Source One Financial Corp. v. Omni Insurance Group

2011 Mass. App. Div. 142, 2011 Mass. App. Div. LEXIS 27

This text of 2011 Mass. App. Div. 142 (Source One Financial Corp. v. Omni Insurance Group) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Source One Financial Corp. v. Omni Insurance Group, 2011 Mass. App. Div. 142, 2011 Mass. App. Div. LEXIS 27 (Mass. Ct. App. 2011).

Opinion

Merrick, J.

The plaintiff, Source One Financial Corporation (“Source One”), has appealed the dismissal of this action for lack of personal jurisdiction by the court over the defendant, Omni Insurance Group (“Omni”). Source One is a Massachusetts corporation located in Norwell, Massachusetts, engaged in the purchasing of retail installment contracts on used cars from used car dealers, and the collection of those obligations. As a part of that process, it ensures that it is named as the loss payee on insurance policies on those vehicles.

Omni is an insurer that sells automobile insurance in 16 states, including [143]*143Connecticut, but does not write insurance in Massachusetts.

Samantha Cannon (“Cannon”) of Stratford, Connecticut purchased a Connecticut Personal Auto Policy, Form 0906, Connecticut (01/09), from Omni, effective June 27, 2008 to June 27, 2009, that insured her two vehicles, including a 1998 BMW sedan. The policy was written through Housatonic Ins. & Financial Svcs. LLC in Bridgeport, Connecticut. Thereafter, the lien on the vehicle, held by the dealer who had financed the sale with a retail installment contract, was transferred to Source One. Effective October 16, 2008, the loss payee on the policy was amended to read “Source One Financial” at its Norwell address.

On June 3,2009, the BMW was involved in a collision in Bridgeport, Connecticut with a car operated by Ashley Mercado of Bridgeport, Connecticut, who was also insured by Omni. The BMW was reportedly a total loss. Omni asserted that Cannon did not report the accident until July 16, 2009. Following a demand by Source One, Omni made a settlement offer that Source One found inadequate. According to Source One, after some further dispute, Source One accepted Omni’s offer, but withdrew its acceptance on December 10, 2009 when Omni had still not paid the claim. From July 17, 2009 to date, there were, according to Source One, some 33 communications concerning the claim between Source One and Omni,1 including letters or faxes, telephone conversations, and telephone messages, the bulk of them initiated by Source One and seven of which occurred after suit had been filed.

On February 5, 2010, Source One commenced this action against Omni in the Hingham District Court, and served Omni by mail pursuant to the long-arm statute, G.Lc. 223A Omni’s motion in response, to dismiss for want of personal jurisdiction under Mass. R. Civ. E, Rule 12(b) (2), was allowed. Source One has appealed that ruling.

Source One appears to rely on G.L.c. 223A, §3(a), which provides for the exercise of personal jurisdiction over a person arising from the person’s “transacting any business in this commonwealth.”2 For purposes of asserting personal jurisdiction over a nonresident:

The governing principle is the fairness of subjecting a defendant to suit in a distant forum. Only if the nonresident defendant has such “minimum contacts” with the state “that the maintenance of the suit does not offend ‘traditional notions of fair play and justice,”’ or if the defendant has performed some act “by which [it] purposefully avails itself of the privilege of [144]*144conducting activities within the forum State, thus invoking the benefits and protections of its laws,” may the forum, consistently with due process, extend its long arm to embrace it.’ For the purpose of our examination here, these considerations coalesce around the following inquiry: whether there was some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action, (citations omitted).

Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 7 (1979).

“In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on ‘the relationship among the defendant, the forum, and the litigation.’” Rush v. Savchuk, 444 U.S. 320, 327 (1980), quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977). “This tripartite relationship is defined by the defendant’s contacts with the forum state, not by the defendant’s contacts with residents of the forum.” West Am. Ins. Co. v. Westin, Inc., 337 N.W.2d 676, 679 (Minn. 1983).

Typically, in Massachusetts, the loss payee under a loss payee clause, as distinguished from a mortgagee on insured real estate, is not an insured, but is only a designated payee and may recover only what the insured is entitled to recover under the contract. Commerce Bank & Trust Co. v. Centennial Ins. Co., 388 Mass. 289, 291 (1983), citing Franklin San Inst. v. Central Mut. Fire Ins. Co., 119 Mass. 240, 240-241 (1876), 5AJ.A APPLEMAN, INSURANCE LAW AND PRACTICE §3401 (1970), and 10A A. A ANDERSON, COUCH’S CYCLOPEDIA OF INSURANCE LAW §§42:702, 42:705 (2d ed. 1982). The Connecticut Personal Auto Policy, Form 0906, Connecticut (01/09), however, the content of which is promulgated by regulation of the Connecticut Insurance Commissioner pursuant to Conn. Gen. Stat §38a-334, provides that the loss payee’s rights “shall not become invalid because of [the insured’s] fraudulent acts or omissions unless the loss results from [the insured’s] conversion, secretion or embezzlement” of the insured property. It is not, however, the nature of a plaintiff’s claim that determines the viability of personal jurisdiction, but “whether there was some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action.” Good Hope Indus., Inc., supra at 7.

It is certainly true, as Source One points out, that in “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441 (1972), the Court distinguished the case before it from one against an insurer:

This case is also to be distinguished from Wolfman v. Modern Life Ins. Co., 352 Mass. 356 (1967), where we emphasized that only the barest of contacts with the State are required for jurisdiction over insurers, the insurance field lending itself to the furthest extension of jurisdiction based on an isolated contact. We see a distinction in such cases because of the nature of interstate insurance business where such insurers commonly choose to do business across State lines.

Id. at 446.

That the “barest of contacts with the State” will suffice does not mean that person[145]*145al jurisdiction exists per se over an insurer, even in the absence of purposeful action availing itself of the privilege of conducting activities within the forum state. For example, the fact of an insured’s potential liability from accident in a state in which the insurer does not otherwise have “minimum contacts” does not give rise to personal jurisdiction over the liability insurer in the state. See, e.g., Taylor v. Fireman’s Fund Ins. Co., 778 P.2d 1328, 1332 (Ariz. 1989); Tennessee Farmers Mut. Ins. Co. v.

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Bluebook (online)
2011 Mass. App. Div. 142, 2011 Mass. App. Div. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/source-one-financial-corp-v-omni-insurance-group-massdistctapp-2011.