Wingard v. Lansforsakringar AB et al

Filing 68

MEMORANDUM OPINION. Signed by Chief Judge William Keith Watkins on 10/23/12. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WALTER WINGARD,

)
)
Plaintiff,
)
)
v.
)
)
LÄNSFÖRSÄKRINGAR AB,
)
LÄNSFÖRSÄKRINGAR ALLIANCE )
AB, and LF KRONOBERG,
)
)
Defendants.
)

CASE NO. 2:11-CV-45-WKW
[WO]

MEMORANDUM OPINION
Plaintiff Walter Wingard, as the assignee of the insureds’ rights, brings claims
against Defendant LF Kronoberg (“LFK”) for breach of an insurance contract and
negligent failure to settle, and to enjoin a related lawsuit filed by LFK in a Swedish
court. Before the court is Defendant LFK’s Motion to Dismiss (Doc. # 43), which is
accompanied by a supporting brief and evidentiary submissions. (Docs. # 44 & 45.)
Plaintiff filed a response (Doc. # 59), to which LFK replied (Doc. # 62).
LFK moves to dismiss this action for lack of personal jurisdiction and for
improper venue based upon the policy’s forum selection clause that designates the
courts of Sweden as the appropriate venue. Plaintiff claims that LFK has sufficient
contacts with the state of Alabama to justify the imposition of personal jurisdiction,
and that the forum selection clause is unenforceable. Upon careful consideration of

counsel’s briefs, the relevant law, and the record as a whole, the court previously
denied LFK’s Motion to Dismiss. (Doc. # 66.) This is the opinion referenced in that
Order.
I. SUBJECT MATTER JURISDICTION
The court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
The amount in controversy exceeds $75,000, and there is complete diversity of
citizenship between Plaintiff and Defendants. The parties do not dispute subject
matter jurisdiction, and the record establishes an adequate basis for it.
II. STANDARDS OF REVIEW
A.

Lack of Personal Jurisdiction
A Rule 12(b)(2) motion tests the court’s exercise of personal jurisdiction over

a defendant. See Fed. R. Civ. P. 12(b)(2). Where a Rule 12(b)(2) motion to dismiss
is decided without an evidentiary hearing, the plaintiff need only establish a prima
facie case of personal jurisdiction over a non-resident defendant. See Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir. 1990). A plaintiff demonstrates a “prima facie case
of personal jurisdiction” by submitting sufficient evidence to defeat a motion made
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Snow v. DirecTV,
Inc., 450 F.3d 1314, 1317 (11th Cir. 2006). Allegations in the complaint are
presumed true, if uncontroverted by the defendant’s evidence. Madara, 916 F.2d
2

at 1514. “When the parties submit conflicting affidavits, the court, in the absence of
an evidentiary hearing, ‘is inclined to give greater weight to the plaintiff’s version of
the jurisdictional facts and to construe such facts in the light most favorable to the
plaintiff.’” Estate of Myhra v. Royal Caribbean Cruises, Ltd., No. 10–15840, 2012
WL 4207303, at *3 (11th Cir. Sept. 21, 2012) (quoting Home Ins. Co. v. Thomas
Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990)).
B.

Improper Venue
Rule 12(b)(3) of the Federal Rules of Civil Procedure provides for dismissal

for “improper venue.” A Rule 12(b)(3) motion is the proper way to invoke a forum
selection clause. Hollis v. Fla. State Univ., 259 F.3d 1295, 1300 n.5 (11th Cir. 2001).
A Rule 12(b)(3) challenge based on a forum selection clause presents a pure question
of law. Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1290–91 (11th
Cir. 1998). “The validity of a forum selection clause is determined under the usual
rules governing the enforcement of contracts in general.” P & S Bus. Machs., Inc. v.
Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003) (citing In re Ricoh Corp., 870
F.2d 570, 573 (11th Cir. 1989)).

3

III. BACKGROUND
This lawsuit arises from LFK’s actions in defending its insured, Texo, Inc., and
Texo AB (collectively “Texo”), and LFK’s alleged breach of an insurance contract
and negligent failure to settle a wrongful death action brought against Texo in an
Alabama court. The deceased is Beverlyn Wingard. Ms. Wingard worked for Albany
International (“Albany”) at its plant in Montgomery, Alabama. She operated a
machine known as a warper during the course of her employment with Albany. The
warper was not properly guarded, and as a result, on January 28, 2008, Ms. Wingard
died when her body was pulled into the rotating parts of the machine. Plaintiff, as the
administrator of Ms. Wingard’s estate, filed an action against Texo under the
Alabama Wrongful Death Act, see Ala. Code § 6-5-410, alleging that Texo
negligently or wantonly inspected, repaired, or altered the warper machine owned by
Albany (the “underlying action”).1 Texo filed claims under its general liability
insurance policy with LFK (“the policy”).
LFK is an independent mutual insurance company incorporated under the laws
of and headquartered in Sweden. It has no offices, officers, employees, or agents in

1

Since his sister’s death, Plaintiff has worn two litigation hats. The first hat is that of the
administrator of Ms. Wingard’s estate. Wearing that hat, Plaintiff instituted the underlying
action. In this litigation, Plaintiff wears a different hat – the hat of the assignee of Texo’s rights
under the LFK policy. It is important to keep that distinction in mind.
4

Alabama. It is not licensed to do business in the state of Alabama. It has never
issued an insurance policy to an individual or entity domiciled in Alabama and has
never insured an Alabama citizen. Notwithstanding its physical absence in Alabama,
LFK issued a general liability policy to Texo that insured risks arising from Texo’s
activities in the United States and thus necessarily in Alabama, pursuant to a
worldwide territory-of-coverage clause.2 LFK concedes that nothing in the policy
would have precluded Texo from conducting insured activities in the state of
Alabama.
Pursuant to the insurance policy, LFK defended Texo in the underlying action
brought by Plaintiff (wearing his first litigation hat) against it in an Alabama court.
It hired Länsförsäkringar AB to manage the Alabama litigation process.3 (See Lars
Gustafsson’s Dep. 5, 7; see also Fredrik Daveby’s Dep.’s 5–6 (testifying that LFK
“purchased . . . legal services from [Länsförsäkringar AB] in connection with” the
underlying action).) Länsförsäkringar AB contacted a legal firm in New York, and
that firm recommended an Alabama law firm. LFK funded the defense by paying the
fees incurred by the Alabama law firm. LFK also actively participated in discussions

2

Texo AB is the named insured and Texo, Inc., is as an additional insured. Texo, Inc., is
a United States corporation, and Texo AB is a Swedish corporation.
3

LFK owns an interest in Länsförsäkringar AB. (See Daveby’s Dep. 5–6 (testifying that
LFK is one of several mutual insurance companies that owns Länsförsäkringar AB).)
5

with Länsförsäkringar AB regarding the progress of the litigation and received advice
and instructions from Länsförsäkringar AB. (See Gustafson’s Dep. 7.) LFK also
allegedly received, but refused, an offer to settle the underlying action for the
applicable policy limits.4
After a nonjury trial in the underlying action to which Texo agreed, the trial
court found Texo liable under the Alabama Wrongful Death Act. The Alabama
Wrongful Death Act only permits the recovery for punitive damages,5 and,
accordingly, judgment was entered in Plaintiff’s favor for punitive damages in the
amount of $5,250,000, an amount that exceeds Texo’s policy limits. LFK denied
Texo’s indemnity claim for payment of the judgment on the basis of the policy’s
punitive damages exclusion. (Certificate of Insurance (Ex. G to Doc. # 59).) At some
point, Texo, Inc., and Texo AB assigned their contractual rights with LFK to Plaintiff
in accordance with § 8-5-20 of the Alabama Code. This lawsuit arises from that
assignment of rights.

4

The policy limits were 20,000,000 Swedish Krona, approximately $3,000,000.00, for
General Liability and Products Liability. See http://www.xe.com/currency tables/
?from=SEK&date=2008-01-01 (last visited Oct. 22, 2012).
5

The Alabama Wrongful Death Act is “unique” in that prevailing plaintiffs may recover
“‘only punitive damages.’” Entrekin v. Internal Med. Assocs. of Dothan, P.A., 689 F.3d 1248,
1253 (11th Cir. 2012) (quoting Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1262 (Ala.
1986)).
6

Standing in the shoes of Texo as its assignee, Plaintiff brings three claims
against LFK.6 In Count I, Plaintiff alleges that LFK breached the contract of
insurance with Texo by failing to pay the underlying judgment. Specifically, Plaintiff
alleges that LFK violated Alabama’s public policy by relying on the punitive damages
exclusion to deny indemnity coverage for the underlying judgment. Plaintiff requests
“all amounts under the insurance policy including the equivalent of $5,250,000.00
. . . .” (Am. Compl. ¶ 22.) In Count II, seeking unspecified damages, Plaintiff alleges
that LFK’s refusal to settle the underlying action within the applicable policy limits
was negligent and exposed Texo to damages liability exceeding the policy limits. In
Count III, Plaintiff alleges that in September 2011, LFK sued Plaintiff in a Swedish
court “in an effort to usurp this court’s authority . . . .” (Am. Compl. ¶ 31.) Plaintiff
requests an order enjoining Defendants from prosecuting the action pending in the
Swedish courts.
IV. DISCUSSION
Part A addresses LFK’s Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction and examines whether the due process requirements are satisfied for the

6

Plaintiff claims against Defendants Länsförsäkringar AB and Länsförsäkringar Alliance
AB are not implicated in the present motion.
7

court’s exercise of specific jurisdiction over LFK. Part B addresses LFK’s Rule
12(b)(3) motion to dismiss for improper venue based upon the forum selection clause.
A.

Personal Jurisdiction
“When a defendant challenges personal jurisdiction, the plaintiff bears the

burden of establishing that the exercise of personal jurisdiction over the defendant
comports with the certain fundamental requirements.”7 Brannon v. Fin. Am., LLC,
483 F. Supp. 2d 1136, 1139 (M.D. Ala. 2007). In diversity cases, a federal court
considering whether it may exercise personal jurisdiction over a non-resident
defendant faces two separate constraints: the long-arm statute of the state in which
the federal court resides and the Due Process Clause of the Fourteenth Amendment.
Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). For a federal court
in Alabama, these considerations are merged, as “Alabama’s long-arm statute permits
the exercise of personal jurisdiction to the fullest extent constitutionally permissible.”
Id. (citing Ala. R. Civ. P. 4.2(b); Sieber v. Campbell, 810 So. 2d 641, 644 (Ala.
2001)).
The due process inquiry consists of two parts. First, the defendant must have
“certain minimum contacts” with the forum state. Burnham v. Superior Court of

7

The jurisdictional issue is being considered based upon the pleadings and evidence. In
the exercise of its discretion, the court declines to hold an evidentiary hearing, and the parties
have not requested one. See Madara, 916 F.2d at 1514.
8

Calif., 495 U.S. 604, 618 (1990). Two types of minimum contacts can form the basis
for personal jurisdiction: general and specific. See Stubbs v. Wyndham Nassau
Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 n.3 (11th Cir. 2006). If
minimum contacts exist, then the exercise of jurisdiction over the defendant must “not
offend ‘traditional notions of fair play and substantial justice.’” Burnham, 495 U.S.
at 618 (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). “This two-part
test embodies the controlling due process principle that a defendant must have ‘fair
warning’ that a particular activity may subject it to the jurisdiction of a foreign
sovereign.” Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir.
1993).
LFK asserts that subjecting it to personal jurisdiction in Alabama would violate
the Fourteenth Amendment’s Due Process Clause because Plaintiff cannot show
either general or specific jurisdiction and because exercising personal jurisdiction
over LFK would not comport with traditional notions of fair play and substantial
justice. Plaintiff concedes that general personal jurisdiction is absent. The issue is,
therefore, one of specific personal jurisdiction.
1.

Minimum Contacts

Specific jurisdiction requires (1) that a defendant’s contacts with the forum
state be related to the cause of action or give rise to it; (2) involve “some act by which
9

the defendant purposefully avails itself of the privilege of conducting activities within
the forum,” and (3) “be such that the defendant should reasonably anticipate being
haled into court there.” Sloss Indus. Corp., 488 F.3d at 925.
a. Contacts that Relate to or Give Rise to the Cause of Action
LFK contends that Plaintiff’s alleged injuries arose out of Texo’s modifications
of the warper that caused Ms. Wingard’s death, not out of the insured-insurer
relationship between LFK and Texo. LFK further argues that this lawsuit constitutes
a direct action by the insured’s tort claimant (Ms. Wingard’s administrator) for
recovery of the $5.25 million judgment from the insurer (LFK). Based on these
contentions, LFK argues that it has no contacts that are related to the causes of action
against it or that gave rise to those causes of action.
As a preliminary matter, LFK’s contention reflects a fundamental
misunderstanding of the nature of this lawsuit.8 Plaintiff is not proceeding in this
lawsuit in his capacity as the administrator of Ms. Wingard’s estate. This is the hat
he wore in the underlying action, see supra note 1. Contrary to LFK’s assertion,
Plaintiff has not invoked Alabama’s direct action statute against LFK to reach and
apply the policy’s proceeds for satisfaction of the $5.25 million judgment. See Ala.
Code § 27-23-2; (see also LFK’s Reply Br. 10 (continuing to assert erroneously that
8

The court will presume that LFK’s misunderstanding is unwitting.
10

Plaintiff, as the representative for Ms. Wingard, “has filed this declaratory judgment
action regarding insurance coverage for Texo . . . under Alabama’s Direct Action
Statute”).) Instead, Plaintiff is suing in his second hat, which is his capacity as the
assignee of Texo’s rights under the insurance contract at issue. (See Am. Compl.
¶ 5); see also Green Tree Fin. Corp. v. Channell, 825 So. 2d 90, 95 (Ala. 2002)
(When a party assigns its rights under a contract to an assignee, the assignee steps
into the shoes of the assignor and possesses all the rights the assignor originally
possessed.).
This lawsuit is not about “what caused Plaintiff’s [decedent’s] injuries” (Doc.
# 44, at 18), but rather what caused Texo’s injuries. The causes of action seek
recovery for LFK’s alleged breach of its insurance contract with Texo for failing to
provide indemnity for any part of the $5.25 million judgment and for LFK’s alleged
negligent failure to settle the underlying action for the policy limits. The personal
jurisdiction issue is whether LFK’s contacts with Alabama are related to these causes
of action. Given LFK’s apparent confusion, LFK has not offered any meaningful
analysis as to whether it has contacts with Alabama that relate to or give rise to the
causes of action, and the court is not obligated to formulate arguments on its behalf.
Eleventh Circuit precedent establishes, however, that one of LFK’s contacts
with Alabama is LFK’s inclusion of Alabama within the territory-of-coverage clause
11

in the policy. See McGow v. McCurry, 412 F.3d 1207, 1214 (11th Cir. 2005),
abrogation recognized on other grounds in Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249 (11th Cir. 2010). Absent any argument to the
contrary, the court finds that this contact relates to and arises out of the causes of
action. That is so because the causes of action are steeped in LFK’s contractual
obligations under the policy and relate to its coverage conduct with respect to the
underlying action litigated in Alabama. In other words, had it not been for LFK’s
refusal to settle or provide indemnity for the judgment in the underlying action,
Plaintiff would not have needed to bring this lawsuit as the assignee of Texo’s
contractual rights under the policy. Cf. McGow, 412 F.3d at 1214 (holding that the
insurance company’s contact with the forum state was established based upon the
policy’s territory-of-coverage clause and that the contact was related to the insured’s
action for damages covered by the policy).
b.

Purposeful Availment

The defendant must “purposefully avail[ ] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Considerations such as the
quality, nature, and extent of the activity in the forum, the foreseeability of
consequences within the forum from activities outside it . . . relate to whether it can
12

be said that the defendant’s actions constitute ‘purposeful availment.’” Sea Lift, Inc.
v. Refinadora Costarricense de Petroleo, S.A., 792 F.2d 989, 993 (11th Cir. 1986).
LFK argues that it has not purposefully availed itself of the privilege of
conducting activities within the state of Alabama based upon its absence of a physical
presence in the state of Alabama. LFK contends further that its insurance contract
with Texo is insufficient to create any connection between it and the state of
Alabama, notwithstanding that Texo ultimately engaged in activities in Alabama that
led to the underlying action. LFK asserts that even if the insurance contract is
deemed a contact, the contract alone is insufficient to subject it to a lawsuit in
Alabama, absent additional contacts that are incidental to an ongoing contractual
relationship. Countering LFK, Plaintiff focuses on the worldwide territory-ofcoverage clause and the nature and extent of LFK’s activities in the actual defense of
Texo in the underlying action litigated in an Alabama court. Plaintiff contends that
this is enough to demonstrate purposeful availment. The court agrees with Plaintiff
based upon McGow.
In McGow, the Eleventh Circuit examined whether a territory-of-coverage
clause in an insurance policy amounted to purposeful availment for purposes of
subjecting the insurer to suit in the coverage territory. See 412 F.3d at 1214.
Following the reasoning of the Fourth, Sixth, Eighth, and Ninth Circuits, the Eleventh
13

Circuit answered in the affirmative, agreeing that presumably an insurer receives
higher premiums for providing broad territorial coverage and that an insurer desiring
to avoid suit in the forum state need only include that state in a policy territory
exclusion. See id. at 1215 (citing Rossman v. State Farm Mut. Auto. Ins. Co., 832
F.3d 282, 287 (4th Cir. 1987)); see also Ferrell v. West Bend Mut. Ins. Co., 393 F.3d
786, 791 (8th Cir. 2005) (observing that the insurer “presumably offered a broad
‘coverage territory’ in order to make its policies more marketable and profitable”).
Based upon this rationale, the Eleventh Circuit concluded that the insurer
purposefully availed itself of the privileges in the state of Georgia. By including the
state of Georgia as a covered territory, the insurer “purposefully sought to provide
coverage for accidents occurring in Georgia, with full knowledge that litigation could
result and that [the insurer] could be haled into court in Georgia and required to make
payments in Georgia based on that coverage.”

McGow, 412 F.3d at 1215.

Additionally, the insurer “purposefully included Georgia in its coverage territory in
order to charge higher premiums.” Id.
Here, LFK’s policy issued to Texo included a worldwide territory-of-coverage
provision without a territorial limitation. That inclusion necessarily meant that
Alabama was a covered territory, and at no time has LFK denied that this territory-ofcoverage clause included Alabama. (See, e.g., Lars Gustafson’s Dep. 22 (affirming
14

that the policy’s worldwide territory-of-coverage provision contained no “exclusion
just based on the fact that the accident occurred in Alabama”).) LFK also has not
disputed that the purpose of the insurance policy was to protect Texo from the
consequences of lawsuits brought against it anywhere in the world. And it can be
presumed that LFK was able to assess premiums at a higher rate for LFK’s increased
risk in insuring a broad geographic area. LFK has “indicated its willingness” to
litigate in Alabama by contractually obligating itself to defend its insured against
certain claims arising from Texo’s activities in Alabama. Rossman, 832 F.2d at 286.
In other words, the “expectation of being haled into court in [Alabama] [was] an
express feature of its policy.” Id.
LFK not only included Alabama in the policy’s territory coverage, but also
played a pivotal part in orchestrating the defense in the underlying action.
Specifically, LFK provided Texo a defense in the underlying action in an Alabama
court, funded the litigation by paying Texo’s attorney’s fees, made strategic decisions
about settlement and trial strategy, asserted defenses under Alabama law, made the
decision to deny indemnity coverage for any part of the $5.25 million Alabama
verdict, and based that denial on Alabama’s statutory classification of damages as
punitive only.

15

LFK seeks to distance itself from the Alabama litigation by hiding behind
Länsförsäkringar AB whom LFK hired to manage the Alabama litigation, but LFK
ignores agency principles that are relevant in the personal jurisdiction analysis. See
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 n.22 (1985) (recognizing for
purposes of personal jurisdiction that commercial activities performed on a party’s
behalf “may sometimes be ascribed to the party”); see also Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 55–60 (1st Cir. 2002) (agent’s acts
may be attributed to principal for jurisdictional purposes when, under standard agency
principles, agent is authorized to act on behalf of principal or principal ratifies agent’s
conduct). LFK has not refuted the existence of an agency relationship between it and
Länsförsäkringar AB.

LFK has offered no reason at this juncture why

Länsförsäkringar AB’s contacts should not be imputed to LFK based upon an actual
or apparent agency relationship between these two entities; hence, its argument that
its only contacts with Alabama are due to the unilateral activities of a third party (i.e.,
Länsförsäkringar AB) is unavailing.
Accordingly, LFK has purposefully availed itself of the privileges of
conducting activities in Alabama. In doing so, LFK “received the benefits and
protection of the laws of the state.” Int’l Shoe, 326 U.S. at 320.

16

c.

Reasonable Anticipation of Being Haled into an Alabama Court

In McGow, the Eleventh Circuit held that the insurer “reasonably should have
foreseen being haled into court in Georgia because its policy covered the entire
United States” and also observed that the “expectation of being haled into court in a
foreign state [was] an express feature of its policy.” 412 F.3d at 1215 (internal
citation and quotation marks omitted). The court does not question LFK’s assertion
that Texo is the first insured in LFK’s 210-year history to make a claim arising from
activities in the United States. This apparent rarity does not negate, however, the
reasonable foreseeability of suit in Alabama, as McGow’s holding focused on the
insurer’s affirmative act of including the forum state as a covered territory, see id., not
on the probability that a claim actually would arise from an accident occurring in a
covered forum. Here, because Alabama is within the territory-of-coverage clause in
the policy between LFK and Texo, LFK should have been aware that Texo’s activities
could have resulted in an accident in Alabama and that LFK may have to litigate
issues arising from its contractual obligations under the policy in an Alabama court.
2.

Traditional Notions of Fair Play and Substantial Justice

The second part of the federal due process analysis requires a court’s exercise
of personal jurisdiction to comport with traditional notions of fair play and substantial
justice. In Sloss Industries, the Eleventh Circuit explained that in measuring the
17

fairness of the exercise of personal jurisdiction over a foreign defendant, courts
should weigh (1) the burden on the defendant, (2) the forum state’s interest in
adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and
effective relief, (4) interests of the judicial systems of the United States and the
foreign country in obtaining the most effective resolution, and (5) shared interests of
the United States and the foreign country in furthering fundamental substantive
policies. See 48 F.3d at 933.
LFK’s brief devotes less than two pages to discussion of fair play and
substantial justice and focuses only on a single factor: the burden on LFK in
litigating in Alabama. LFK argues that it would be a “great inconvenience” and a
“heavy burden” on LFK to litigate in Alabama. (Doc. # 44, at 27–28.) Undoubtedly,
there will be some burden on LFK, a Swedish company, to defend this action in an
Alabama court. LFK cites no authority, however, establishing that this burden alone
on a foreign defendant is enough to offend traditional notions of fair play and
substantial justice. This is particularly so given that, based upon application of
McGow, LFK has indicated its amenability to suit in this state by extending coverage
for Texo for its activities in Alabama. Moreover, in light of the fact that LFK already
has provided a defense to Texo in the underlying action filed in an Alabama court
pursuant to the insurance contract, the additional burden of requiring LFK to come
18

to Alabama to litigate claims arising out of LFK’s contractual obligations under the
policy seems reasonable and minimal.
In its reply brief, LFK has attempted to differentiate McGow on the ground that
McGow involved an uninsured motorist insurance policy and this action involves a
general liability policy. (Doc. # 62, at 10.) The emphasis in McGow was on a
territory-of-coverage clause’s inclusion in an “insurer’s policy,” not on the type of
policy. Agreeing with the rationale of four sister circuits that had examined the effect
of an insurance policy’s territory-of-coverage clauses on the personal jurisdiction
analysis, the McGow court did not distinguish the Eighth Circuit decision, for
example, on the ground that it involved a commercial general liability policy. See
McGow, 412 F.3d at 1214–15 (citing Ferrell, 393 F.3d at 791). Based upon McGow,
LFK’s proffered distinction is not convincing.
As a final matter, LFK relies on OMI Holdings, Inc. v. Royal Ins. Co. of
Canada, 149 F.3d 1086 (10th Cir. 1998), for the proposition that when an insurance
company’s contact with the forum state is based solely on a territory-of-coverage
clause, the contact is “qualitatively low on the due process scale,” if the contact
counts at all. Id. at 1095; (Doc. # 62, at 13.) LFK’s argument ignores McGow’s
unfavorable critique of the OMI Holdings decision. McGow disagreed with the Tenth
Circuit’s “hesitance to extend personal jurisdiction to an insurer based purely on the
19

territory-of-coverage clause” and constructively criticizes OMI Holdings’ reasoning.
See McGow, 412 F.3d at 1216 n.5 (citing OMI Holdings, 149 F.3d at 1093–95).
LFK’s reliance on OMI Holdings, therefore, is unpersuasive.
In sum, LFK relies only on one of the five Sloss Industries factors and ignores
the remaining factors. The court will not formulate arguments for LFK that it has
declined to make, and new arguments and a shift in strategy presented for the first
time in a reply brief come too late. See Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir.1995) (“There is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it.”).
LFK further fails to distinguish McGow in a meaningful way, and McGow has
rejected the reasoning of the Tenth Circuit decision upon which LFK relies. On this
record, LFK has not established a “compelling case” that the court’s exercise of
personal jurisdiction offends traditional notions of fair play and substantial justice.
Burger King, 471 U.S. at 477.
B.

Forum Selection Clause
In the Eleventh Circuit, a forum selection clause is “presumptively valid where

the underlying transaction is fundamentally international in character.” Lipcon, 148
F.3d at 1295. Only a “clear showing that the clause[ ] [is] unreasonable under the
circumstances” will overcome this presumption of validity. Id. (citations and internal
20

quotation marks omitted). A forum selection clause is unreasonable where “the
chosen law would deprive the plaintiff of a remedy,” Krenkel v. Kerzner Int’l Hotels
Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009), or where “‘enforcement would contravene
a strong public policy of the forum in which suit is brought, whether declared by
statute or by judicial decision.’” Estate of Myhra, 2012 WL 4207303, at *4 (quoting
The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). The party resisting
enforcement of a forum selection clause bears the burden of “clearly show[ing] that
enforcement would be unreasonable and unjust . . . .” The Bremen, 407 U.S. at 15.
The forum selection clause, which includes a choice-of-law provision,
provides: “Disputes regarding the interpretation or application of this insurance
policy of issues related to contractual relationship shall be determined according to
Swedish law in Swedish courts.” (Ex. B to Doc. # 45.) Plaintiff argues that
enforcement of the forum selection clause would limit LFK’s liability in a manner
(1) that would deprive Plaintiff of a remedy for his claims in this action, given the
unique remedial scheme under the Alabama Wrongful Death Act, and (2) that would
violate Alabama’s public policy against enforcing insurance contracts that exclude

21

the recovery of punitive damages in actions implicating the Alabama Wrongful Death
Act. (Doc. # 59, at 17.) For the reasons to follow, the court agrees.9
The Alabama Wrongful Death Act “‘allow[s] the recovery of punitive damages
only.’” Hill v. Campbell, 804 So. 2d 1107, 1109 (Ala. Civ. App. 2001) (quoting
Campbell v. Williams, 638 So. 2d 804 (Ala. 1994)). For that reason, the Hill court
recognized that “[a] standard liability policy that excluded coverage for punitive
damages in a wrongful-death case would contravene Alabama law.” Id.; see also
Alabama Attorney General Opinion 2 (Feb. 1, 1978) (“[A]ny administrative ruling
which allowed insurance companies to exclude coverage for punitive damages under
standard liability policies would be in direct contravention of wrongful death case law
on the subject, and would therefore be void as against public policy of [the State of
Alabama] as well.”). Based upon this authority, Alabama has a strong public policy
interest in preventing insurance companies from enforcing a policy’s punitive
damages exclusion for claims brought under the Alabama Wrongful Death Act.
Here, in the underlying action, Plaintiff (wearing his first litigation hat)
recovered a judgment against Texo for $5.25 million in punitive damages under the
Alabama Wrongful Death Act. The Act’s classification of damages as punitive

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Because these issues are dispositive, it is unnecessary to address Plaintiffs’ other
arguments for invalidating the forum selection clause.
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appears to be the sole reason why LFK declined settlement, proceeded to trial, and
refused to indemnify its insured, Texo, for any portion of the underlying judgment.
To enforce the forum selection clause would permit a Swedish court to apply Swedish
law to decide whether LFK, which has provided coverage to its insured for activities
occurring in Alabama, can rely on a punitive damages exclusion to avoid indemnity
coverage for a punitive damages judgment entered against its insured under the
Alabama Wrongful Death Act.
Enforcement of the foreign forum selection clause will result in a Swedish
court deciding this case based upon application of Swedish law (by operation of the
choice-of-law provision), not based upon application of Alabama law. This choiceof-law provision distinguishes this case from Rucker v. Oasis Legal Finance L.L.C.,
upon which LFK relies. See 632 F.3d 1231, 1237 (11th Cir. 2011). In Rucker, it is
true that forum selection clause was enforced; however, the Eleventh Circuit deemed
it significant that the contractually chosen forum “would apply Alabama law” and,
thus, “would give proper deference to . . . Alabama precedent.” Id.; see also id.
at 1234 (Choice of law provision provided that the purchase agreement would be
governed by the Alabama law). No indication has been given that Alabama’s law or
policies will play any role in the decision in the Swedish courts. Indeed, not even
Professor Michael Bogan ventures to comment on this topic. (See, e.g., Prof.
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Bogan’s Legal Op. 2 (“This opinion . . . does not address . . . whether [under Swedish
law] the insurance policy’s exclusion of punitive damages shall be interpreted to
include the present claim for punitive damages.” (Doc. # 59)).) On this record,
Plaintiff has made the required showing that enforcement of the forum selection
clause would deprive Plaintiff of a remedy and would contravene Alabama’s strong
public policy interest against enforcing insurance contracts that exclude the recovery
of punitive damages in actions implicating the Alabama Wrongful Death Act.
V. CONCLUSION
For the foregoing reasons, the court previously denied Defendant LF
Kronoberg’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction and
Rule 12(b)(3) motion to dismiss for improper venue. This court properly exercises
personal jurisdiction over LFK, and the forum selection clause is not enforceable.
DONE this 23rd day of October, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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