
    SEA TOW SERVICES INTERNATIONAL, INC., Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., Defendant-Appellee, Houck Anderson, Andrew Anderson, Defendants.
    16-3672-cv
    United States Court of Appeals, Second Circuit.
    October 27, 2017
    FOR PLAINTIFF-APPELLANT: Mitchell A. Stein, Stein Law P.C., North-port, NY.
    FOR DEFENDANT-APPELLEE: Stephen M. Lazare (Andrew Premisler, on the brief), Lazare Potter & Giacovas LLP, New York, NY.
    PRESENT: Amalya L. Kearse, José A. Cabranes, Richard C. Wesley, Circuit Judges.
   SUMMARY ORDER

Plaintiff-appellant Sea Tow Services International, Inc. (“STSI”) appeals from the District Court’s grant of summary judgment against STSI and dismissal of all STSI’s claims with prejudice. STSI brought sundry claims against its insurer, defendant-appellee St. Paul Fire & Marine Insurance Co, (“St. Paul”), alleging that St. Paul, inter alia, breached the terms of its insurance policy with STSI, acted in bad faith when settling claims at no out-of-pocket cost to STSI, and engaged in unfair and deceptive trade practices. However, STSI appeals only the grant of summary judgment on the claims for bad faith and unfair and deceptive trade practices. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

This litigation stems from a boating accident that occurred at one of STSI’s franchisees, Triplecheck, Inc. (“Triplecheck”). The victim of the accident, an employee of Triplecheck, sued both STSI and Triple-check. Early in the litigation, STSI and Triplecheck agreed on a joint defense and sought a global settlement that would settle all the claims arising out of the accident. St. Paul, STSI’s insurer, opposed this strategy, and sought to settle only the claims against STSI. STSI alleged that, had it entered into a unilateral settlement with the victim, it would have been exposed to a cross-claim by Triplecheck for contractual indemnification. Nevertheless, the parties entered into the global settlement covering all claims.

We review the District Court’s grant of summary judgment de novo, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in [its] favor.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The parties agree that New York law applies.

Establishing that an insurer acted in bad faith when settling a claim can 'be a tough row to hoe under New York law, and STSI did not succeed in the undertaking. See Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 624 (2d Cir. 2001) (“[T]here remains a strong presumption in New York against a finding of bad. faith liability by an insurer.”). To prevail, a plaintiff must show that “the insurer’s conduct constituted a gross disregard of the insured’s interests,” and that “the insured lost an actual opportunity to settle the claim.” Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 453-54, 605 N.Y.S.2d 208, 626 N.E.2d 24 (1993) (internal quotation marks omitted). Here, there was no lost opportunity to settle. As STSI admits, St. Paul settled the claim and “all the parties got what they should have wanted, a global settlement ... within policy limits.” Appellant Br. at 2.

STSI may take issue with St. Paul’s pre-settlement strategy, but a “difference of opinion between carrier and insured” does not by itself constitute bad faith. Sukup v. New York, 19 N.Y.2d 519, 522, 281 N.Y.S.2d 28, 227 N.E.2d 842 (1967). At most, STSI proffered evidence that St. Paul’s strategy inadequately factored in a hypothetical scenario under which STSI might have been liable to Triplecheck, its franchisee, for contractual indemnification—a hypothetical scenario, it should be emphasized, that never came to pass. Such counterfactual thought experiments do not establish bad faith. Accordingly, the District Court properly granted St. Paul summary judgment on the bad faith claim.

Upon independent review of the record, and principally for the reasons set forth in the District Court’s September 29, 2016 memorandum and order, we also conclude that STSI failed to establish that St. Paul’s conduct constituted an unfair or deceptive trade practice.

CONCLUSION

We have reviewed all of the arguments raised by STSI on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the October 21, 2016 judgment of the District Court.  