SMITH v. PROGRESSIVE SPECIALTY INSURANCE COMPANY

Filing 14

MEMORANDUM ORDER denying 8 Motion to Remand. Signed by Judge Terrence F. McVerry on 05/29/15. (mcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCINE SMITH,
Plaintiff,
v.
PROGRESSIVE SPECIALTY INSURANCE
COMPANY,
Defendant.

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MEMORANDUM ORDER
Pending before the Court is a MOTION TO REMAND (ECF No. 8) filed by Plaintiff
Francine Smith, with a brief in support (ECF No. 10).

Defendant Progressive Speciality

Insurance Company (“Progressive”) has filed a brief in opposition (ECF No. 11). The motion is
ripe for disposition.
Plaintiff commenced this action on March 23, 2015 by filing a Complaint against her
automobile insurance carrier, Progressive, in the Court of Common Pleas of Allegheny County,
Pennsylvania, alleging state law claims for breach of contract and bad faith relative to an
underinsured motorist claim. On April 22, 2015, Progressive timely removed the action to the
United States District Court for the Western District of Pennsylvania, invoking this Court’s
diversity-of-citizenship jurisdiction. The instant motion followed.
The insurance policy drafted by Progressive and issued to Plaintiff contains the following
forum selection clause: “LEGAL ACTION AGAINST US . . . Any action brought against us
pursuant to coverage under Part III – Uninsured/Underinsured Motorist Coverage must be
brought in the county in which the person seeking benefits resides, or in the United States
District Court serving that county.” (ECF No. 1-3 at 49) (emphasis added). Plaintiff now

claims that, under the forum selection clause, Progressive has waived its right to remove this
action. The Court cannot agree.
In Foster v. Chesapeake Insurance Company, the United States Court of Appeals deemed
the following language to constitute a waiver of the defendant’s right to remove:
In the event the [defendant] is not domiciled in the United States of America, and
the [defendant] fails to pay any amount claimed to be due hereunder, the
[defendant], at the request of the [plaintiff], will submit to the jurisdiction of any
court of competent jurisdiction within the United States and will comply with all
requirements necessary to give such court jurisdiction; and all matters arising
hereunder shall be determined in accordance with the law and practice of such
court.
933 F.2d 1207, 1216 (3d Cir. 1991). The court of appeals reasoned that “by consenting to
‘submit’ to ‘any court’ of competent jurisdiction ‘at the request of the Company,’ and to comply
with all requirements necessary to give ‘such court ‘ jurisdiction, [the defendant] agreed to go to,
and stay in, the forum chosen by [the plaintiff].”

Id. at 1216-17 (emphasis in original).

Following this decision, federal district courts in the Third Circuit have considered and rejected
the argument presented by Plaintiff. See Munich Welding, Inc. v. Great Am. Ins. Co., 415 F.
Supp. 2d 571, 574 (W.D. Pa. 2006); see also Craker v. State Farm Mut. Auto. Ins. Co., No.
CIV.A. 11-0225, 2011 WL 1671634, at *1 (W.D. Pa. May 3, 2011).
Here, as in those cases, the policy does not state that Progressive contracted to “submit”
to the jurisdiction chosen by Plaintiff. It also does not indicate that Progressive consented to
litigate this matter in “any court” at the request of Plaintiff. And it does not include any
agreement for Progressive to comply with certain requirements necessary to give a particular
court jurisdiction. Rather, it provides that a suit may be brought in the county in which the
person seeking benefits resides (i.e., Allegheny County) or in the United States District Court
serving that county (i.e., the Western District of Pennsylvania).

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Progressive meets the

jurisdictional requirements to invoke this Court’s diversity jurisdiction, and therefore, the Court
has no basis to remand this action in the absence of a valid contractual waiver. Accordingly, the
motion to remand is DENIED.
SO ORDERED, this 29th day of May, 2015.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:

Anthony J. Erlain
Email: [e-mail]
Daniel J. Twilla
Email: [e-mail]
Jeffrey A. Ramaley
Email: [e-mail]

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