supple- may “save time, energy, and resources” for - When utilized properly, certification bagging the court19 by seeking certification mental state law claim or raise other state both state and federal courts, while pro- vorable decision. Even if no party moves for the first time upon receipt of an unfa law issues.2 Federal courts usually will viding an opportunity for courts to work not have binding state on the together toward a more “cooperative judi- certify a question on its own motion.20 for certification, a court may still elect to precise questions presented,3 so federal cial federalism.”11 courts must venture their best “Erie guess touches on interests in comity and federal- The thinking is that, because certification as to how” the state’s highest court might ism that extend beyond the parties, courts see Conn. rule if faced with the question.4 Connecticut, for its part, first enacted its Pub. Acts No. 85-111, and has since updat- 21 certification statute in 1985, where no party makes a request. While state law issues are clearly within ed the law to conform to the 1995 version may appropriately seek certification even the federal courts’ and com- II. The Factors That Federal petence,5 judges of both the second circuit of Law Act, see Conn. Gen. Stat. § 51- Courts Consider in Deciding of the12 Uniform Certification of Questions and the District of Connecticut have, at 199b. The statute authorizes the state Whether to Certify times, expressed discomfort at the pros- - pect of “attempting to predict how the tion “if the answer may be determinative tool in the right circumstances, but as Supreme Court to accept a certified ques Certification is undoubtedly a valuable Connecticut Supreme Court would rule” of an issue” pending before the certifying a practical matter courts considering whether to employ the device must take a on important questions of Connecticut court, and “if there is no controlling” Con- 13 discriminating approach. Every year, fed- law.6 In the correct circumstances, these necticut authority on point. The Practice eral courts in the second circuit “must… courts elect to forego the usual “Erie decide scores” of Connecticut law ques- guess” in favor of certifying the state law Book specifies that the question presented14 tions that have never before “reached the question to the Connecticut Supreme as will be determinative of the case.” The in a certification request “should be such Connecticut Supreme Court.”22 It simply Court. The purpose of this article is to is authorized to re- - - tion in all or even many of these cases. tion process for the Connecticut practitio- trial and appellate courts, as well as from ceive certified questions from all federal Thewould Connecticut be infeasible Supreme to order Court certifica is busy ner,provide including a basic the overview factors that of the local certifica federal “the highest court of another state” or of a 15 enough working through a full docket of courts consider in deciding whether to Native American tribe. cases from its own court system—bury- certify, and the process by which the Con- Although the Connecticut Supreme Court necticut Supreme Court accepts and de- can accept questions from a wide range of courts would only serve to undermine the courts, in practice, more than 90 percent basicing it goal in certified of saving questions “time, energy, from and federal re- cidesI. Background certified questions. on the Certification Process from the local federal courts—the Court procedures.23 Federal courts faced with of its certified-questions for the Second Circuit docket and come the sources” through the use of certification The practice of certifying important and questions of Connecticut law thus “resort District of Connecticut.16 As between the 24 unsettled questions of state law to a state lest certi- two, the District of Connecticut has sent a high court is now well established. More - to certification only sparingly,” than 50 years ago, the US Supreme Court burdens” of the federal courts “to those tions to the state Supreme Court. The sec- whosefication burdens become are a “device at least for as great.”shifting25 the slightly greater number of certified ques 7 ond circuit, however, is itself a frequent and direct alternative to the Pullman ab- A. The core considerations: clarity endorsed certification as a more efficient stention doctrine, which directs federal of existing law, importance, and the Court of Appeals.17 courts to abstain from deciding constitu- issuer of certified questions, especially to capacity to resolve the litigation. In seeking to identify the best candidates consider potentially determinative state either the second circuit or the District lawtional issues. claims8 so that state courts can first- ofA partyConnecticut wishing may to seekdo so certification by motion. in18 and the District of Connecticut tend to tion has come to occupy much of the “ter- There are no explicit time limits on such focusfor certification, on three core both factors: the second the clarity circuit ritory once dominated” In the years by since, the traditional certifica requests, but judges in the District of Con- of existing state law, the importance of

Connecticut Lawyer October 2013 21 the issue, and whether an answer to the 2. Importance. - state policy questions.”51 In addition, fed- - priately limited to “important” questions eral courts have also recognized that, if come of the pending federal case.26 that “Connecticut Certification has a strong is alsointerest” appro in the federal-question claims in a case have certified question may determine the out resolving through its own court system.39 been dismissed and the remaining supple- 1. Uncertainty under existing state law. This is a broad standard that may encom- Perhaps the most basic consideration, pass any number of substantive legal is- issues, the “better course” may be to allow sues, but one area that seems to come up thosemental issues claims to present“run their difficult orderly state course law is whether the question at issue is un- again and again in the cases is insurance in the state courts by declining to exercise settledfundamental under to currentany certification state law. request,27 This law. “Insurance is an important industry supplemental jurisdiction over them.”52 requires more than just the absence of in Connecticut,”40 and the “preeminence” on-point state precedent dictating the Another useful indicator of “importance” of the Connecticut Supreme Court “in the outcome. Federal courts have a duty to is whether the issue is “likely to recur.”53 - “interpret ambiguous state statutes” and Frequently recurring issues will necessar- nized.41 - decide questions of state , tionfield to of the insurance Connecticut law” Supreme is widely Court… recog “even in the absence of controlling state especially This compelling” makes the “case in for“insurance certifica authority.”28 - ily have a significant impact beyond the disputes.”42 And, at least in recent years, question arises, and they will often be ap- served for cases where the question is not particular litigation in which the certified Certification is properly re nearly half of the Connecticut Supreme just unresolved by precedent, but is also highest court.54 difficult to resolve. In other words, exist- propriate for certification to Connecticut’s questions have involved some issue re- 3. Effect on the outcome. In addition to latedCourt’s to decisionsinsurance inlaw. response43 to certified guidance” to permit a reliable prediction - undering precedent Erie.29 must “provide insufficient Insurance aside, local federal courts have being “unsettled and…significant,”55 a certi - outcome of the case. This requirement is fied question should also be crucial to the tive issues—from child protection,44 necessary to avoid wasteful litigation of warranted if the question at issue impli- toalso personal identified injury, numerous45 to commercial other substan pa- catesSo, for a example,“well developed” certification line ofmay Connecti not be- per46 - - cut precedent covering analogous circum- certified questions. When a federal court 30 - stances. certifies a question to the Connecticut56 Su necticut—that Supreme may beCourt. of sufficient Generally, impor if the oral argument must be completed, fol- warranted for questions that require little tance to warrant certification to the Con lowedpreme byCourt, the ainternal full round deliberations of briefing and Certification may also not be case involves , more than application of existing law to preparation of opinions within the Court. new facts.31 - the provision is “one part of a detailed ad- cation, the relevant law should be unclear ministrativethen certification scheme,” may orbe wherein order ambigu where- the litigants and the state judicial system. and inscrutable. To be A splita candidate between for Connecti certifi- All of this comes at significant cost to both ous statutory language makes it neces- It also can result in delay of the pending cut trial court decisions is a strong indica- litigation for a year-and-a-half or more.57 32 sary to assess the purposes and “public as 47 policy goals” underlying the statute. Tort The federal courts should avoid imposing and contract cases may also be good can- .tor that certification33 The fact may that be inConnecticut order, this work on the state judiciary merely to courtsis a conflict have offered between “no the guidance” courts of on other an get an answer to a question that is aca- important values in the evolution” of Con- issue one way or the other can also pro- demic, hypothetical, or not important to necticutdidates for common certification law.48 Questionsif they “implicate related 34 although the case. Rather, to justify the substantial to the state Constitution are of undoubted in that instance a consistent trend in out- - importance as well, and they too may war- of-jurisdictionvide grounds forcase certification, law may prompt the burdens and costs that certification im court not to certify if it feels “reasonably must at least have a meaningful effect on issue “provides an individual with more poses, the answer to the certified question certain that the Supreme Court of Con- “the outcome [of] the [federal] case.”58 protectionrant certification than” does where an theanalogous provision right at necticut would” follow the prevailing under the Federal Constitution.49 B. Other considerations that may view.35 counsel against certification. State law questions related to jurisdic- The same basic principle also applies to A question of state law that is unsettled, tion and procedure tend to be weaker Pullman-type cases, where important, and outcome-determinative - “a narrowing construction of state law” will normally be a good candidate for cer- - maycertification “avoid the in federal question.”36 - 59 Even in these cases, however, tioncandidates process for is “best certification. used for obtaining As the sec an cation is proper in these circumstances if ond circuit has explained, the certifica other factors may still counsel against a authoritative state law ruling that affects tification. the challenged statute is “readily suscep Certifi- the merits of a federal law suit.”50 Ques- tible to the proffered narrowing construc- tions relating to Connecticut procedural 1. Avoiding undue delay. As noted above, tion.”37 If, however, the statute is clear, certification order. law—for example, state “service of pro- then there is no reason to ask a “state cess” rules, see Fed. R. Civ. P. 4(e)(1)—are Connecticut Supreme Court may result court if it would care…to rewrite a stat- routinely litigated in federal courts and inlitigating substantial a certified delay; in question some cases, before these the ute” in order to save it.38 “implicate no complicated or unique[] “costs and delays” will be reason enough

22 Connecticut Lawyer October 2013 Visit www.ctbar.org 60 Even Judge Kravitz, however, departed the appellant and the defendant deemed from this preferred practice by certifying the appellee.77 The Supreme Court has Judge Stefan Underhill’s decision in Iz- to deny certification. a question in a case where the parties’ in- discretion to “reformulate” or restate the zarelli v. R.J. Reynolds Tobacco Co.,61 illus- ability to cooperate was overcome by the - trates the point. There, the court faced importance of the issue at hand and a lack priate,78 and the Court has, on occasion, the unsettled question of how to measure of a meaningful disagreement about the donecertified just questionsthat so as asto avoid it deems “deciding… appro “punitive damages in product liability underlying facts.68 broader question[s]” that were best left cases.” “In the usual course,” the court cer- for another day.79 Once the Court’s opin- III. The Connecticut Supreme ion is complete and released, the appel- of state law” to the Connecticut Supreme Court’s Responses to Certified late clerk transmits the Court’s response Court.tified “importan[t]”62 But in Izzarelli and, “undecidedthe case was issue al- Questions to the “certifying court,” and the litigation ready more than “ten years old,” and the - court had previously ruled on “other 80 All questions presented by way of certifi Supreme Court’s answers. CL questions of state law” that might eventu- to require a yes-or-no answer, whenever then continues on “with the benefit” of the possible.cation must69 Once be specific the Connecticut and phrased Supreme so as that history, the court determined that Notes ally have to “be certified on .” Given - the appellate clerk will notify the parties, Court receives the certification request, The authors would like to thank Tekhara who then have ten days from the date the Kimber, who was until recently a summer certification at “th[at] stage” of the63 litiga would result in needless “delay.” The apprentice at Day Pitney, for her invaluable tion was “unnecessary,” “inefficient,” and to [its] acceptance.”70 The Supreme Court research assistance. notice is mailed to “file” any “objections 1. Hon. Thomas F. Hogan, courtThe second denied circuitcertification. has also declined to Judicial Business certify questions based on concerns about request, and an initial acceptance is only of the U.S. Courts: 2012 Annual Report of “preliminary”has no obligation because to accept it does a certificationnot prevent the Director, Administrative Office of the delay. In Morenz v. Wilson-Coker, the court United States Courts, Judicial Business 2012, recognized that the defendant’s request U.S. District Courts, available at http:// if it should later appear to have been im- www.uscourts.gov/Statistics/JudicialBusi- the Court from “rejecting71 the certification nonetheless, the court declined to certify providently ordered.” As a practical mat- ness/2012/us-district-courts.aspx. 2. L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 anfor unsettledcertification state was law “not issue without because merit”; the - 72 F. Supp. 1419, 1422-23 (D. Conn. 1986) age and health of the “82 year[] old” plain- quests only on very rare occasions, and ter, the Court has rejected certification re (Cabranes, J.). tiff made “time” an “important consider- 3. Id. at 1422. 73 ation.”64 has been rejected for over a decade. 4. Mason Capital, Ltd. v. Kaman Corp., 2005 it appears that no certification request U.S. Dist. LEXIS 25900, at *4-5 (D. Conn. 2. Special considerations for district The Connecticut Supreme Court’s reti- Oct. 31, 2005); See generally Erie R.R. Co. v. courts. Finally, it is worth mentioning cence in this area may be motivated by a Tompkins, 304 U.S. 64 (1938). that, unlike an , a federal desire to maintain a spirit of “cooperative 5. Shields v. Murdoch, 891 F. Supp. 2d 567, judicial federalism.”74 Rejecting a federal 584-85 (S.D.N.Y. 2012). district court may face special challenges 6. Old Republic Nat’l Title Ins. Co. v. Bank of - E. Asia Ltd., 247 F. Supp. 2d 197, 200 (D. - Judge Alex Kozinski colorfully put it, kind Conn. 2003). court’s certification request is, as Circuit some.that make resort to the certification pro of like “telling us we’re out to lunch.”75 7. Railroad Comm’n of Texas v. Pullman Co., cess more difficult and more cumber And some second circuit judges have not 312 U.S. 496 (1941). 8. See Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, taken kindly to this sort of rejection. In submitted to the Connecticut Supreme 212 (1960). one famous incident from the late 80’s, 9. Arizonans for Official English v. Arizona, Procedurally, every certified question- Second Circuit Judge Irving Kaufman is 520 U.S. 43, 75 (1997); See, e.g., Sealed v. ing or stipulation” that sets “forth all said to have responded to a rejected cer- Sealed, 332 F.3d 51 (2d Cir. 2003). factsCourt relevant must be to accompaniedanswering the by questions a “find 10. Richard H. Fallon, et al., Hart & Wechsler’s 65 This requirement can create The Federal Courts and the Federal System Sol Wachtler of the New York Court of Ap- 1201 (5th ed. 2003); a substantial roadblock for the district tification request by calling Chief Judge See Lehman Bros. v. peals to let him know, “in most agitated Schein, 416 U.S. 386 (1974). judgecertified.” who wishes to certify a question fashion,…that the case would be decided 11. Lehman Bros., 416 U.S. at 390-91. in the early stages of litigation, when by the second circuit and that he didn’t 12. See also Ehrlich v. Town of Glastonbury, 348 the facts remain disputed and the court 76 F.3d 48, 59 n.15 (2d Cir. 2003) (discussing need the New York Court of Appeals.” statutory history). There is no record of any justice of the 13. Conn. Gen. Stat. § 51-199b(d). with this complication, some Connecti- Connecticut Supreme Court being on the 14. Conn. Prac. Book §§ 82-3, 82-1. cuthas federal made nojudges—led findings. by In the order late to Judge deal receiving end of an angry phone call from 15. Conn. Gen. Stat. § 51-199b(d). Mark Kravitz—adopted the practice of a disappointed circuit judge. 16. Since the year 2000, the Connecticut “certify[ing] questions to the Connecti- Supreme Court has written 23 published cut Supreme Court only when the par- After the Supreme Court accepts certi- Thirteen of those opinions respond to ties” agreed to “stipulate to the facts and questionsopinions responding from the District to certified of Connecticut: questions. 66 questions of law.” Other judges in other Ballou v. Law Offices Howard Lee Schiff PC, fication, the standard rules governing districts have adopted a similar rule.67 plaintiff in the certifying court deemed 304 Conn. 348 (2012); Rollins v. People’s briefing and argument apply, with the Connecticut Lawyer October 2013 23 Bank Corp., 283 Conn. 136 (2007); Enviro certify questions of New York state law to universal assent” in other jurisdictions). Express, Inc. v. AIU Ins. Co., 279 Conn. 194 the New York Court of Appeals.”). 34. Ryan v. Nat’l Union Fire Ins. Co., 692 F.3d (2006); DeOliveira v. Liberty Mut. Ins. Co., 18. E.g., Dorman v. Satti, 862 F.2d 432, 434 162, 169 (2d Cir. 2012). 273 Conn. 487 (2005); Jagger v. Mohawk (2d Cir. 1988); Ernst & Young Ltd. v. Quinn, 35. Pegasus Mgmt. Co. v. Lyssa, Inc., 995 F. Mt. Ski Area, Inc., 269 Conn. 672 (2004); 2010 U.S. Dist. LEXIS 2170, at *8-9 (D. Supp. 43, 44 (D. Mass. 1998). Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. Jan. 12, 2010). 36. Osterweil v. Bartlett, 706 F.3d 139, 144 (2d Conn. 120 (2003); Cimochowski v. Hartford 19. See Charts v. Nationwide Mut. Ins. Co., Cir. 2013); see Arizonans for Official English Pub. Schs., 261 Conn. 287 (2002); Bd. of 397 F. Supp. 2d 357, 365 & n.7 (D. Conn. v. Arizona, 520 U.S. 43, 75-76 (1997). Educ. v. St. Paul Fire & Marine Ins. Co., 37. Dorman v. Satti, 862 F.2d 432, 435 (2d Cir. 261 Conn. 37 (2002); Perodeau v. City of “rejected as untimely”). 1988) (internal quotation omitted). Hartford, 259 Conn. 729 (2002); Ramos 20. Arrowood2005) (post-verdict Indem. Co. certification v. King, 605 F.3drequest 62, 38. Houston v. Hill, 482 U.S. 451, 470-71 v. Town of Vernon, 254 Conn. 799 (2000); 79 (2d Cir. 2010) (“We are empowered (1987). Willoughby v. City of New Haven, 254 Conn. nostra sponte to certify a question of state 39. Parrot v. Guardian Life Ins. Co. of Am., 338 404 (2000); Gauger v. Frankl, 252 Conn. law to the highest court of the state whose F.3d 140, 144-45 (2d Cir. 2003) (internal 708 (2000); Driscoll v. Gen. Nutrition Corp., law applies.”); Sealed v. Sealed, 332 F.3d 51, quotation omitted). 252 Conn. 215 (2000). 59 n.10 (2d Cir. 2003) (same). 40. Fireman’s Fund Ins. Co. v. TD Banknorth Ins. 21. Sealed, 332 F.3d at 59 & n.10; see Elkins v. Agency, 644 F.3d 166,172 (2d Cir. 2012). Moreno, 435 U.S. 647, 662 n.16 (1978). 41. Israel v. State Farm Mut. Auto. Ins. Co., 239 second circuit: Fireman’s Fund Ins. Co. v. 22. L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F.3d 127, 135-36 (2d Cir. 2000); see Em- EightTD Banknorth respond Ins.to certifications Agency, Inc., 309from Conn. the F. Supp. 1419, 1422-23 (D. Conn. 1986). ployers’ Liab. Assurance Corp. v. Travelers 449 (2013); Gross v. Rell, 304 Conn. 234 23. Lehman Bros. v. Schein, 416 U.S. 386, 390- Ins. Co., 411 F.2d 862, 863 (2d Cir. 1969) (2012); Arrowood Indem. Co. v. King, 304 91(1974). (Connecticut Supreme Court is “particu- Conn. 179 (2012); Parrot v. Guardian Life 24. Amerex Group, Inc. v. Lexington Ins. Co., 678 larly expert” in insurance matters). Ins. Co. of Am., 273 Conn. 12 (2005); Teresa F.3d 193, 200 (2d Cir. 2012); L. Cohen & 42. Arrowood Indem. Co. v. King, 605 F.3d 62, T. v. Ragaglia, 272 Conn. 734 (2005); Co., 629 F. Supp. at 1423. 79-80 (2d Cir. 2010). Cweklinsky v. Mobil Chem. Co., 267 Conn. 25. Kidney v. Kolmar Labs., Inc., 808 F.2d 955, 43. See supra, at 2-3 & n.17. 210 (2004); Israel v. State Farm Mut. Auto. 957 (2d Cir. 1987). 44. Sealed, 332 F.3d at 59 (“there can be no Ins. Co., 259 Conn. 503 (2002); Vitanza v. 26. Georgitsi Realty LLC v. Penn-Star Ins. Co., doubt that Connecticut has a compelling Upjohn Co., 257 Conn. 365 (2001). 702 F.3d 152, 158 (2d Cir. 2013); Single interest in protecting child welfare”). Source, Inc. v. Cent. Reg’l Tourism Dist., 45. Jagger v. Mohawk Mt. Ski Area, Inc., 2002 - 2011 U.S. Dist. LEXIS 52784, at *12 (D. U.S. Dist. LEXIS 20948, at *2-3 (D. Conn. tions from other courts: Capstone Bldg. Mass. May 17, 2011). Sept. 24, 2002). TwoCorp. opinions v. Am. Motorists respond Ins. to Cocertified., 308 Conn. ques 27. Georgitsi Realty, 702 F.3d at 158; see Conn. 46. In re Boardwalk Marketplace Sec. Litig., 760 (2013) (Northern District of Ala- Gen. Stat. § 51-199b(d). 849 F.2d 89, 90 (2d Cir. 1988). bama); Weems v. Citigroup, Inc., 289 Conn. 28. Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir. 47. Sealed, 332 F.3d at 59. 769 (2008) (District of Massachusetts). 2003). 48. Fraser v. United States, 30 F.3d 18, 20 (2d 29. Freedman v. Am. Online, Inc., 412 F. Supp. Cir. 1994). 2d 174, 191 (D. Conn. 2005); see Empire 49. Freedman v. Am. Online, Inc., 412 F. Supp. 17. Throughquestions the to thefirst New eight York months Court of of 2013, Ap- Fire & Marine Ins. v. Lang, 655 F. Supp. 2d 2d 174, 189-90 (D. Conn. 2005). pealsthe second six times. circuit See has Exec. issued Plaza certified LLC v. 150, 155 (D. Conn. 2009) (“I have deter- 50. Bethphage Lutheran Serv., Inc. v. Weicker, Peerless Ins. Co., 717 F.3d 114 (2d Cir. 965 F.2d 1239, 1246-47 (2d Cir. 1992) 2013) (insurance policy interpretation to because decisions of the Connecticut ap- (emphasis added). the New York Court of Appeals); Caronia mined that certification is unnecessary 51. Davis v. Mara, 587 F. Supp. 2d 422, 427 (D. v. Philip Morris U.S., Inc., 715 F.3d 417 (2d for me to rule on the motions for summary Conn. 2008). Cir. 2013) (whether New York recognizes a judgment.”).pellate courts provide sufficient guidance 52. Lopez v. Smiley, 375 F. Supp. 2d 19, 26-27 freestanding tort claim for medical moni- 30. Cweklinsky v. Mobil Chem. Co., 364 F.3d 68, (D. Conn. 2005). toring); Cruz v. TD Bank, N.A., 711 F.3d 261 76-77 (2d Cir. 2004) (“Because the law in 53. Parrot, 338 F.3d at 145. (2d Cir. 2013) (rights of judgment debtors Connecticut governing implied contracts 54. Cweklinsky v. Mobil Chem. Co., 297 F.3d 154 under New York law); Doe v. Guthrie Clinic, - (2d Cir. 2002). Ltd., 710 F.3d 492 (2d Cir. 2013) (whether oped, we did not certify to the Connecticut 55. Wolf v. Yamin, 295 F.3d 303, 312 (2d Cir. disclosure of private medical information Supremeof employment Court theis sufficiently question whether well devel an 2002); Conn. Gen. Stat. § 51-199b(d); employee is bound by disclaimers in a su- Conn. Prac. Book § 82-3. duty under New York law); Osterweil perseding employment manual.”); Vidro v. 56. See Conn. Prac. Book § 82-6. v.gives Bartlett rise ,to 706 claim F.3d for 139 breach (2d Cir. of fiduciary2013) United States, 2013 U.S. App. LEXIS 12747, 57. Compare Fireman’s Fund Ins. Co. v. TD (statutory-interpretation issue antecedent at *9-10 (2d Cir. June 21, 2013) (declining Banknorth Ins. Agency, 644 F.3d 166 to Second Amendment challenge); Geor- to certify because court was able to “con- gitsi Realty LLC v. Penn-Star Ins. Co., 702 2011), with Fireman’s Fund Ins. Co. v. TD F.3d 152 (2d Cir. 2013) (insurance-policy courts would extend the state’s longstand- Banknorth(2d Cir. 2011) Ins. (question Agency, Inc certified., 309 Conn. April 449 interpretation under New York law). ingclude and with well-established” confidence that privileges Connecticut for (2013) (question answered July 2013); judicial and quasi-judicial testimony to Capstone Bldg. Corp. v. Am. Motorists Ins. The frequency with which the second testimony in grand jury proceedings). Co., No. 2:08-CV-00513-RDP (N.D. Ala.) 31. Keaney v. Lynch, 2006 U.S. Dist. LEXIS Court of Appeals may be due in part to the 59919, at *6-7 (D. Conn. Aug. 24, 2006). with Capstone Bldg. Corp. v. Am. Motorists factcircuit that certifies New York’s questions high courtto the does New not York 32. Blevio v. Aetna Cas. & Sur. Co., 39 F.3d 1, 2-3 Ins.(questions Co., 308 certified Conn. 760 September (2013) (answered 2011), (1st Cir. 1994). June 2013); compare Ballou v. Law Offices district courts. N.Y. Const. art. VI, § 3(b)(9); 33. Cnty. of Westchester v. Comm’r of Transp., of Howard Lee Schiff, P.C., 713 F. Supp. 2d See,accept e.g. certified, Nicholson questions v. Scoppetta from, 344federal F.3d 986 F.2d 624, 627 (2d Cir. 1993) (cer- 154, 168 (2d Cir. 2003) (“On appeal, we tifying question where there were “no May 2010), with Ballou v. Law Offices How- now have available to us an additional op- controlling in Connecticut,” ard79 (D. Lee Conn. Schiff, 2010) P.C., 304 (questions Conn. 348 certified (2012) tion not open to the District Court: We may and “no single position ha[d] commanded (answered April 2012); compare Gross v.

24 Connecticut Lawyer October 2013 Visit www.ctbar.org Rell, 585 F.3d 72 (2d Cir. 2009) (questions whether Connecticut law “precludes strict preme Court’s rejection of District of Mas- with Gross v. Rell, liability suits against a seller” of an un- Altman 304 Conn. 234 (2012) (answered April adulterated tobacco product. See Izzarelli v. Motion Water Sports, Inc., 722 F. Supp. 2012);certified compare October Arrowood 2009), Indem. Co. v. v. R.J. Reynolds Tobacco Co., 2013 U.S. App. 2dsachusetts’ 234, 245 certification (D. Conn. 2010) request); (discussing King, 605 F.3d 62 (2d Cir. 2010) (ques- LEXIS 18760, *2 (2d Cir. Sept. 10, 2013). a 1998 case in which the district court with Arrowood 64. Morenz v. Wilson-Coker, 415 F.3d 230, 237 was left to decide a state law issue on its Indem. Co. v. King, 304 Conn. 179 (2012) n.6 (2d Cir. 2004). own “faute de mieux” after the Supreme (answeredtion certified March May 2012);2010), See also N.Y. State 65. Conn. Prac. Book § 82-3(2). Court “revers[ed] its decision accepting… Bar Association, Certification of Questions 66. Pac. Emplrs. Ins. Co. v. Travelers Cas. & Sur. of State Law in the Second Circuit 6 (2007) Co., 888 F. Supp. 2d 271, 282 (D. Conn. useless” reference to an earlier precedent). (“for cases referred to the Connecticut 2012); Doninger v. Niehoff, 594 F. Supp. 2d 73. Wesleycertification” W. Horton with &a “delphic”Kenneth J. and Bartschi, “entirely Supreme Court…the average time between - Conn. Prac., Rules of Appellate Procedure tion would require that the parties agree § 82-1 (2012-2013 ed.) (“From 2001 to subsequent order conforming to the state on211, the 229 facts”). n.5 (D. Conn. 2009) (“certifica court’scertification decision by the is over second 18 months.”).circuit and 67. Remington Arms Co. v. Liberty Mut. Ins. Co., the Connecticut Supreme Court. Three 58. Green Party of Conn. v. Lenge, 2010 U.S. 796 F. Supp. 117, 119-20 (D. Del. 1992) were2011, withdrawn federal courts and certified the other 25 22 cases were to Dist. LEXIS 81898, at *6-7 (D. Conn. Aug. (refusing to certify question to Connecticut accepted by the Supreme Court.”). 11, 2010). Supreme Court because “the parties have 74. Lehman Bros., 416 U.S. at 390-91. 59. Georgitsi Realty, 702 F.3d at 158; Single not stipulated to the essential facts of this 75. Kremen v. Cohen, 325 F.3d 1035, 1052 (9th Source, Inc. v. Cent. Reg’l Tourism Dist., case, and the case awaits the resolution of Cir. 2003) (Kozinski, J., dissenting). 2011 U.S. Dist. LEXIS 52784, at *12 (D. these issues”) 76. Sol Wachtler, Federalism is Alive and Well Conn. May 17, 2011). 68. Ballou v. Law Offices of Howard Lee Schiff and Living in New York, 75 Alb. L. Rev. 659, 60. L. Cohen & Co., 629 F. Supp. at 1424. PC, 713 F. Supp. 2d 79, 80 (D. Conn. 2010). 665 (2011). 61. Izzarelli v. R.J. Reynolds Tobacco Co., 767 F. 69. Conn. Prac. Book. § 82-3. 77. Conn. Gen. Stat. 51-199b(i); Conn. Prac. Supp. 2d 324 (D. Conn. 2010). 70. Id. § 82-4. Book. §§ 82-5, 82-6. 62. Id. at 333 & n.10. 71. Id. 78. Conn. Prac. Book § 82-3. 63. Id. Judge Underhill’s suggestion that 72. See Conn. Performing Arts Found., Inc. v. 79. Fraser v. United States, 236 Conn. 625, 630 “other questions of state law” might need Brown, 801 F.2d 566, 568 (2d Cir. 1986) (1996) (“Common law prudence counsels (noting Supreme Court’s rejection of sec- that we should refrain from deciding the prescient. On appeal in Izzarelli, the Blevio broader question.”). to “be certified on appeal” proved to be v. Aetna Casualty & Sur. Co., 39 F.3d 1, 2-3 80. Arrowood Indem. Co. v. King, 699 F.3d 735, Connecticut Supreme Court the question (1stond circuit’sCir. 1994) certification (noting Connecticut request); Su- 737 (2d Cir. 2012). second circuit recently certified to the

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