United States District Court, D. Rhode Island
THE PHOENIX INSURANCE COMPANY and PDS ENGINEERING AND CONSTRUCTION, INC., Plaintiffs,
THE CINCINNATI INDEMNITY COMPANY, Defendant.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
litigation arises out of an incident that occurred at
Electric Boat Corporation's property in North Kingstown,
Rhode Island, in which an employee of a subcontractor
performing work on the property sustained fatal injuries
while engaged in his employment duties. The employee's
widow initiated a wrongful death action against Electric Boat
and PDS Engineering & Construction, Inc. in Washington
County Superior Court. PDS had been hired by Electric Boat to
make improvements to Electric Boat's property; PDS had
subcontracted part of the project to International Door, Inc.
(the decedent's employer). International Door held an
insurance policy issued by The Cincinnati Indemnity Company,
under which PDS and Electric Boat claim to have been included
as additional insureds; Cincinnati Indemnity, however, has
refused to defend and indemnify PDS and Electric Boat in the
state court litigation.
its insurer, The Phoenix Insurance Company
(“Plaintiffs”), have initiated a separate cause
of action in this Court against Cincinnati Indemnity
(“Defendant”) seeking a declaratory judgment that
International Door's insurance policy includes PDS and
Electric Boat as additional insureds under International
Door's commercial general liability and umbrella
liability coverages. Plaintiffs are also alleging that
Defendant breached its contractual obligations to them.
(an Ohio-based company) filed a motion to dismiss for lack of
personal jurisdiction and improper venue, or, in the
alternative, to transfer the cause of action to the United
States District Court for the Eastern District of Michigan.
Defendant argued that Michigan would be the proper venue
because International Door, its insured, is incorporated in
Michigan and the policy was issued in Michigan. Plaintiffs
were granted leave to conduct jurisdictional
discovery, and Magistrate Judge Lincoln D.
Almond held a hearing before issuing a Report &
Recommendation. In the R&R, the Magistrate Judge found
that the District of Rhode Island has neither general nor
specific personal jurisdiction over Defendant and that this
District is therefore an improper venue. Rather than
recommending dismissal of the case, however, the Magistrate
Judge recommended transferring it to the Eastern District of
Michigan, as requested by Defendant. Plaintiffs filed a
timely objection to the R&R.
Standard of Review
to Rule 72(b)(3) of the Federal Rules of Civil Procedure, the
Court reviews de novo any part of an R&R addressing a
dispositive motion to which an objection has been properly
object to the R&R on the bases that the Magistrate Judge
erred by (1) finding no general personal jurisdiction in
Rhode Island over Defendant, and (2) recommending transfer of
the cause of action to the Eastern District of Michigan as
the appropriate disposition of the motion.
argue that the Magistrate Judge overlooked the evidence
showing that Defendant consented to general personal
jurisdiction when it signed the Uniform Consent to Service of
Process form in 2007 and again in 2015. Plaintiffs assert
that these forms have the effect of waiving all challenges to
personal jurisdiction. Plaintiffs also argue that, because
Defendant has maintained a license to sell insurance in Rhode
Island since 2007, it has had sufficient contacts with Rhode
Island for this District to exercise jurisdiction over it.
responds to Plaintiffs' objection with the contentions
that the Magistrate Judge squarely addressed Plaintiffs'
argument regarding consent and concluded that the Uniform
Consent to Service of Process form does not equate to consent
to personal jurisdiction in Rhode Island. Defendant also
asserts that Plaintiffs' consent argument is waived
because it was raised during oral argument before the
Magistrate Judge and not in Plaintiffs' initial
memorandum in opposition to Defendant's motion.
as a foreign company, was required by statute to designate
the insurance commissioner for Rhode Island as an individual
upon whom service of process could be served. The template form
states that the “Applicant Company”:
does hereby consent that any lawful action or proceeding
against it may be commenced in any court of competent
jurisdiction and proper venue within the State(s) so
designated; and agrees that any lawful process against it
which is served under this appointment shall be of the same
legal force and validity as if served on the entity
form is clearly titled a “Uniform Consent to Service of
Process” and is designed to fulfill that purpose in
addition to complying with the statutory mandate in §
27-2-13. The form provides that the
“Applicant Company's” consent to service of
process on the designated state officer shall have the same
effect as if service was made directly on the entity, but
qualifies its acknowledgement of litigation to a properly
initiated cause of action or proceeding with “any court
of competent jurisdiction” and
“proper venue.” This form does not,
therefore, include a general consent to personal jurisdiction