LIBERTY SURPLUS INSURANCE CORPORATION v. AXA INSURANCE COMPANY et al

Filing 60

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR LEAVE TO SEEK JURISDICTIONAL DISCOVERY IS GRANTED IN PART AND DENIED IN PART. DEFENDANT AXA CORPORATE SOLUTIONS ASSURANCE S.A., INC.S MOTION TO DISMISS SHALL BE STAYED DURING THE PENDENCY OF DISCOVERY; ETC.. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 10/10/17. 10/11/17 ENTERED AND E-MAILED, MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LIBERTY SURPLUS INSURANCE
CORPORATION,
v.

AXA INSURANCE COMPANY and
AXA CORPORATE SOLUTIONS
ASSURANCE, S.A., et al.

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CIVIL ACTION

No. 16-4977

MEMORANDUM AND ORDER
DITTER, J.

October 10, 2017

This case involves an insurance company’s claim that other insurers should bear a
proportional share of an insured’s loss. It comes before me on a motion for jurisdictional
discovery. I shall grant the motion in part and deny it in part.
A brief review of the facts will be helpful.
Ardagh US is one of a family of companies whose parent, Ardagh Global, is based
in Luxemburg. AXA CS issued to Ardagh Global a policy providing global excess
coverage above local, primary policies. This policy covered Ardagh Global’s subsidiary
companies including Ardagh US.
Ardagh US is a Delaware corporation headquartered in Pennsylvania that
manufactures metal containers. In the course of its business, Ardagh US provided
defective cans to a company that sold tuna. As a result of the defect, the product had to be
recalled causing heavy losses to the tuna company and thus to Ardagh US.

Liberty Surplus had issued a product recall insurance policy to Ardagh US. AXA
US had issued a policy for commercial liability as well as a commercial liability umbrella
policy to Ardagh US. Ardagh US made a claim to Liberty Surplus, which acknowledged
coverage and paid an amount in excess of $75,000. Ardagh US also forwarded a claim to
AXA US which denied coverage based on exclusions in its policy. Ardagh US did not
submit a claim to AXA CS.
In this present action, Liberty Surplus seeks a declaration that Ardagh US’s loss was
also covered by the policies issued by AXA US and AXA CS. AXA CS has moved to
dismiss on the grounds that this court lacks jurisdiction. Liberty Surplus countered with a
motion for leave to take jurisdictional discovery on the issue of personal jurisdiction.
The Third Circuit has made jurisdictional discovery broadly available for personal
jurisdiction disputes and deemed it “particularly appropriate where the defendant is a
corporation.” Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 336 (3d Cir. 2009)
(citing Compagnie Des Bauxites de Guinee v. L’Union Atlantique S.S. d’Assurances, 723
F.2d 357, 362 (3d Cir. 1983). I will grant Liberty Surplus’s motion as it pertains to AXA
CS, but deny it as it pertains to AXA US. AXA US’s submission to jurisdiction in
Pennsylvania and its relationship to AXA CS have nothing to do with whether there is
jurisdiction over AXA CS. It follows that AXA US should be spared the expense and
bother of responding to discovery requests.1 In addition, Liberty Surplus should carefully
limit its proposed areas of discovery to be sure they deal with the question of personal
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To paraphrase one of Abraham Lincoln’s explanations, AXA US doesn’t have a dog in that fight.

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jurisdiction in Pennsylvania and not on the merits of its claim. Liberty Surplus has not
always been focused.
For example, in its memorandum supporting its motion seeking jurisdictional
discovery, Liberty Surplus lists eight areas of inquiry it wishes to pursue. The first one
seeks documents relating to both defendants’ issuance of insurance policies and AXA CS’s
using AXA US as its agent. Obviously these matters have nothing to do with jurisdiction in
Pennsylvania.
Areas four and five have nothing to do with jurisdiction over AXA CS in
Pennsylvania. Four asks about correspondence between AXA CS and AXA US regarding
Ardagh US’s claim while five seeks correspondence between AXA CS and Ardagh Global.
But enough. The fact that I have not mentioned the other areas proposed by Liberty
Surplus does not mean they would be approved but only they have been ignored, at least for
the time being.
Again the question is jurisdiction in Pennsylvania over AXA CS. Sixty days for ten
carefully framed interrogatories and three carefully planned depositions should be more
than enough time and inquiry to provide the facts for a determination of that issue.
An appropriate order follows.

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