UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
TIG Insurance Company
v. Case No. 22-cv-165-SE Opinion No. 2023 DNH 029 National Indemnity Company
O R D E R
At issue in this case is the scope of in-state activity
necessary to establish specific jurisdiction over an out-of-
state declaratory-judgment defendant after a successor party to
the subject contract has relocated to the forum state. TIG
Insurance Company (“TIG”) argues that this court has personal
jurisdiction over an out-of-state insurance company, Defendant
National Indemnity Company (“NICO”), for the purpose of a
declaratory judgment action determining the rights and
obligations of the parties to a reinsurance contract originally
issued in 1973. The contract was formed out of state and had not
yet been breached when this suit was filed. Relying on Baskin-
Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28
(1st Cir. 2016), TIG argues that the court has jurisdiction
because NICO’s communications relating to the claim were
directed to TIG in New Hampshire beginning in 2018. But there is
no evidence that TIG’s asserted claim meaningfully implicates
any of NICO’s contacts with New Hampshire. Rather, it involves only the rights and obligations of the parties under a
previously existing agreement with respect to an
extrajurisdictional settlement. Consequently, the court does not
have jurisdiction and the case is dismissed.
Background
NICO is an insurance company based in Nebraska that issued
liability insurance to the State of Montana in effect from July
1, 1973, until July 1, 1975 (“Montana liability policy”). The
Montana liability policy covered Montana for, among other
things, claims asserted against the state that alleged bodily
injury arising out of the state’s errors or omissions.
To mitigate the potential for loss under the Montana
liability policy, NICO bought reinsurance coverage from several
insurance companies, including TIG’s predecessor, Skandia
Insurance Company Ltd. (“Skandia”). Skandia, a foreign insurance
company based in Stockholm, Sweden with a U.S. Branch in New
York, issued the reinsurance contract through a broker based in
Chicago, Illinois. TIG succeeded Skandia at some point after
Skandia and NICO entered into the reinsurance contract.
Beginning in 2000, workers at the Liberty Mine in Libby,
Montana (“Libby Mine”), brought claims against the State of
Montana to recover for asbestos-related injuries they allegedly
suffered from working in the mine. Montana tendered the claims
2 to NICO in 2002. NICO and Montana litigated and negotiated
NICO’s defense and indemnity obligations over the next 20 years
as claims continued to be made against Montana.
In 2009, Montana and certain Libby Mine claimants entered
into a settlement agreement in the amount of $43 million. In
2011, NICO paid Montana a portion of the settlement amount under
the Montana liability policy. NICO submitted a reinsurance bill
to TIG for a portion of the amount NICO had paid. TIG paid part
of the amount NICO billed in 2017.1
NICO brought a declaratory judgment action against Montana
in February 2012 in Montana state court, seeking a determination
of NICO’s rights, liabilities, and duties, if any, under the
Montana liability policy. Montana brought a counterclaim,
seeking coverage for the miners’ claims. Nat’l Indem. Co. v.
State of Montana, XDDV-20120-140. Litigation related to that
case lasted more than a decade. Montana and NICO eventually
resolved it by entering a settlement agreement on April 19,
2022. The Montana court approved the settlement on May 25, 2022.
While in litigation with Montana, NICO sent status reports
to TIG and its other reinsurers. Prior to 2018, TIG managed and
received communications from NICO regarding the reinsurance
contract, including NICO’s litigation status reports, through
1 The 2009 settlement and TIG’s 2017 payment are not part of this case.
3 TIG’s affiliate in Connecticut. Beginning in 2018, TIG began
managing and receiving communications from NICO regarding the
reinsurance contract through a different affiliate, RiverStone
Claims Management, LLC. RiverStone is located in New Hampshire.
After NICO and Montana entered into the April 2022
settlement agreement, NICO advised TIG that it would bill TIG
under the reinsurance contract for part of the settlement amount
after the Montana court approved the settlement. On May 11,
2022, before the Montana court approved the settlement, and
before NICO billed TIG, TIG filed this declaratory judgment
action. TIG alleges that any amount NICO owes under the
settlement agreement is not covered under the reinsurance
contract. Doc. no. 1, ¶ 29. TIG alleges only one cause of
action, seeking a declaratory judgment “regarding the parties’
rights and obligations under the [reinsurance contract] in
connection with or arising out of the ‘loss’ and ‘loss expense’
actually incurred by NICO under” the Montana liability policy.
Id., ¶ 33. On or around the same day TIG filed this action, two
other reinsurers brought similar suits against NICO in other
jurisdictions. See Global Reinsurance Corp. of Am. v. Nat’l
Indem. Co., 22-cv-3785(JSR) (S.D.N.Y. May 10, 2022); R&Q Ins.
Co. v. Nat’l Indem. Co., C.A. No. 2:22-cv-01807-NIQA (E.D. Pa.
May 10, 2022).
4 On June 6, 2022, after the Montana court approved the
settlement, NICO billed its reinsurers, including TIG, for the
portions of the settlement amount it believed due under their
respective reinsurance agreements. On the same day, NICO filed a
declaratory judgment action in the District of Nebraska against
its reinsurers, including TIG. Nat’l Indem. Co. v. Aioi Nissay
Dowa Ins., et al., 8:22-cv-199 (D. Neb. June 6, 2022).2 The suits
brought by the other reinsurers in the Southern District of New
York and the Eastern District of Pennsylvania have since been
dismissed without prejudice by agreement of the parties in favor
of litigation in the District of Nebraska. Therefore, the cases
currently proceeding in the District of Nebraska include all of
the reinsurers for NICO’s obligations under the Montana
liability policy. TIG’s suit here is the only case regarding
reinsurance obligations for the Montana liability policy that is
not proceeding in the District of Nebraska.
NICO now moves to dismiss, arguing that the court lacks
personal jurisdiction over NICO. Alternatively, NICO argues that
the court should transfer the case to Nebraska. TIG objects,
2 NICO also brought a separate declaratory judgment action against certain other reinsurers in Nebraska on that same day. See Nat’l Indem. Co. v. Liberty Mutual Insur. Co, et al., 22-cv- 200 (D. Neb. Apr. 6, 2022). The reason for, and the existence of, the second Nebraska declaratory judgment action are not material to the court’s order.
5 arguing that this court can exercise personal jurisdiction over
NICO and that transfer to Nebraska would be inappropriate.
I. Personal Jurisdiction
NICO contends that this court lacks personal jurisdiction
over it because NICO has not had sufficient contacts with New
Hampshire to support general personal jurisdiction and its
contacts with TIG in New Hampshire related to this case do not
support specific personal jurisdiction. In response, TIG
contends that specific personal jurisdiction exists based on the
parties’ communications and NICO’s other contacts with New
Hampshire.
A. Standard of Review
When, as here, the court does not hold an evidentiary
hearing on a Rule 12(b)(2) motion, the prima facie approach
applies. Rodriguez-Rivera v. Allscripts HealthCare Solutions,
Inc., 43 F.4th 150, 157 (1st Cir. 2022). Under that approach,
the court acts “as a data collector” but not as a factfinder.
Id. (quotation omitted).
As a data collector, the court takes the plaintiff’s
“properly documented evidentiary proffers as true and
construe[s] them in the light most favorable to [the
plaintiff’s] jurisdictional claim.” A Corp. v. All Am. Plumbing,
6 Inc., 812 F.3d 54, 58 (1st Cir. 2016). The plaintiff cannot
establish jurisdiction based on allegations in the complaint but
instead “must put forward evidence of specific facts to
demonstrate that jurisdiction exists.” Id. The court “also
consider[s] facts offered by [the defendant], to the extent that
they are not disputed.” Id. The plaintiff bears the burden of
showing that specific personal jurisdiction exists. Rodriguez-
Rivera, 43 F.4th at 160.
B. Specific Personal Jurisdiction
Because subject matter jurisdiction is based on diversity
in this case, the court “must determine whether the defendant’s
contacts with the state satisfy both the state’s long-arm
statute as well as the Due Process Clause of the Fourteenth
Amendment.” Vapotherm, Inc. v. Santiago, 38 F.4th 252, 258 (1st
Cir. 2022). New Hampshire’s long-arm statute permits personal
jurisdiction over an out-of-state defendant to the extent
allowed by due process. Id. TIG relies on specific personal
jurisdiction, which “exists when there is a demonstrable nexus
between a plaintiff’s claims and a defendant’s forum-based
activities, such as when the litigation itself is founded
directly on those activities.” Massachusetts Sch. of L. at
Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998).
7 To show that specific jurisdiction exists over a defendant, a
plaintiff must prove all three of the following elements:
(1)[its] claim directly arises out of or relates to the defendant’s forum-state activities; (2) the defendant’s contacts with the forum state represent a purposeful availment of the privilege of conducting activities in that state, thus invoking the benefits and protections of that state's laws and rendering the defendant’s involuntary presence in that state’s courts foreseeable; and (3) the exercise of jurisdiction is ultimately reasonable.
Vapotherm, 38 F.4th at 258. “Contacts made after the filing of
the complaint are not considered in the analysis of personal
jurisdiction.” AmTrans Health, LLC v. Z-Medica Corp., No. CV 08-
0044ML, 2008 WL 11388106, at *2 (D.R.I. Aug. 20, 2008) (citing
Harlow v. Children’s Hosp., 432 F.3d 50, 61, 64–65 (1st Cir.
2005) and Noonan v. Winston, 135 F.3d 85, 93 n.8 (1st Cir.
1998)); see also Matlin v. Spin Master Corp., 921 F.3d 701, 707
(7th Cir. 2019).
1. Relatedness
In the context of a contract claim, determining whether a
claim is related to the defendant’s contacts with the forum
requires the court to examine the defendant’s contacts during
“prior negotiations and contemplated future consequences, along
with the terms of the contract and the parties’ actual course of
dealing.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479
8 (1985). Where the “cause[] of action sound[s] in contract
. . . . the relatedness inquiry hinges on whether the
defendants’ contacts were instrumental in either the formation
or breach of the agreements in question.” Carreras v. PMG
Collins, LLC, 660 F.3d 549, 554 (1st Cir. 2011); see Vapotherm,
38 F.4th at 258-59.
Here, TIG points to no evidence to show that NICO’s
contacts with New Hampshire were instrumental to either the
formation or breach of the reinsurance contract for purposes of
the relatedness inquiry. It is undisputed that TIG’s
predecessor, a Sweden-based company with a New York branch,
issued the reinsurance contract through a Chicago broker to
NICO, a Nebraska company. Thus, regardless of the exact location
where the agreement was formed, it is plain that it was not
formed in New Hampshire.
In addition, neither TIG nor NICO had breached the
reinsurance contract at the time TIG initiated this action. At
that point, the Montana court had not yet approved NICO’s
settlement with Montana, NICO had not yet billed TIG for
coverage under the reinsurance contract, and TIG had not yet
denied coverage.3 Therefore, NICO’s contacts with New Hampshire
3 The circumstances that existed when the complaint was filed could raise a jurisdictional question as to whether a live case or controversy existed at that time. Although neither party raised subject matter jurisdiction as an issue, the court has a
9 cannot have been “instrumental” to any alleged breach of the
reinsurance contract. See, e.g., Harlow, 432 F.3d at 64–65.
TIG argues that, nevertheless, its claim arises out of or
relates to NICO’s activities in New Hampshire. TIG concedes that
the Montana liability policy, the litigation between NICO and
Montana, and all communications between TIG and NICO regarding
the reinsurance contract prior to 2018, are unrelated to New
Hampshire.4 It contends that the relatedness prong is satisfied,
responsibility to inquire sua sponte into its own jurisdiction. Amyndas Pharmas., S.A. v. Zealand Pharma A/S, 48 F.4th 18, 27 (1st Cir. 2022). The court is satisfied that the Article III jurisdictional requirements are met here because the legal issues pertaining to the parties’ obligations under the reinsurance contract were “certainly impending” when the complaint was filed, the relief requested would address those issues, and the dispute is ripe. SPARTA Ins. Co. v. Penn. Gen. Ins. Co., --- F. Supp. 3d ---, 2022 WL 3214947, at *3-*7 (D. Mass. Aug. 9, 2022); Tocci Bldg. Corp. of N.J., Inc. v. Virginia Sur. Co., 750 F. Supp. 2d 316,320-25 (D. Mass. 2010).
4 In support of its motion, TIG relies on the declaration of William Bouvier, the Vice President, Director, Assumed Reinsurance for RiverStone. Doc. 20-2. The declaration states that although TIG’s affiliate in Stamford, Connecticut “handled” matters related to the Reinsurance Claim until 2018, Bouvier, who was located in New Hampshire, was “responsible for supervising the handling of the Reinsurance Claim since 2014.” Id., ¶ 7. This supervision purportedly meant that either Bouvier or someone of more senior management in New Hampshire had to give “approval for financial transactions for large claims (such as the Reinsurance Claim).” Id. TIG does not appear to contend that NICO had any pre-2018 contact with New Hampshire regarding the Reinsurance Claim or the reinsurance contract to support the exercise of personal jurisdiction. To the extent that TIG intended to make that contention based on these statements in Bouvier’s declaration, that argument is not sufficiently developed to alter the court’s analysis.
10 however, because, beginning in 2018, “all material activities,
communications, and demands from NICO relating to the
Reinsurance Claim were directed to TIG in New Hampshire.” Doc.
no. 20-1 at 14. These activities and communications purportedly
include:
• NICO regularly communicated and corresponded with TIG regarding the Reinsurance Claim in New Hampshire;
• NICO regularly provided information relating to the Reinsurance Claim to TIG in New Hampshire;
• NICO provided regular updates to TIG in New Hampshire, including, significantly, how NICO intended to allocate and bill the Reinsurance Claim once the State/NICO settlement was approved by the court in Montana;
• TIG, in New Hampshire, reviewed and evaluated the information that had been provided by NICO and made the determination that NICO’s intended approach did not comply with the parties’ contract;
• NICO provided its formal notice and report of the finalized settlement to TIG in New Hampshire;
• NICO issued its demand for payment under the Reinsurance Contract to TIG in New Hampshire, in the amount of $56,808.283, and NICO demanded that TIG issue that payment from New Hampshire; and
• NICO now alleges that TIG has breached the Reinsurance Contract by virtue of its activities and determinations, including its refusal to make the demanded payment, all of which occurred in New Hampshire.
Id. at 14-15.
11 In support of its contention that the above activities
satisfy the relatedness element, TIG relies on Baskin-Robbins
Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28 (1st Cir.
2016), which it calls “instructive.” Doc. no. 21 at 15. In
Baskin-Robbins, Alpenrose, a dairy-products manufacturer located
in Oregon, entered into a franchise agreement in 1965 with
Baskin-Robbins, which then had its principal place of business
in California. Id. at 32. The agreement, which the parties
negotiated in California, gave Alpenrose the right to operate
Baskin-Robbins franchises in Washington and Oregon for a six-
year term. Id. The agreement also gave Alpenrose the option to
renew its franchises for successive six-year terms so long as it
gave Baskin-Robbins written notice at least one year prior to
the expiration of the current term. Id. In 1998, Baskin-Robbins
moved its headquarters from California to Massachusetts. Id. at
33.
Alpenrose sent Baskin-Robbins formal notice of its election
to renew the agreement every six years through 2007. Id.
Alpenrose sent the 2001 and 2007 renewal notices to Baskin-
Robbins’ headquarters in Massachusetts. Id.
In December 2013, shortly before its deadline to notify
Baskin-Robbins of its intent to renew the agreement for another
six-year term, Alpenrose gave Baskin-Robbins written notice that
it would not renew the agreement. Id. The parties then began
12 negotiating the terms of Alpenrose’s transition out of the
franchise arrangement. Id. In July 2014, after negotiations
stalled, Alpenrose wrote to Baskin-Robbins that it wished to
revoke its decision not to renew, and instead requested another
six-year extension. Id. Alpenrose’s letter also stated that if
Baskin-Robbins did not agree to renew, Alpenrose would be due
compensation under Washington law. Id.
Baskin-Robbins responded that Alpenrose had waited too long
and was not entitled to renew the agreement or to receive any
compensation. Id. Baskin-Robbins then brought suit in the
District of Massachusetts seeking judicial declarations that the
agreement would expire on December 8, 2014, and that Alpenrose
was not entitled to compensation under the agreement. Id.
Alpenrose moved to dismiss for lack of personal
jurisdiction or in the alternative to transfer the case to the
Western District of Washington. Id. The district court concluded
that it did not have personal jurisdiction and dismissed the
case. Id. On appeal, the First Circuit Court of Appeals
concluded that Baskin-Robbins had satisfied the elements of
personal jurisdiction and reversed, remanding the case for
further proceedings. Id. at 41.
With regard to the relatedness element of the analysis, the
First Circuit stated: “In its complaint, Baskin–Robbins seeks
declarations both that Alpenrose’s second letter did not
13 effectively renew the Agreement (with the result that the
Agreement expired on December 8, 2014) and that Alpenrose is not
entitled to any compensation in connection with the expiration
of the Agreement.” Id. at 35. In resolving that those claims
arose directly out of Alpenrose’s in-forum contacts, the First
Circuit concluded that “[a]lthough it is transparently clear
that the Agreement itself ultimately determines the effect of
Alpenrose’s two letters (that is, whether those letters
collectively resulted in renewal of the Agreement), it is the
letters that set the present controversy in motion.” Id. at 36.
Because the letters were sent to Baskin-Robbins in
Massachusetts, the First Circuit held that there was “a
sufficient nexus between Alpenrose’s letters and Baskin–Robbins’
claims” to satisfy the relatedness prong of the jurisdictional
analysis. Id.
TIG argues that, as with Alpenrose, NICO’s contacts with
TIG in New Hampshire are what “set the present controversy in
motion.” TIG contends that, as such, they are sufficient to
establish the relatedness prong of the jurisdictional analysis.
The court disagrees.
In Baskin-Robbins, the plaintiff sought a declaration that
the defendant’s letters did not effectively renew the parties’
agreement (and therefore that it owed no damages). The court
held that the fact that those letters — the legal effect of
14 which were the subject of and basis for the declaratory judgment
action — were sent to Massachusetts created a sufficient nexus
to satisfy the relatedness standard.
Unlike the plaintiff in Baskin-Robbins, TIG does not seek a
declaration as to the meaning or legal effect of any document
sent to New Hampshire. Instead, it seeks a declaration of its
rights and obligations under the reinsurance contract as it
pertains to the settlement agreement. Both the reinsurance
contract and the settlement agreement were negotiated and formed
outside of New Hampshire. Neither had been breached, here or
elsewhere, at the time that NICO filed this suit.
Nonetheless, TIG contends that NICO’s purported activity
and communications with TIG in New Hampshire regarding the
Reinsurance Claim are sufficient to satisfy the relatedness
prong. There are two problems with that argument. The first is
that TIG, which bears the burden of adducing evidence of
specific facts to show the existence of personal jurisdiction,
provides almost no specifics about NICO’s communications and
activity. Rather, it states simply that NICO “regularly”
communicated and gave information regarding the claim, without
offering any details as to the content or frequency of that
activity. Indeed, TIG points to and incudes with its objection
only a single pre-litigation communication from NICO to TIG in
New Hampshire: an April 21, 2022 email advising TIG that NICO
15 has finalized its settlement agreement with Montana and which
states that a “reinsurance billing will be submitted after court
approval is received.” Doc. no. 20-20 at 2. Thus, TIG has not
offered specific facts to show that NICO had regular contact
with New Hampshire regarding the Reinsurance Claim or the
reinsurance contract.
Second, even if TIG had provided those details, it offers
no support for its contention that those communications would
bring this case within Baskin-Robbins’ ambit. Baskin-Robbins
does not establish relatedness over every party who sends
communications into the forum with respect to an existing
contract. As mentioned, in that case, the defendant’s
connections to the forum state that the court deemed sufficient
to establish the relatedness prong were the defendant’s letters
sent to the forum state attempting to renew the parties’
agreement. Whether those letters successfully renewed the
agreement was the issue before the court. The contacts were not,
as TIG offers here to support jurisdiction, communications
generally about the parties’ dispute or the plaintiff’s own
activity in the forum state evaluating the parties’ contract.
TIG cites to no authority extending Baskin-Robbins’ holding to
the lengths it urges here.
At bottom, to support relatedness, TIG is left with NICO’s
notice of its not-yet-approved settlement with Montana and its
16 notice of how it intended to bill TIG and other reinsurers when
and if the Montana court approved the settlement. TIG believes
that the fact that NICO sent these communications to it in New
Hampshire is enough to satisfy the relatedness prong of the
personal jurisdiction analysis. Neither Baskin-Robbins, on which
TIG primarily relies, nor other First Circuit case law, supports
that contention. See Connell Ltd. P’ship v. Associated Indem.
Corp., No. 1:22-cv-10639, 2023 WL 122136 (D. Mass. Jan. 6,
2023). As such, TIG has failed to carry its burden to show
relatedness.
2. Remaining Factors
TIG’s failure to demonstrate relatedness between its claim
in this case and NICO’s contacts with New Hampshire means that
this court cannot exercise personal jurisdiction over NICO in
this case. A Corp., 812 F.3d at 59. Therefore, the court does
not address whether TIG has carried its burden to show that NICO
purposefully availed itself of the privilege of conducting
activities within the forum state or whether the exercise of
personal jurisdiction would be reasonable.
II. Transfer
NICO also moves in the alternative to transfer the case to
the District of Nebraska, where its suit against TIG and other
17 reinsurers is proceeding, relying on 28 U.S.C. § 1404(a).
Because the court grants NICO’s motion to dismiss on personal
jurisdiction grounds, it does not address whether transfer would
be appropriate if it could exercise personal jurisdiction over
NICO.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 7) is granted. The clerk of court shall
enter judgment accordingly and close the case.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge March 27, 2023
cc: Counsel of record.