In the United States Court of Appeals For the Second Circuit ______________

August Term, 2023

(Argued: September 22, 2023 Decided: January 23, 2024)

Docket Nos. 22-863, 22-1037 ______________

WILLIAM LOOMIS,

Plaintiff-Appellant-Cross-Appellee,

–v.–

ACE AMERICAN INSURANCE COMPANY,

Defendant-Appellee-Cross-Appellant.

______________

Before: BIANCO, ROBINSON, and NATHAN, Circuit Judges. ______________

This case requires us to determine whether 1) an insurer who fails to comply with New York laws requiring insurers to offer optional supplemental uninsured/underinsured motorist coverage to motor vehicle liability insurance policyholders can be liable to an injured insured for the underinsured motorist coverage that should have been offered, and 2) whether an insurer who issues an automobile liability insurance policy that provides coverage above a $3 million “retained limit” is liable to pay underinsured motorist benefits under Indiana law when an insured suffers damages in excess of the tortfeasor’s $50,000 policy limit and has no other underinsured motorist coverage to cover damages up to the $3 million retained limit.

We conclude that Loomis is not entitled to the relief that he seeks under New York law. Although insurers are required to offer supplemental uninsured/underinsured motorist coverage to insureds in New York, the coverage is optional. Even if the insurer violated New York law by failing to offer the supplemental coverage, Loomis’s claim seeking reformation of the insurance contract between Loomis’s employer and the insurer to include the optional supplemental coverage is not supported by New York law. Accordingly, we AFFIRM the district court’s grant of summary judgment as to Loomis’s claim under New York law.

With respect to his argument that Indiana law requires the insurer to provide underinsured motorist coverage, we cannot confidently predict how the Indiana Supreme Court will interpret the relevant statute, and no controlling precedent from Indiana’s highest court resolves the important questions that this case raises about the state’s underinsured motorist insurance regime. Therefore, we CERTIFY questions to the Indiana Supreme Court. ______________

MICHAEL J. LONGSTREET (Martha L. Berry, on the brief), Longstreet & Berry, LLP, Fayetteville, NY, for Plaintiff-Appellant-Cross-Appellee.

KURT M. MULLEN, Nixon Peabody LLP, Boston, MA (Michael B. de Leeuw, Tamar S. Wise, Cozen O’Connor, New York, NY, on the brief), for Defendant-Appellee-Cross-Appellant. ______________ ROBINSON, Circuit Judge:

Plaintiff William Loomis is a truck driver who was injured in a car accident in New York. He recovered some damages from the underinsured tortfeasor’s

2 insurer, and subsequently sought recovery from Defendant ACE American Insurance Company (“ACE”), his employer’s insurance company, for his remaining damages.

When ACE declined to pay, Loomis sued under New York law and Indiana law. He claimed that ACE failed to comply with both states’ laws requi