SR INTERNATIONAL BUSINESS INSURANCE CO., LTD., Plaintiff-Counter-Defendant-Appellee, Copenhagen Reinsurance Co. Ltd., Employers Insurance Company of Wausau, Federal Insurance Co., Great Lakes Reinsurance PLC, Houston Casualty Co., Lexington Insurance Company, Certain Underwriters at Lloyd's, London Insurers, QBE International Insurance Limited, and Wurttembergische Versicherung AG, Counter-Defendant-Appellees, -v.- WORLD TRADE CENTER PROPERTIES, LLC, Silverstein Properties, Inc., Silverstein WTC Management Co., LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 4 World Trade Center LLC, 5 World Trade Center LLC, The Port Authority NY/NJ, Westfield WTC, LLC, Westfield Corporation, Inc., and Westfield America Inc., Defendants-Counter-Claimants-Appellants, UBS Warburg Real Estate Investments, Inc., Wells Fargo Bank Minnesota, N.A., As Trustee for the registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage-Backed Pass-Through Certificates, Series 2001 - WTC, and GMAC Commercial Mortgage Corporation, Defendants-Counter-Claimants, Gulf Insurance Company, Hartford Fire Insurance Company, St. Paul Fire and Marine Insurance Company, Swiss Reinsurance Co. UK Ltd., Tokio Marine and Fire Insurance Co., Allianz Insurance Co., Royal Indemnity Co., TIG Insurance Co., Zurich American Insurance Co., Industrial Risk Insurers, The Travelers Indemnity Company, and Twin City Fire Insurance Co., Counter-Defendants. SR International Business Insurance Co., Ltd., Plaintiff-Counter-Defendant, ALLIANZ INSURANCE CO., Gulf Insurance Company, Industrial Risk Insurers, Royal Indemnity Co., TIG Insurance Co., The Travelers Indemnity Company, Twin City Fire Insurance Co., and Zurich American Insurance Co., Counter-Defendants-Appellants, -v.- WORLD TRADE CENTER PROPERTIES, LLC, Silverstein Properties, Inc., Silverstein WTC Management Co., LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 4 World Trade Center LLC, 5 World Trade Center LLC, The Port Authority NY/NJ, Westfield WTC LLC, Westfield Corporation, Inc., and Westfield America, Inc., Defendants-Counter-Claimants-Appellees, UBS Warburg Real Estate Investments, Inc., Wells Fargo Bank Minnesota, N.A., As Trustee for the registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage-Backed Pass-Through Certificates, Series 2001 - WTC, and GMAC Commercial Mortgage Corporation, Defendants-Counter-Claimants, Copenhagen Reinsurance Co., Ltd., Employers Insurance Company of Wausau, Federal Insurance Co., Great Lakes Reinsurance PLC, Hartford Fire Insurance Company, Houston Casualty Co., Lexington Insurance Company, Certain Underwriters at Lloyd's, London, QBE International Insurance Limited, Swiss Reinsurance Co. UK Ltd., Tokio Marine and Fire Insurance Co., and Wurttembergische Versicherung AG, Counter-Defendants., 467 F.3d 107
Summary
At the time of the attacks, one insurer had issued a final policy and the other insurers had issued binders, which did not define "occurrence." During the first phase of trial, the jury determined that appellee insurance companies bound to a policy form that was prepared by the insureds' insurance broker. Under that form's definition of occurrence, the terrorist attacks constituted one occurrence. At the second phase of trial, the jury determined that appellant insurers, which did not bind to the insureds' broker's form, bound coverage to contracts that contemplated a two-occurrence treatment of the terrorist attacks. With respect to the insureds' appeal from the phase-one judgment, the court held that any error in excluding custom and usage evidence was harmless, and that the insurers' witnesses were properly permitted to testify as to which form they thought they had bound. With respect to the insurers' appeal from the phase-two judgment, the court held that the insureds' expert ...