National Trust Insurance Co. v. Pennsylvania National Mutual Casualty Insurance Co.

223 F. Supp. 3d 1236, 2016 U.S. Dist. LEXIS 170559, 2016 WL 7197397
CourtDistrict Court, M.D. Florida
DecidedDecember 9, 2016
DocketCase No. 3:16-cv-695-J-34PDB
StatusPublished
Cited by34 cases

This text of 223 F. Supp. 3d 1236 (National Trust Insurance Co. v. Pennsylvania National Mutual Casualty Insurance Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Trust Insurance Co. v. Pennsylvania National Mutual Casualty Insurance Co., 223 F. Supp. 3d 1236, 2016 U.S. Dist. LEXIS 170559, 2016 WL 7197397 (M.D. Fla. 2016).

Opinion

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is before the Court on Defendant’s Motion to Dismiss or, Alternatively, Motion to Transfer Venue and Brief in Support of Defendant’s Motion (Doc. No. 7; Motion), filed on July 5, 2016. In the Motion, Defendant requests that the Court dismiss Plaintiffs Complaint pursuant to Rule 12(b)(3), Federal Rules of Civil Procedure, or, alternatively, transfer this case to the Charlotte Division of the United States District Court for the Western District of North Carolina. See Motion at 1-2, 10. On July 10, 2016, Plaintiff filed a response in opposition to the Motion. See Plaintiff National Trust Insurance Company’s Response in Opposition to Defendant’s Motion to Dismiss or, Alternatively, Motion to Transfer Venue (Doc. No. 12; Response). In addition, on July 20, 2016, Plaintiff filed Plaintiffs Notice of Filing Affidavit and Corrected Exhibit (Doc. No. 13; Notice) in support of its Response. Accordingly, the Motion is ripe for resolution.

I. Factual Background and Procedural History

In the Complaint for Declaratory Judgment (Doc. No. 2; Complaint), Plaintiff National Trust Insurance Company (NTIC) asserts that it issued an insurance policy (the NTIC Policy) to Linear Masonry, Inc. (Linear), providing coverage for the policy period beginning April 14, 2010, and ending April 14, 2011. See Complaint ¶ 7. NTIC suggests that the NTIC Policy is governed by Florida law because it was both “issued and executed in Florida.” Id. Subsequently, Defendant Pennsylvania [1239]*1239National Mutual Casualty Insurance Company (Penn National) issued a policy (the Penn National Policy) to Linear providing coverage for the policy period beginning April 14, 2011, and ending April 14, 2012. See id. ¶ 8.

According to NTIC, on December 27, 2009, Tapestry Park II Hotel, LLC (Tapestry Park) entered into a contract with general contractor Cox & Schepp, Inc. (Cox), for the construction of a hotel in Duval County, Florida. See id. ¶ 11. NTIC alleges that, on September 6, 2010, Cox hired Linear as a subcontractor to install brick ties, brick veneer, and vapor/moisture barriers throughout the construction project. See id. ¶ 12. The hotel was completed in January of 2011. See id. ¶ 15. On October 12, 2012, Tapestry Park filed suit in Duval County, Florida, against several engineering and construction firms, including Cox (the State Court Action). Id ¶ 10. In the State Court Action, Tapestry Park alleged that Cox breached its contract by failing to complete work on the hotel according to the contract’s plans and specifications, thereby resulting in defects which, in turn, required repair. See id. ¶ 12. Tapestry Park further alleged that Cox violated the Florida Building Code. See id. ¶ 13. Notably, Tapestry Park did not name Linear as a pai'ty to this suit, see id. ¶ 14, and according to NTIC, Linear did not learn of the alleged defects until December 14, 2011, eight months after the NTIC Policy expired, see id. ¶ 17.

In response to Tapestry Park’s complaint in the State Court Action, on December 6, 2012, Cox filed a third party complaint against numerous subcontractors, including Linear, seeking indemnification pursuant to the terms of the subcontracts. Id. ¶¶ 18, 21. With respect to Linear, Cox alleged that Linear breached its subcontract by failing to defend and indemnify Cox from Tapestry Park’s claims and, further, by failing to name Cox as an additional insured in its insurance policy. See id. ¶ 23. Cox further alleged that Linear knowingly violated the Florida Building Code. See id. ¶ 24. According to NTIC, Linear tendered defense and indemnity of Cox’s claims to both NTIC and Penn National, and while NTIC denied coverage, Penn National agreed to defend Linear, albeit under a full reservation of rights. See id. ¶¶ 25-26.

Ultimately, Penn National settled Cox’s claims and thereafter sent NTIC a demand letter seeking reimbursement of the full settlement amount as well as all defense costs. See id. ¶¶ 27-28. In so doing, Penn National argued that the NTIC Policy provided coverage for Cox’s claims against Linear. See id. ¶ 29. Believing there to be a “real, substantial and justiciable controversy between the parties with respect to insurance coverage,” on June 6, 2016, NTIC filed the Complaint in the Fourth Judicial Circuit in and for Duval County, Florida. See Complaint at 1; ¶ 13. In the Complaint, NTIC seeks a declaratory judgment regarding its rights and obligations under the NTIC Policy. See id. ¶¶ 47-52. NTIC served Penn National with the Complaint on or around June 6, 2016, see Defendant’s Notice of Removal to Federal Court (Doc. No. 1; Notice of Removal) at 1-2, and Penn National removed the case to this Court on July 5, 2016. Id. That same day, Penn National filed the instant Motion. In addition, on November 11,2016, Penn National filed a counterclaim against NTIC asserting, as its first and second causes of action, that because NTIC had an obligation to defend and indemnify Linear, pursuant to the “Other Insurance” and “Transfer of Rights” provisions of the Penn National Policy, Penn National is entitled to recover the sum expended on behalf of Linear from NTIC. See Penn National’s Answer and Counterclaim (Doc. No. 20) at 11-18.

[1240]*1240In the Motion, Penn National seeks to dismiss this action on the basis of improper venue under the provisions of Rule 12(b)(3), Federal Rules of Civil Procedure (Rule(s)). See Motion at 2. In the alternative, Penn National requests that this Court transfer the case to the United States District Court for the Western District of North Carolina. See id. (citing 28 U.S.C. §§ 1404 and 1406). For the reasons set forth below, the Court determines that Penn National’s Motion is due to be denied.

II. Discussion

A. Motion to Dismiss

Citing Rule 12(b)(3), Penn National seeks dismissal of this action on the basis of improper venue. See Motion at 1. Specifically, Penn National argues that venue is improper in Florida because the NTIC Policy was issued to Linear—by NTIC’s agents—in North Carolina, and because the pertinent witnesses are in North Carolina as well.1 See Motion at 9-10. Although a challenge to a plaintiffs chosen forum is properly brought pursuant to Rule 12(b)(3), the substantive determination of whether venue is proper is governed by the applicable venue statutes. See Tritak v. Metro. Cas. Ins. Co., No. 3:08-CV-14-J-33JRK, 2008 WL 312675, at *1 (M.D. Fla. Feb. 4, 2008).2 Notably, Penn National cites no venue provision or other authority for its contention that venue in Florida is improper or that venue in North Carolina would be proper. More importantly, the Court concludes that Penn National’s contention regarding improper venue is without merit.

Pursuant to 28 U.S.C. § 1441

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Cite This Page — Counsel Stack

Bluebook (online)
223 F. Supp. 3d 1236, 2016 U.S. Dist. LEXIS 170559, 2016 WL 7197397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-trust-insurance-co-v-pennsylvania-national-mutual-casualty-flmd-2016.