Certifying
State Law
Questions
to the
Connecticut
Supreme
Court
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 Committee, Litigation Section Executive
Committee, Federal Practice Section,
and Young Lawyers Section.
John Cerreta is an associate at Day Pitney
LLP in Hartford and is a
member of its commercial litigation department and the firm’s appellate practice group.
Attorney Cerreta is a member of the
CBA Appellate Advocacy Section,
Litigation Section, Federal Practice
Section, and Young Lawyers Section.
By Erick Sandler and John Cerreta
20
Connecticut Lawyer October 2013
Visit www.ctbar.org
Reprinted with permission of the Connecticut Bar Association and the CT Bar Institute, Inc.
from Volume 24, Number 3. Copyright the Connecticut Lawyer.
A
significant portion of the federal courts’ workload consists of deciding questions of state law. Diversity cases
make up fully 30 percent of the federal
civil docket,1 and even federal-question
cases tend to feature at least one supplemental state law claim or raise other state
law issues.2 Federal courts usually will
not have binding state precedent on the
precise questions presented,3 so federal
courts must venture their best “Erie guess
as to how” the state’s highest court might
rule if faced with the question.4
While state law issues are clearly within
the federal courts’ jurisdiction and competence,5 judges of both the second circuit
and the District of Connecticut have, at
times, expressed discomfort at the prospect of “attempting to predict how the
Connecticut Supreme Court would rule”
on important questions of Connecticut
law.6 In the correct circumstances, these
courts elect to forego the usual “Erie
guess” in favor of certifying the state law
question to the Connecticut Supreme
Court. The purpose of this article is to
provide a basic overview of the certification process for the Connecticut practitioner, including the factors that local federal
courts consider in deciding whether to
certify, and the process by which the Connecticut Supreme Court accepts and decides certified questions.
I. Background on the
Certification Process
The practice of certifying important and
unsettled questions of state law to a state
high court is now well established. More
than 50 years ago, the US Supreme Court
endorsed certification as a more efficient
and direct alternative to the Pullman7 abstention doctrine, which directs federal
courts to abstain from deciding constitutional claims so that state courts can first
consider potentially determinative state
law issues.8 In the years since, certification has come to occupy much of the “territory once dominated” by the traditional
Pullman rule.9 At the same time, certification has also gained general acceptance as
a tool for resolving all manner of unsettled
state law issues that arise in federal cases.10 When utilized properly, certification
may “save time, energy, and resources” for
both state and federal courts, while providing an opportunity for courts to work
together toward a more “cooperative judicial federalism.”11
Connecticut, for its part, first enacted its
certification statute in 1985, see Conn.
Pub. Acts No. 85-111, and has since updated the law to conform to the 1995 version
of the Uniform Certification of Questions
of Law Act, see Conn. Gen. Stat. § 51199b.12 The statute authorizes the state
Supreme Court to accept a certified question “if the answer may be determinative
of an issue” pending before the certifying
court, and “if there is no controlling” Connecticut authority on point.13 The Practice
Book specifies that the question presented
in a certification request “should be such
as will be determinative of the case.”14 The
state Supreme Court is authorized to receive certified questions from all federal
trial and appellate courts, as well as from
“the highest court of another state” or of a
Native American tribe.15
Although the Connecticut Supreme Court
can accept questions from a wide range of
courts, in practice, more than 90 percent
of its certified-questions docket come
from the local federal courts—the Court
of Appeals for the Second Circuit and the
District of Connecticut.16 As between the
two, the District of Connecticut has sent a
slightly greater number of certified questions to the state Supreme Court. The second circuit, however, is itself a frequent
issuer of certified questions, especially to
the New York Court of Appeals.17
A party wishing to seek certification in
either the second circuit or the District
of Connecticut may do so by motion.18
There are no explicit time limits on such
requests, but judges in the District of Con-
necticut have occasionally denied certification motions on timeliness grounds,
particularly when the circumstances suggest that the moving party may be sandbagging the court by seeking certification
for the first time upon receipt of an unfavorable decision.19 Even if no party moves
for certification, a court may still elect to
certify a question on its own motion.20
The thinking is that, because certification
touches on interests in comity and federalism that extend beyond the parties, courts
may appropriately seek certification even
where no party makes a request.21
II. The Factors That Federal
Courts Consider in Deciding
Whether to Certify
Certification is undoubtedly a valuable
tool in the right circumstances, but as
a practical matter courts considering
whether to employ the device must take a
discriminating approach. Every year, federal courts in the second circuit “must…
decide scores” of Connecticut law questions that have never before “reached the
Connecticut Supreme Court.”22 It simply
would be infeasible to order certification in all or even many of these cases.
The Connecticut Supreme Court is busy
enough working through a full docket of
cases from its own court system—burying it in certified questions from federal
courts would only serve to undermine the
basic goal of saving “time, energy, and resources” through the use of certification
procedures.23 Federal courts faced with
questions of Connecticut law thus “resort
to certification only sparingly,”24 lest certification become a “device for shifting the
burdens” of the federal courts “to those
whose burdens are at least as great.”25
A. The core considerations: clarity
of existing law, importance, and
capacity to resolve the litigation.
In seeking to identify the best candidates
for certification, both the second circuit
and the District of Connecticut tend to
focus on three core factors: the clarity
of existing state law, the importance of
Connecticut Lawyer
October 2013 21
the issue, and whether an answer to the
certified question may determine the outcome of the pending federal case.26
1. Uncertainty under existing state law.
Perhaps the most basic consideration,
fundamental to any certification request,
is whether the question at issue is unsettled under current state law.27 This
requires more than just the absence of
on-point state precedent dictating the
outcome. Federal courts have a duty to
“interpret ambiguous state statutes” and
decide questions of state common law,
“even in the absence of controlling state
authority.”28 Certification is properly reserved for cases where the question is not
just unresolved by precedent, but is also
difficult to resolve. In other words, existing precedent must “provide insufficient
guidance” to permit a reliable prediction
under Erie.29
So, for example, certification may not be
warranted if the question at issue implicates a “well developed” line of Connecticut precedent covering analogous circumstances.30 Certification may also not be
warranted for questions that require little
more than application of existing law to
new facts.31 To be a candidate for certification, the relevant law should be unclear
and inscrutable. A split between Connecticut trial court decisions is a strong indicator that certification may be in order,32 as
is a conflict between the courts of other
jurisdictions.33 The fact that Connecticut
courts have offered “no guidance” on an
issue one way or the other can also provide grounds for certification,34 although
in that instance a consistent trend in outof-jurisdiction case law may prompt the
court not to certify if it feels “reasonably
certain that the Supreme Court of Connecticut would” follow the prevailing
view.35
The same basic principle also applies to
certification in Pullman-type cases, where
“a narrowing construction of state law”
may “avoid the federal question.”36 Certification is proper in these circumstances if
the challenged statute is “readily susceptible to the proffered narrowing construction.”37 If, however, the statute is clear,
then there is no reason to ask a “state
court if it would care…to rewrite a statute” in order to save it.38
22 Connecticut Lawyer
October 2013
2. Importance. Certification is also appropriately limited to “important” questions
that “Connecticut has a strong interest” in
resolving through its own court system.39
This is a broad standard that may encompass any number of substantive legal issues, but one area that seems to come up
again and again in the cases is insurance
law. “Insurance is an important industry
in Connecticut,”40 and the “preeminence”
of the Connecticut Supreme Court “in the
field of insurance law” is widely recognized.41 This makes the “case for certification to the Connecticut Supreme Court…
especially compelling” in “insurance
disputes.”42 And, at least in recent years,
nearly half of the Connecticut Supreme
Court’s decisions in response to certified
questions have involved some issue related to insurance law.43
Insurance aside, local federal courts have
also identified numerous other substantive issues—from child protection,44
to personal injury,45 to commercial paper46—that may be of sufficient importance to warrant certification to the Connecticut Supreme Court. Generally, if the
case involves statutory interpretation,
then certification may be in order where
the provision is “one part of a detailed administrative scheme,” or where ambiguous statutory language makes it necessary to assess the purposes and “public
policy goals” underlying the statute.47 Tort
and contract cases may also be good candidates for certification if they “implicate
important values in the evolution” of Connecticut common law.48 Questions related
to the state Constitution are of undoubted
importance as well, and they too may warrant certification where the provision at
issue “provides an individual with more
protection than” does an analogous right
under the Federal Constitution.49
State law questions related to jurisdiction and procedure tend to be weaker
candidates for certification. As the second circuit has explained, the certification process is “best used for obtaining an
authoritative state law ruling that affects
the merits of a federal law suit.”50 Questions relating to Connecticut procedural
law—for example, state “service of process” rules, see Fed. R. Civ. P. 4(e)(1)—are
routinely litigated in federal courts and
“implicate no complicated or unique[]
state policy questions.”51 In addition, federal courts have also recognized that, if
the federal-question claims in a case have
been dismissed and the remaining supplemental claims present difficult state law
issues, the “better course” may be to allow
those issues to “run their orderly course
in the state courts by declining to exercise
supplemental jurisdiction over them.”52
Another useful indicator of “importance”
is whether the issue is “likely to recur.”53
Frequently recurring issues will necessarily have a significant impact beyond the
particular litigation in which the certified
question arises, and they will often be appropriate for certification to Connecticut’s
highest court.54
3. Effect on the outcome. In addition to
being “unsettled and…significant,” a certified question should also be crucial to the
outcome of the case.55 This requirement is
necessary to avoid wasteful litigation of
certified questions. When a federal court
certifies a question to the Connecticut Supreme Court, a full round of briefing and
oral argument must be completed,56 followed by the internal deliberations and
preparation of opinions within the Court.
All of this comes at significant cost to both
the litigants and the state judicial system.
It also can result in delay of the pending
litigation for a year-and-a-half or more.57
The federal courts should avoid imposing
this work on the state judiciary merely to
get an answer to a question that is academic, hypothetical, or not important to
the case. Rather, to justify the substantial
burdens and costs that certification imposes, the answer to the certified question
must at least have a meaningful effect on
“the outcome [of] the [federal] case.”58
B. Other considerations that may
counsel against certification.
A question of state law that is unsettled,
important, and outcome-determinative
will normally be a good candidate for certification.59 Even in these cases, however,
other factors may still counsel against a
certification order.
1. Avoiding undue delay. As noted above,
litigating a certified question before the
Connecticut Supreme Court may result
in substantial delay; in some cases, these
“costs and delays” will be reason enough
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to deny certification.60
Judge Stefan Underhill’s decision in Izzarelli v. R.J. Reynolds Tobacco Co.,61 illustrates the point. There, the court faced
the unsettled question of how to measure
“punitive damages in product liability
cases.” “In the usual course,” the court certified “importan[t]” and “undecided issue
of state law” to the Connecticut Supreme
Court.62 But in Izzarelli, the case was already more than “ten years old,” and the
court had previously ruled on “other
questions of state law” that might eventually have to “be certified on appeal.” Given
that history, the court determined that
certification at “th[at] stage” of the litigation was “unnecessary,” “inefficient,” and
would result in needless “delay.”63 The
court denied certification.
Even Judge Kravitz, however, departed
from this preferred practice by certifying
a question in a case where the parties’ inability to cooperate was overcome by the
importance of the issue at hand and a lack
of a meaningful disagreement about the
underlying facts.68
III. The Connecticut Supreme
Court’s Responses to Certified
Questions
The second circuit has also declined to
certify questions based on concerns about
delay. In Morenz v. Wilson-Coker, the court
recognized that the defendant’s request
for certification was “not without merit”;
nonetheless, the court declined to certify
an unsettled state law issue because the
age and health of the “82 year[] old” plaintiff made “time” an “important consideration.”64
All questions presented by way of certification must be specific and phrased so as
to require a yes-or-no answer, whenever
possible.69 Once the Connecticut Supreme
Court receives the certification request,
the appellate clerk will notify the parties,
who then have ten days from the date the
notice is mailed to “file” any “objections
to [its] acceptance.”70 The Supreme Court
has no obligation to accept a certification
request, and an initial acceptance is only
“preliminary” because it does not prevent
the Court from “rejecting the certification
if it should later appear to have been improvidently ordered.”71 As a practical matter, the Court has rejected certification requests only on very rare occasions,72 and
it appears that no certification request
has been rejected for over a decade.73
Procedurally, every certified question
submitted to the Connecticut Supreme
Court must be accompanied by a “finding or stipulation” that sets “forth all
facts relevant to answering the questions
certified.”65 This requirement can create
a substantial roadblock for the district
judge who wishes to certify a question
in the early stages of litigation, when
the facts remain disputed and the court
has made no findings. In order to deal
with this complication, some Connecticut federal judges—led by the late Judge
Mark Kravitz—adopted the practice of
“certify[ing] questions to the Connecticut Supreme Court only when the parties” agreed to “stipulate to the facts and
questions of law.”66 Other judges in other
districts have adopted a similar rule.67
After the Supreme Court accepts certification, the standard rules governing
briefing and argument apply, with the
plaintiff in the certifying court deemed
2. Special considerations for district
courts. Finally, it is worth mentioning
that, unlike an appellate court, a federal
district court may face special challenges
that make resort to the certification process more difficult and more cumbersome.
The Connecticut Supreme Court’s reticence in this area may be motivated by a
desire to maintain a spirit of “cooperative
judicial federalism.”74 Rejecting a federal
court’s certification request is, as Circuit
Judge Alex Kozinski colorfully put it, kind
of like “telling us we’re out to lunch.”75
And some second circuit judges have not
taken kindly to this sort of rejection. In
one famous incident from the late 80’s,
Second Circuit Judge Irving Kaufman is
said to have responded to a rejected certification request by calling Chief Judge
Sol Wachtler of the New York Court of Appeals to let him know, “in most agitated
fashion,…that the case would be decided
by the second circuit and that he didn’t
need the New York Court of Appeals.”76
There is no record of any justice of the
Connecticut Supreme Court being on the
receiving end of an angry phone call from
a disappointed circuit judge.
the appellant and the defendant deemed
the appellee.77 The Supreme Court has
discretion to “reformulate” or restate the
certified questions as it deems appropriate,78 and the Court has, on occasion,
done just that so as to avoid “deciding…
broader question[s]” that were best left
for another day.79 Once the Court’s opinion is complete and released, the appellate clerk transmits the Court’s response
to the “certifying court,” and the litigation
then continues on “with the benefit” of the
Supreme Court’s answers.80 CL
Notes
The authors would like to thank Tekhara
Kimber, who was until recently a summer
apprentice at Day Pitney, for her invaluable
research assistance.
1. Hon. Thomas F. Hogan, Judicial Business
of the U.S. Courts: 2012 Annual Report of
the Director, Administrative Office of the
United States Courts, Judicial Business 2012,
U.S. District Courts, available at http://
www.uscourts.gov/Statistics/JudicialBusiness/2012/us-district-courts.aspx.
2. L. Cohen & Co. v. Dun & Bradstreet, Inc., 629
F. Supp. 1419, 1422-23 (D. Conn. 1986)
(Cabranes, J.).
3. Id. at 1422.
4. Mason Capital, Ltd. v. Kaman Corp., 2005
U.S. Dist. LEXIS 25900, at *4-5 (D. Conn.
Oct. 31, 2005); See generally Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938).
5. Shields v. Murdoch, 891 F. Supp. 2d 567,
584-85 (S.D.N.Y. 2012).
6. Old Republic Nat’l Title Ins. Co. v. Bank of
E. Asia Ltd., 247 F. Supp. 2d 197, 200 (D.
Conn. 2003).
7. Railroad Comm’n of Texas v. Pullman Co.,
312 U.S. 496 (1941).
8. See Clay v. Sun Ins. Office, Ltd., 363 U.S. 207,
212 (1960).
9. Arizonans for Official English v. Arizona,
520 U.S. 43, 75 (1997); See, e.g., Sealed v.
Sealed, 332 F.3d 51 (2d Cir. 2003).
10.Richard H. Fallon, et al., Hart & Wechsler’s
The Federal Courts and the Federal System
1201 (5th ed. 2003); See Lehman Bros. v.
Schein, 416 U.S. 386 (1974).
11.Lehman Bros., 416 U.S. at 390-91.
12.See also Ehrlich v. Town of Glastonbury, 348
F.3d 48, 59 n.15 (2d Cir. 2003) (discussing
statutory history).
13.Conn. Gen. Stat. § 51-199b(d).
14.Conn. Prac. Book §§ 82-3, 82-1.
15.Conn. Gen. Stat. § 51-199b(d).
16.Since the year 2000, the Connecticut
Supreme Court has written 23 published
opinions responding to certified questions.
Thirteen of those opinions respond to
questions from the District of Connecticut:
Ballou v. Law Offices Howard Lee Schiff PC,
304 Conn. 348 (2012); Rollins v. People’s
Connecticut Lawyer
October 2013 23
Bank Corp., 283 Conn. 136 (2007); Enviro
Express, Inc. v. AIU Ins. Co., 279 Conn. 194
(2006); DeOliveira v. Liberty Mut. Ins. Co.,
273 Conn. 487 (2005); Jagger v. Mohawk
Mt. Ski Area, Inc., 269 Conn. 672 (2004);
Gerrity v. R.J. Reynolds Tobacco Co., 263
Conn. 120 (2003); Cimochowski v. Hartford
Pub. Schs., 261 Conn. 287 (2002); Bd. of
Educ. v. St. Paul Fire & Marine Ins. Co.,
261 Conn. 37 (2002); Perodeau v. City of
Hartford, 259 Conn. 729 (2002); Ramos
v. Town of Vernon, 254 Conn. 799 (2000);
Willoughby v. City of New Haven, 254 Conn.
404 (2000); Gauger v. Frankl, 252 Conn.
708 (2000); Driscoll v. Gen. Nutrition Corp.,
252 Conn. 215 (2000).
Eight respond to certifications from the
second circuit: Fireman’s Fund Ins. Co. v.
TD Banknorth Ins. Agency, Inc., 309 Conn.
449 (2013); Gross v. Rell, 304 Conn. 234
(2012); Arrowood Indem. Co. v. King, 304
Conn. 179 (2012); Parrot v. Guardian Life
Ins. Co. of Am., 273 Conn. 12 (2005); Teresa
T. v. Ragaglia, 272 Conn. 734 (2005);
Cweklinsky v. Mobil Chem. Co., 267 Conn.
210 (2004); Israel v. State Farm Mut. Auto.
Ins. Co., 259 Conn. 503 (2002); Vitanza v.
Upjohn Co., 257 Conn. 365 (2001).
Two opinions respond to certified questions from other courts: Capstone Bldg.
Corp. v. Am. Motorists Ins. Co., 308 Conn.
760 (2013) (Northern District of Alabama); Weems v. Citigroup, Inc., 289 Conn.
769 (2008) (District of Massachusetts).
17.Through the first eight months of 2013,
the second circuit has issued certified
questions to the New York Court of Appeals six times. See Exec. Plaza LLC v.
Peerless Ins. Co., 717 F.3d 114 (2d Cir.
2013) (insurance policy interpretation to
the New York Court of Appeals); Caronia
v. Philip Morris U.S., Inc., 715 F.3d 417 (2d
Cir. 2013) (whether New York recognizes a
freestanding tort claim for medical monitoring); Cruz v. TD Bank, N.A., 711 F.3d 261
(2d Cir. 2013) (rights of judgment debtors
under New York law); Doe v. Guthrie Clinic,
Ltd., 710 F.3d 492 (2d Cir. 2013) (whether
disclosure of private medical information
gives rise to claim for breach of fiduciary
duty under New York law); Osterweil
v. Bartlett, 706 F.3d 139 (2d Cir. 2013)
(statutory-interpretation issue antecedent
to Second Amendment challenge); Georgitsi Realty LLC v. Penn-Star Ins. Co., 702
F.3d 152 (2d Cir. 2013) (insurance-policy
interpretation under New York law).
24
The frequency with which the second
circuit certifies questions to the New York
Court of Appeals may be due in part to the
fact that New York’s high court does not
accept certified questions from federal
district courts. N.Y. Const. art. VI, § 3(b)(9);
See, e.g., Nicholson v. Scoppetta, 344 F.3d
154, 168 (2d Cir. 2003) (“On appeal, we
now have available to us an additional option not open to the District Court: We may
Connecticut Lawyer October 2013
certify questions of New York state law to
the New York Court of Appeals.”).
18.E.g., Dorman v. Satti, 862 F.2d 432, 434
(2d Cir. 1988); Ernst & Young Ltd. v. Quinn,
2010 U.S. Dist. LEXIS 2170, at *8-9 (D.
Conn. Jan. 12, 2010).
19.See Charts v. Nationwide Mut. Ins. Co.,
397 F. Supp. 2d 357, 365 & n.7 (D. Conn.
2005) (post-verdict certification request
“rejected as untimely”).
20.Arrowood Indem. Co. v. King, 605 F.3d 62,
79 (2d Cir. 2010) (“We are empowered
nostra sponte to certify a question of state
law to the highest court of the state whose
law applies.”); Sealed v. Sealed, 332 F.3d 51,
59 n.10 (2d Cir. 2003) (same).
21.Sealed, 332 F.3d at 59 & n.10; see Elkins v.
Moreno, 435 U.S. 647, 662 n.16 (1978).
22.L. Cohen & Co. v. Dun & Bradstreet, Inc., 629
F. Supp. 1419, 1422-23 (D. Conn. 1986).
23. Lehman Bros. v. Schein, 416 U.S. 386, 39091(1974).
24.Amerex Group, Inc. v. Lexington Ins. Co., 678
F.3d 193, 200 (2d Cir. 2012); L. Cohen &
Co., 629 F. Supp. at 1423.
25.Kidney v. Kolmar Labs., Inc., 808 F.2d 955,
957 (2d Cir. 1987).
26.Georgitsi Realty LLC v. Penn-Star Ins. Co.,
702 F.3d 152, 158 (2d Cir. 2013); Single
Source, Inc. v. Cent. Reg’l Tourism Dist.,
2011 U.S. Dist. LEXIS 52784, at *12 (D.
Mass. May 17, 2011).
27.Georgitsi Realty, 702 F.3d at 158; see Conn.
Gen. Stat. § 51-199b(d).
28.Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir.
2003).
29.Freedman v. Am. Online, Inc., 412 F. Supp.
2d 174, 191 (D. Conn. 2005); see Empire
Fire & Marine Ins. v. Lang, 655 F. Supp. 2d
150, 155 (D. Conn. 2009) (“I have determined that certification is unnecessary
because decisions of the Connecticut appellate courts provide sufficient guidance
for me to rule on the motions for summary
judgment.”).
30.Cweklinsky v. Mobil Chem. Co., 364 F.3d 68,
76-77 (2d Cir. 2004) (“Because the law in
Connecticut governing implied contracts
of employment is sufficiently well developed, we did not certify to the Connecticut
Supreme Court the question whether an
employee is bound by disclaimers in a superseding employment manual.”); Vidro v.
United States, 2013 U.S. App. LEXIS 12747,
at *9-10 (2d Cir. June 21, 2013) (declining
to certify because court was able to “conclude with confidence that Connecticut
courts would extend the state’s longstanding and well-established” privileges for
judicial and quasi-judicial testimony to
testimony in grand jury proceedings).
31.Keaney v. Lynch, 2006 U.S. Dist. LEXIS
59919, at *6-7 (D. Conn. Aug. 24, 2006).
32.Blevio v. Aetna Cas. & Sur. Co., 39 F.3d 1, 2-3
(1st Cir. 1994).
33.Cnty. of Westchester v. Comm’r of Transp.,
986 F.2d 624, 627 (2d Cir. 1993) (certifying question where there were “no
controlling precedents in Connecticut,”
and “no single position ha[d] commanded
universal assent” in other jurisdictions).
34.Ryan v. Nat’l Union Fire Ins. Co., 692 F.3d
162, 169 (2d Cir. 2012).
35.Pegasus Mgmt. Co. v. Lyssa, Inc., 995 F.
Supp. 43, 44 (D. Mass. 1998).
36.Osterweil v. Bartlett, 706 F.3d 139, 144 (2d
Cir. 2013); see Arizonans for Official English
v. Arizona, 520 U.S. 43, 75-76 (1997).
37.Dorman v. Satti, 862 F.2d 432, 435 (2d Cir.
1988) (internal quotation omitted).
38.Houston v. Hill, 482 U.S. 451, 470-71
(1987).
39.Parrot v. Guardian Life Ins. Co. of Am., 338
F.3d 140, 144-45 (2d Cir. 2003) (internal
quotation omitted).
40.Fireman’s Fund Ins. Co. v. TD Banknorth Ins.
Agency, 644 F.3d 166,172 (2d Cir. 2012).
41.Israel v. State Farm Mut. Auto. Ins. Co., 239
F.3d 127, 135-36 (2d Cir. 2000); see Employers’ Liab. Assurance Corp. v. Travelers
Ins. Co., 411 F.2d 862, 863 (2d Cir. 1969)
(Connecticut Supreme Court is “particularly expert” in insurance matters).
42.Arrowood Indem. Co. v. King, 605 F.3d 62,
79-80 (2d Cir. 2010).
43.See supra, at 2-3 & n.17.
44.Sealed, 332 F.3d at 59 (“there can be no
doubt that Connecticut has a compelling
interest in protecting child welfare”).
45.Jagger v. Mohawk Mt. Ski Area, Inc., 2002
U.S. Dist. LEXIS 20948, at *2-3 (D. Conn.
Sept. 24, 2002).
46.In re Boardwalk Marketplace Sec. Litig.,
849 F.2d 89, 90 (2d Cir. 1988).
47.Sealed, 332 F.3d at 59.
48.Fraser v. United States, 30 F.3d 18, 20 (2d
Cir. 1994).
49.Freedman v. Am. Online, Inc., 412 F. Supp.
2d 174, 189-90 (D. Conn. 2005).
50.Bethphage Lutheran Serv., Inc. v. Weicker,
965 F.2d 1239, 1246-47 (2d Cir. 1992)
(emphasis added).
51.Davis v. Mara, 587 F. Supp. 2d 422, 427 (D.
Conn. 2008).
52.Lopez v. Smiley, 375 F. Supp. 2d 19, 26-27
(D. Conn. 2005).
53.Parrot, 338 F.3d at 145.
54.Cweklinsky v. Mobil Chem. Co., 297 F.3d 154
(2d Cir. 2002).
55.Wolf v. Yamin, 295 F.3d 303, 312 (2d Cir.
2002); Conn. Gen. Stat. § 51-199b(d);
Conn. Prac. Book § 82-3.
56.See Conn. Prac. Book § 82-6.
57.Compare Fireman’s Fund Ins. Co. v. TD
Banknorth Ins. Agency, 644 F.3d 166
(2d Cir. 2011) (question certified April
2011), with Fireman’s Fund Ins. Co. v. TD
Banknorth Ins. Agency, Inc., 309 Conn. 449
(2013) (question answered July 2013);
Capstone Bldg. Corp. v. Am. Motorists Ins.
Co., No. 2:08-CV-00513-RDP (N.D. Ala.)
(questions certified September 2011),
with Capstone Bldg. Corp. v. Am. Motorists
Ins. Co., 308 Conn. 760 (2013) (answered
June 2013); compare Ballou v. Law Offices
of Howard Lee Schiff, P.C., 713 F. Supp. 2d
79 (D. Conn. 2010) (questions certified
May 2010), with Ballou v. Law Offices Howard Lee Schiff, P.C., 304 Conn. 348 (2012)
(answered April 2012); compare Gross v.
Visit www.ctbar.org
Rell, 585 F.3d 72 (2d Cir. 2009) (questions
certified October 2009), with Gross v. Rell,
304 Conn. 234 (2012) (answered April
2012); compare Arrowood Indem. Co. v.
King, 605 F.3d 62 (2d Cir. 2010) (question certified May 2010), with Arrowood
Indem. Co. v. King, 304 Conn. 179 (2012)
(answered March 2012); See also N.Y. State
Bar Association, Certification of Questions
of State Law in the Second Circuit 6 (2007)
(“for cases referred to the Connecticut
Supreme Court…the average time between
certification by the second circuit and
subsequent order conforming to the state
court’s decision is over 18 months.”).
58.Green Party of Conn. v. Lenge, 2010 U.S.
Dist. LEXIS 81898, at *6-7 (D. Conn. Aug.
11, 2010).
59.Georgitsi Realty, 702 F.3d at 158; Single
Source, Inc. v. Cent. Reg’l Tourism Dist.,
2011 U.S. Dist. LEXIS 52784, at *12 (D.
Conn. May 17, 2011).
60.L. Cohen & Co., 629 F. Supp. at 1424.
61.Izzarelli v. R.J. Reynolds Tobacco Co., 767 F.
Supp. 2d 324 (D. Conn. 2010).
62.Id. at 333 & n.10.
63. Id. Judge Underhill’s suggestion that
“other questions of state law” might need
to “be certified on appeal” proved to be
prescient. On appeal in Izzarelli, the
second circuit recently certified to the
Connecticut Supreme Court the question
whether Connecticut law “precludes strict
liability suits against a seller” of an unadulterated tobacco product. See Izzarelli
v. R.J. Reynolds Tobacco Co., 2013 U.S. App.
LEXIS 18760, *2 (2d Cir. Sept. 10, 2013).
64.Morenz v. Wilson-Coker, 415 F.3d 230, 237
n.6 (2d Cir. 2004).
65.Conn. Prac. Book § 82-3(2).
66.Pac. Emplrs. Ins. Co. v. Travelers Cas. & Sur.
Co., 888 F. Supp. 2d 271, 282 (D. Conn.
2012); Doninger v. Niehoff, 594 F. Supp. 2d
211, 229 n.5 (D. Conn. 2009) (“certification would require that the parties agree
on the facts”).
67.Remington Arms Co. v. Liberty Mut. Ins. Co.,
796 F. Supp. 117, 119-20 (D. Del. 1992)
(refusing to certify question to Connecticut
Supreme Court because “the parties have
not stipulated to the essential facts of this
case, and the case awaits the resolution of
these issues”)
68.Ballou v. Law Offices of Howard Lee Schiff
PC, 713 F. Supp. 2d 79, 80 (D. Conn. 2010).
69.Conn. Prac. Book. § 82-3.
70.Id. § 82-4.
71.Id.
72.See Conn. Performing Arts Found., Inc. v.
Brown, 801 F.2d 566, 568 (2d Cir. 1986)
(noting Supreme Court’s rejection of second circuit’s certification request); Blevio
v. Aetna Casualty & Sur. Co., 39 F.3d 1, 2-3
(1st Cir. 1994) (noting Connecticut Su-
preme Court’s rejection of District of Massachusetts’ certification request); Altman
v. Motion Water Sports, Inc., 722 F. Supp.
2d 234, 245 (D. Conn. 2010) (discussing
a 1998 case in which the district court
was left to decide a state law issue on its
own “faute de mieux” after the Supreme
Court “revers[ed] its decision accepting…
certification” with a “delphic” and “entirely
useless” reference to an earlier precedent).
73.Wesley W. Horton & Kenneth J. Bartschi,
Conn. Prac., Rules of Appellate Procedure
§ 82-1 (2012-2013 ed.) (“From 2001 to
2011, federal courts certified 25 cases to
the Connecticut Supreme Court. Three
were withdrawn and the other 22 were
accepted by the Supreme Court.”).
74.Lehman Bros., 416 U.S. at 390-91.
75.Kremen v. Cohen, 325 F.3d 1035, 1052 (9th
Cir. 2003) (Kozinski, J., dissenting).
76.Sol Wachtler, Federalism is Alive and Well
and Living in New York, 75 Alb. L. Rev. 659,
665 (2011).
77.Conn. Gen. Stat. 51-199b(i); Conn. Prac.
Book. §§ 82-5, 82-6.
78.Conn. Prac. Book § 82-3.
79.Fraser v. United States, 236 Conn. 625, 630
(1996) (“Common law prudence counsels
that we should refrain from deciding the
broader question.”).
80.Arrowood Indem. Co. v. King, 699 F.3d 735,
737 (2d Cir. 2012).
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