Jamison et al v. Depositors Insurance Company

Filing 25

MEMORANDUM AND ORDER - IT IS ORDERED that Defendant's Motion to Transfer Venue, (Filing No. 12 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NELLE JAMISON, JOHN PAUL
JAMISON,
4:14CV3009
Plaintiffs,
vs.

MEMORANDUM AND ORDER

DEPOSITORS INSURANCE COMPANY,
Defendant.
BACKGROUND
This matter is before the court on Defendant’s motion to change the venue of this
case to the United States District Court for the Western District of Wisconsin. (Filing
No. 12). For the reasons discussed below, the motion is denied.
Plaintiffs Nelle and Paul Jamison (the “Jamisons”) reside in Lancaster County,
Nebraska, but own real and personal property at 383 Mondamin Trail, La Pointe,
Wisconsin 54850 (the “Property”). The Jaminsons used the Property as a second home
and “generally visited the [Property] between July 1 and August 7 and, in some . . . years,
briefly in May, October and over Thanksgiving break.” (Filing No. 21-1, ¶8 at CM/ECF
p. 2). The Jamisons contacted INSPRO, Inc. in Lincoln, Nebraska to secure insurance for
the Property.

The insurance policy was issued by Depositors Insurance Company

(“Depositors”) through INSPRO, Inc.

(Filing No. 21-3, ¶11 at CM/ECF p. 2).

Depositors is an Iowa corporation with its principal place of business in Iowa. (Filing
No. 1, ¶8 at CM/ECF p. 2).
The Jamisons' insurance policy for the Property (the “Policy”) provides that “[a]ny
provision of this policy . . . that is in conflict with a Wisconsin statute or rule is hereby
amended to conform to that statute or rule.” (Filing No. 14, ¶11 at CM/ECF p. 2). The

policy also advises policy holders of their right to file any complaint regarding the policy
with the Wisconsin Commissioner of Insurance. (Filing No. 14, ¶12 at CM/ECF pp. 2-3).
On May 15, 2013, Nelle Jamison’s mother, Donna Woods, was visiting the
Property and discovered water damage. She promptly notified the Jamisons of the
damage. The damaged property was also viewed by Jon Hinrichs, Robert Norris and Dee
Norris – all residents of Lincoln, Nebraska. (Filing No. 21-1, ¶¶ 24-27 at CM/ECF p. 3).

On May 15, 2013, the Jamisons contacted Scott L. Wagner at INSPRO, Inc. in
Lincoln, Nebraska and notified him of the water damage to the Property. The Jamisons
received correspondence from Claims Associate Chad Cichosz from Depositors’ office in
Des Moines, Iowa. At some point, Chichosz inspected the Property. The property was
also inspected by Vieau Associates, Inc. from Edina, Minnesota; Castle Inspection
Service from Marshfield, Wisconsin; and ServiceMaster Corporation from Madeline
Island, Wisconsin. Eventually, the Jamisons received a denial letter from Depositors in
August of 2013. The denial was signed by Mike Stumberg, Large Loss Claims Manager
and was mailed from Grundy Center, Iowa. (Filing No. 21-2 at CM/ECF pp. 9-14).

Plaintiff filed this action in the District Court of Lancaster County, Nebraska
seeking declaratory relief to determine the parties' rights under the insurance policy and
asserting causes of action based on breach of contract and bad faith. (Filing No. 2).
Defendant removed the case to this court on January 16, 2013, (Filing No. 1), and now
moves to transfer venue to the United States District Court for the Western District of
Wisconsin.

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ANALYSIS

Section 1404(a) provides: For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought. When considering a motion to transfer under
section 1404(a), the court must balance:
(1) the convenience of the parties, (2) the convenience of the witnesses –
including the willingness of witnesses to appear, the ability to subpoena
witnesses, and the adequacy of deposition testimony, (3) the accessibility to
records and documents, (4) the location where the conduct complained of
occurred, and (5) the applicability of each forum state’s substantive law.
Terra Int’l, 119 F.3d at 696.
Terra Int’l identified a non-exclusive list of other factors a court may consider
when addressing the “interest of justice” factor in motions to change venue. These
include: 1) judicial economy, 2) the plaintiff's choice of forum; 3) the comparative costs
of litigating in each forum, 4) each party's ability to enforce a judgment, 5) obstacles to a
fair trial, 6) conflict of law issues, 7) and the advantages of having a local court determine
questions of local law. See Terra Int’l, 119 F.3d at 699 (citations omitted).

In addition to the general factors set forth in section 1404(a), courts will conduct a
"case by case evaluation of the particular circumstances at hand and consider all relevant
factors." Terra Int’l., Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 691 (8th Cir.
1997). "[F]ederal courts give considerable deference to a plaintiff’s choice of forum and
thus the party seeking transfer . . . typically bears the burden of proving that a transfer is
warranted." Id. at 695.

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Plaintiff’s Forum Selection.

Defendant argues Plaintiff’s selected forum is due very little, if any, deference
because the “events giving rise to the civil action occurred in the Western District of
Wisconsin.” (Filing No. 16 at CM/ECF p. 20). That is, the damaged Property is located
in the Western District of Wisconsin so Plaintiff’s choice of forum should not be given
much weight. It is true that a plaintiff’s choice of forum is entitled to less deference
when “(1) plaintiff does not reside in the selected forum . . . or (2) the transaction or
underlying facts did not occur in the chosen forum.” Nelson v. Soo Line R. Coo., 58 F.
Supp. 2d 1023, 1026 (D. Minn. 1999)(internal citations omitted). However, Defendant
misapplies this principle.

Although the Property and damage thereto occurred in

Wisconsin, this is a breach of contract action and the parties negotiated and entered into
the contract in Nebraska. And all communication regarding the terms of the contract and
the denial of coverage were sent to Plaintiffs at their Nebraska home.

This case is distinguishable from those cited by Defendant in support of its
argument that Plaintiffs’ choice of forum is not entitled to deference. For instance, in
Nelson, the court approved a change of venue from the District of Minnesota to the
District of North Dakota.

However, the Nelson plaintiff’s only connection with

Minnesota was that the plaintiff’s attorney was located there. Virtually all of the fact
witnesses, the site of the injury, both of the parties, and the people who treated the
plaintiff’s injuries were located in North Dakota. Nelson, 58 F. Supp. 2d at 1027.

In Dunn v. Soo Line R. Co., 684 F.Supp. 64 (N.D. Ill. 1994), another case relied
upon by defendant, the court ordered a change of venue from the Northern District of
Illinois to the Western District of Wisconsin. But in that case, the plaintiff was the
special administrator of the estate of a man who was fatally injured in a railroad accident
in Wisconsin. Although the decedent was a resident of Illinois, the accident occurred in

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Wisconsin and numerous witnesses who could testify about the accident and the
subsequent investigation also resided in Wisconsin. Other than being the decedent's state
of residence, Illinois had no connection to the lawsuit. Id. at 66-67.

The Jamisons are from Nebraska. They contacted an insurance agent, negotiated
and consummated the insurance contract at issue, and corresponded regarding the denial
of benefits while in Nebraska.

And as a basis for denying liability, Defendant asserts

Plaintiffs concealed or misrepresented facts regarding their use of the Property. (Filing
No. 5, ¶31 at CM/ECF p. 3). Presumably those alleged misrepresentations by Plaintiffs
originated and were communicated during the Policy application process in Nebraska.
Accordingly, because Nebraska has a connection to this lawsuit, the court will afford
deference to the Jamisons' choice of a Nebraska venue.

Convenience of the Parties.

Maintaining venue in Nebraska is undoubtedly more convenient for the plaintiffs
because they reside in Nebraska. Defendant is an Iowa corporation with its principal
place of business in Iowa. Defendant has not explained how a trial in Wisconsin would
be more convenient to it specifically. Rather, Defendant argues Wisconsin will be more
convenient for both parties because the Property is located in Wisconsin and there is a
“likelihood that additional inspection or testing of the Property may be required during
the course of litigation.” Filing No. 23 at CM/ECF p. 3. The court is not persuaded.

Currently, counsel for both parties reside in Nebraska. Defendant asserts transfer
of the trial will make it more convenient for Defendant to arrange additional inspections.
It is not clear why. Presumably Plaintiffs or Defendant can arrange for the inspection of
the property without being physically present.

And even if the trial is moved to

Wisconsin, with counsel for neither party located in Wisconsin, any Property inspection

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would likely be done without counsel being physically present or would require a special
trip by attorneys for both parties.

Although any individuals providing additional inspections might be in the
Wisconsin area, the court is not prepared to find Wisconsin as a more convenient place
for trial based on the pure speculation that additional inspections might be necessary.
Accordingly, the parties' convenience weighs in favor of denying a change of venue.

Convenience of the Witnesses.

Many of the fact witnesses, including the INSPRO employees who sold the
Plaintiffs' policy and the individuals who discovered the damage, reside in Nebraska. But
at least two witnesses who inspected the property reside in Wisconsin and Minnesota, and
they may be testifying witnesses. Additional witness, i.e. Defendant’s employees, likely
reside in Iowa. Based on the information before the court, a Nebraska or Wisconsin
forum are of essentially equal convenience (or inconvenience) for the potential witnesses.

Interests of Justice.

Defendant argues the interests of justice favor a transfer of venue because the
Western District of Wisconsin is more familiar with Wisconsin law and Wisconsin has an
interest in having this controversy decided in its state. Plaintiff argues that even if
Wisconsin law applies, this court can sufficiently interpret and apply Wisconsin law, and
Nebraska, along with its insurance regulators, has an interest in this case because the
insurance contract was negotiated, issued and renewed in Nebraska.

Assuming, without deciding, that this dispute is governed by Wisconsin law,
Defendant is correct that a Wisconsin court is more familiar with Wisconsin law.

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However, this court is fully capable of researching, interpreting and applying Wisconsin
law, particularly since neither party claims the case rests on resolving complex or novel
questions of Wisconsin law.

See Dakota Western Bank of North Dakota v. North

American Nutrition Co, Inc., 284 F. Supp. 2d 1232, 1236 (D.N.D. 2003).

Further, because the negotiations and sale of the policy occurred in Nebraska, the
state of Nebraska has at least as significant an interest in this dispute as Wisconsin. That
is, Nebraska certainly has an interest in overseeing the activities of insurance companies
that conduct business in the state of Nebraska. See Aviva Life and Annuity Co. v.
Goldstein, 722 F. Supp. 2d 1067, 1078 (S.D. Iowa 2010).

Accordingly,
IT IS ORDERED that Defendant’s Motion to Transfer Venue, (Filing No. 12), is
denied.

Dated this 22nd day of May, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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