U.S. Court of Appeals for the Second Circuit
Foreign Sovereign Immunity
Tortious Activity Exception
USAA Casualty Ins. Co. v. Permanent Mission, et al.
Judges Cabranes and Wesley
Background: The Permanent Mission of the Republic of Namibia to the United Nations brought an interlocutory appeal from a court’s denial of immunity under the Foreign Sovereign Immunities Act. The court had held that the mission, an instrumentality of the Republic of Namibia, was not immune from a tort suit based on its alleged failure to comply with the New York City Building Code.
Ruling: The Second Circuit affirmed. The Second Circuit found that the tortious activity exception to the FSIA applied. Specifically, the defendant-appellant had failed to “shore up” a party wall between the defendant’s property and an adjoining townhouse owned by the insured. Because New York City’s Building Code imposes a duty upon a person “causing construction” to maintain the structural integrity of party walls, the defendant was obligated to take all necessary steps to protect those walls.
Robert William Phelan of Cozen O’Connor for the plaintiff-appellee; Jay M. Levin of Reed Smith LLP for the defendant-appellant