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New York Marine and General Insurance Co. v. Lafarge North America, Inc.

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Argued: November 16, 2009

Before: MINER and STRAUB, Circuit Judges.*fn2

Insured defendant-counter-plaintiff-appellant-cross-appellee Lafarge North America, Inc. (“Lafarge”), intervenor and primary-insurer plaintiff-counter-defendant-appellee-cross-appellant New York Marine and General Insurance Company (“NYMAGIC” or the “primary insurer”), and excess-insurers plaintiffs-counter-defendants-appellants-cross-appellees Northern Assurance Company of America (“NACA”) and American Home Assurance Company (“AHAC” or, collectively with NYMAGIC, in its additional capacity as excess insurer, and NACA, the “excess insurers”), appeal from an order entered on January 29, 2007, and summary judgments entered on October 27, 2008, and February 19, 2009, in the United States District Court for the Southern District of New York (Haight, J.). The District Court, inter alia, (1) dismissed all causes of action brought against insurer plaintiff-counter-defendant-appellee American Steamship Owners Mutual Protection and Indemnity Association, Inc. (the “American Club” or the “Club”); (2) granted Lafarge the fees and expenses of two of the three law firms it retained without the knowledge or consent of the primary insurer; (3) denied Lafarge’s motion for attorneys’ fees incurred in defending against the insurers’ motions for summary judgment; and (4) denied Lafarge’s motion to transfer the American Club action to the United States District Court for the Eastern District of Louisiana. For the reasons that follow, we affirm in part and vacate in part the District Court’s judgments.

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