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Certain Underwriters at Lloyd's v. Books For Less, LLC

Superior Court of New Jersey, Appellate Division

September 24, 2013

CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, SUBSCRIBING TO CERTIFICATE LV91449, Plaintiff-Appellant,
v.
BOOKS FOR LESS, LLC, BOOKS OUTLET LLC, AND SHMUELY HOLDING LLC, Defendants-Respondents

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 26, 2013

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0145-12.

Wendy D. Testa argued the cause for appellant (Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys; Ms. Testa, of counsel and on the brief).

Matthew Weng argued the cause for respondents (Chance & McCann, L.L.C., attorneys; Shanna McCann, of counsel and on the brief; Mr. Weng, on the brief).

Before Judges Alvarez and Maven.

PER CURIAM

Plaintiff Certain Underwriters at Lloyd's, London, Subscribing to Certificate LV91449 (Lloyd's or the insurer), brought a declaratory judgment action in New Jersey against defendants Books for Less, LLC (BFL), Books Outlet, LLC (collectively referred to as defendants), Shmuely Holding LLC, and John Does 1-12. Approximately a week later, on June 11, 2012, BFL sued Lloyd's in New York regarding the same disputed coverage. On September 14, 2012, the New Jersey proceeding was dismissed pursuant to the doctrine of forum non conveniens. The trial judge also denied Lloyd's motion for reconsideration of the dismissal. For the reasons that follow, we affirm.

We briefly summarize the circumstances which resulted in the orders now being appealed. In 2010, BFL, a New York limited liability company, obtained insurance coverage through its broker ARM-Capacity of New York LLC (ARM). ARM is a New York limited liability company. LoVullo Associates, Inc. (LoVullo) acted as the agent for Lloyd's. LoVullo is a New York corporation. The Lloyd's policy covered BFL's warehouse in New Jersey and an office BFL leased in New York City. The warehouse is owned by Shmuely Holding, a Delaware limited liability company. Lloyd's is an international organization, authorized to do business in New York and New Jersey.

BFL's prior insurer, Fireman's Fund, had terminated its coverage after a windstorm caused $750, 000 in damages in 2009, to the same New Jersey warehouse BFL reinsured through Lloyd's. When a second windstorm caused $727, 010.98 in damages to the structure on August 11, 2011, a claim of loss was filed with Lloyd's. Lloyd's made an initial $200, 000 payment in November 2011. Subsequently, in May 2012, Lloyd's rescinded the policy and demanded a refund of the partial payment because it alleged that the 2009 loss had not been disclosed on BFL's 2010 application for insurance. Approximately one week later, Lloyd's filed the complaint in New Jersey.

When defendants sued Lloyd's in New York to compel coverage, they also sued LoVullo and ARM. In that proceeding, BFL and Books Outlet sought a declaration that the insurer wrongfully cancelled the insurance.

In dismissing Lloyd's New Jersey complaint, the trial judge noted that, with the exception of Lloyd's and Shmuely Holding, the parties were New York companies and most had their principal place of business in New York City. He also noted that in addition to the New Jersey storage facility, the policy provided coverage to leased premises in New York. ARM and LoVullo, who were dismissed from the New York proceeding, negotiated the policy while in New York City.[1] Neither ARM nor LoVullo would submit to the jurisdiction of this state, and, the trial judge reasoned, both were necessary and indispensable parties. The insurance application was processed in New York. If any misrepresentations were made, they were made in New York.

The court therefore based dismissal on the doctrine of forum non conveniens, relying upon Yousef v. General Dynamics Corp., 205 N.J. 543 (2011). The relative ease of access to the sources of proof required the proceeding to be maintained in New York. Compulsory process was available only in New York. All the witnesses who might be called to resolve this contract dispute were New York and not New Jersey residents. The "private interest" factors tipped in favor of dismissal of the New Jersey proceedings. See id. at 560.

The trial judge weighed the "public interest" factors, finding that there was no New Jersey community interest in the matter, except the building's need for repairs. See id. at 562-64. Although forum non conveniens analysis generally favors retention of jurisdiction, in this case, New Jersey was a manifestly inappropriate jurisdiction as defined by precedent. None of the rights of the parties would be prejudiced by dismissal; hence no harm would ensue if the matter was not resolved here. Furthermore, should New York fail to resolve the issues in dispute, or refuse to exercise jurisdiction, the matter could be refiled in this state.

In analyzing whether reconsideration was appropriate, the judge reiterated that the sole contact with New Jersey was the damaged warehouse itself, and that it would be inappropriate to litigate the matter here when all of the necessary parties and proofs were in New York. Since he opined that plaintiff's application did not establish facts or law which he overlooked or misconstrued, as required by Rule 4:49-2 for relief on a motion for reconsideration, he denied that motion.

Our standard of review is abuse of discretion. Yousef, supra, 205 N.J. at 567; Civic Southern Factors v. Bonat, 65 N.J. 329, 333 (1974). This means we assess the trial court's exercise of discretion deferentially unless the mistaken exercise of discretion results in a manifest denial of justice. Haven Savings Bank v. Zanolini, 416 N.J.Super. 151, 161 (App. Div. 2010).

The trial judge properly relied upon Yousef. In that case, as a result of an automobile accident which occurred in South Africa, two passengers, the plaintiffs, who lived and worked in New Jersey, were seriously injured. Yousef, supra, 205 N.J. at 549. The corporate defendant did business in New Jersey with the plaintiffs' employer. Id . at 550-51. The individual defendant driver was an employee of the corporate defendant, and resided in Florida. Id. at 550. It was alleged that he ignored a stop sign at an intersection, resulting in the accident which caused the injuries. Id. at 549. All the known witnesses resided in the United States. Id. at 548. After the accident occurred in 2006, the intersection was reconfigured, although the parties had photographs and videos of the scene. Id. at 555. As Yousef explains, "[u]nder the doctrine of forum non conveniens, a court using its equitable power can decline to exercise jurisdiction over a defendant if that defendant can demonstrate that the plaintiff's choice of forum is 'demonstrably inappropriate.'" Id. at 548 (citing to Kurzke v. Nissan Motor Corp. in USA, 164 N.J. 159, 171-72 (2000)).

The process of determining whether such equitable power should be exercised calls for the analysis of public interest and private interest factors. Yousef, supra, 205 N.J. at 559. The factors were originally outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062-63 (1947), as adopted in Gore v. U.S. Steel Corp., 15 N.J. 301, 306-07 (1954).

This equitable doctrine "empowers a court to decline to exercise jurisdiction when a trial . . . [elsewhere] 'will best serve the convenience of the parties and the interests of justice.'" Yousef, supra, 205 N.J. at 557 (internal citations omitted). Preferential consideration is given to a plaintiff's choice of forum; however, it is not dispositive. Ibid. A presumption arises that New Jersey is the proper forum when a plaintiff resides in this state. Ibid. The decision, however, must be left to the sound discretion of the trial court and considerable deference must be accorded to the trial court's determination. Ibid. The alternative forum must be adequate and the defendants must be amenable to process there. Ibid. The other forum is inadequate if the remedy is clearly unsatisfactory in the other jurisdiction. Ibid.

When assessing public interest factors, a court weighs considerations such as the delay due to backlog in the other jurisdiction, whether the jurors in that jurisdiction should be compelled to hear a case in which the community has no real interest, and whether the law of the case will be the law of the forum. Id. at 558. Accordingly, in Yousef, jurisdiction was retained in New Jersey. Id. at 548.

In this case, the trial judge reasonably concluded that only the jurors in New York who are members of the community would be affected by the contract dispute between these parties regarding insurance coverage. Furthermore, it is likely that even if the matter were tried in New Jersey, there would at least be a question as to whether the law governing the dispute would be the law of New York. See ibid.

We also agree with the trial judge's assessment of the private interest factors. There will be relative ease of access to the proofs by way of witnesses and documents located in New York. See ibid. With the exception of Lloyd's, all the parties involved would be inconvenienced by being required to appear in New Jersey. All the affected business entities, with the exception of Lloyd's and Shmuely, are New York corporations. Compulsory process may be available only in New York for necessary parties. Compelling the attendance of witnesses will cost less in New York than it would in New Jersey.

The only factor that weighs in favor of the retention of jurisdiction in New Jersey is that the warehouse is located in this state and ultimately the dispute will affect whether or not repairs can be made. We concur, however, with the judge's conclusion that the warehouse's location, a single factor, is not of such consequence as to require the litigation to remain here. Significant hardship would result to everyone except Lloyd's, who is equally inconvenienced whether the case is tried in New York or New Jersey. As Yousef dictates, it is the defendants' burden to establish that the choice of forum is demonstrably inappropriate. Id. at 559. Defendants here have met that burden.

Lloyd's also contends the trial court abused its discretion by not applying the general rule under principles of comity presumptively favoring the first filed action. See discussion found in Century Indem. Co. v. Mine Safety Appliances Co., 398 N.J.Super. 422, 426-27 (App. Div. 2008). The argument is premised on Lloyd's interpretation of the doctrine as requiring defendants to establish that a first filed action existed in another jurisdiction involving the same parties and issues before consideration is given to any "special equities" which might overcome the presumption favoring retention in New Jersey. That reading of the doctrine is not correct.

As we said in Century, it is necessary for the party seeking to overcome the presumption to only demonstrate that the two actions "involve substantially the same parties, claims and issues." Id. at 434 (internal citations omitted). Lloyd's is not claiming that it will be favored in this coverage dispute by resolution in New Jersey as opposed to New York. In fact, the likelihood is that New York law, not New Jersey law, will apply to the dispute. The contract was negotiated and entered into in New York, and the dispute involves New York business entities. Id. at 436. On this point, the second page of the policy in dispute is noteworthy:

THIS POLICY IS WRITTEN BY A SURPLUS LINES INSURER AND IS NOT SUBJECT TO THE FILING OR APPROVAL REQUIREMENTS OF THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE. SUCH A POLICY MAY CONTAIN CONDITIONS, LIMITATIONS, EXCLUSIONS AND DIFFERENT TERMS THAN A POLICY ISSUED BY THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE. THE INSURER HAS BEEN APPROVED BY THE DEPARTMENT AS AN ELIGIBLE SURPLUS LINES INSURER, BUT THE POLICY IS NOT COVERED BY THE NEW JERSEY GUARANTY FUND ....

In any event, the facts in Century make clear that even in the most literal sense, the doctrine does not require that a first filed action exist in another jurisdiction. See Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373 (2008). In Century, an insurer filed a complaint seeking declaratory judgment in New Jersey, which was the first filed proceeding. Century, supra, 398 N.J. Super, at 425. We ultimately dismissed because, among other reasons, the action was brought here in the hopes of placing the insurer first in the race to the courthouse in a forum it considered to be more favorable. Id. at 439. Additionally, New Jersey was neither the insurer's place of incorporation nor a principal place of business, true for Lloyd's as well. The first filed rule does not presumptively favor retention in New Jersey in this case. Principles of comity simply do not lead us to that result. Therefore, the trial judge did not abuse his discretion by rejecting the analysis.

Affirmed.


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