Windover Construction, Inc. v. Selective Insurance Company of America

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 22-11365-RGS

WINDOVER CONSTRUCTION, INC.,

v.

COSAN CONSTRUCTION CORP., ICI FLOORING, INC.,

MERCHANTS MUTUAL INSURANCE CO., and

SELECTIVE FIRE AND CASUALTY INSURANCE COMPANY

MEMORANDUM AND ORDER ON

MOTIONS TO DISMISS AND CROSS-MOTIONS

FOR JURISDICTIONAL DISCOVERY

December 8, 2022

STEARNS, D.J.

Plaintiff Windover Construction, Inc. (Windover) filed this action

against defendants Cosan Construction Corp. (Cosan), ICI Flooring, Inc.

(ICI), Merchants Mutual Insurance Co. (Merchants), and Selective Fire and

Casualty Insurance Company (Selective),1 seeking to recoup damages caused

by Cosan’s and ICI’s alleged negligent performance of subcontract work at a

construction project in New Jersey. As relevant here, Windover accuses

1 The Complaint (Dkt # 9 at 1-23) incorrectly names several

defendants. For the purposes of this Order, the court will use the names

reported by the parties in their corporate disclosure statements and motions

to dismiss.

Cosan’s insurer, Merchants, and ICI’s insurer, Selective, of engaging in

unfair settlement practices in violation of Mass. Gen. Laws ch. 176D, § 3, and

Mass. Gen. Laws ch. 93A, §§ 2, 11, in response to its requests for

indemnification. Merchants and Selective move to dismiss for lack of

personal jurisdiction and failure to state a claim. For the following reasons,

the court will ALLOW the motions.

BACKGROUND

Windover is a Massachusetts corporation with a principal place of

business in Massachusetts. From at least 2018 through 2019, it served as the

general contractor for a construction project known as Valley Brook Village

Phase II in Lyons, New Jersey (the Project).

On July 13, 2018, Windover subcontracted with ICI, a New Jersey

corporation with a principal place of business in New Jersey, to “[p]erform

all Flooring work” for the Project. Windover-ICI Subcontract (Dkt # 39 at

41-83) ¶ 3. The subcontract required ICI to maintain general liability

insurance and to name Windover as an additional insured on the policy.

Selective, a New Jersey corporation with a principal place of business in New

Jersey, issued ICI’s general liability insurance policy for the relevant period.

On June 20, 2019, Windover subcontracted with Cosan, a New York

corporation with a principal place of business in New York, to perform

gypcrete concrete subflooring work for the Project. Windover’s subcontract

with Cosan, like its subcontract with ICI, required Cosan to maintain general

liability insurance and to name Windover as an additional insured on the

policy. Merchants, a New York corporation2 with a principal place of

business in New York, issued Cosan’s general liability insurance policy for

the relevant period.

In 2019, Cosan and ICI performed the contracted-for work. Less than

two years later, in early 2021, the Project’s owner notified Windover of

widespread failure of the gypcrete concrete installed by Cosan and the

flooring installed by ICI. Windover incurred $692,295 in damages repairing

the defects. Windover promptly notified Cosan, ICI, and their respective

insurers of the damage and requested additional insured coverage and

indemnification for the claim. Defendants’ unresponsiveness forms the basis

of Windover’s suit.

DISCUSSION

The court may exercise personal jurisdiction over Merchants and

Selective only if Windover demonstrates that “it is permissible under both

2 Although the parties originally identified Merchants as a Delaware

corporation, counsel for Merchants has since indicated it is a New York

corporation. Windover does not appear to dispute that New York is the

correct state of incorporation.

the forum state’s long-arm statute and the Due Process Clause of the United

States Constitution.” Bluetarp Fin., Inc. v. Matrix Constr. Co., Inc., 709 F.3d

72, 79 (1st Cir. 2013). Because the court has not held an evidentiary hearing,

it will apply the prima facie standard to assess jurisdiction. “Under the prima

facie standard, the inquiry is whether the plaintiff has proffered evidence

which, if credited, is sufficient to support findings of all facts essential to

personal jurisdiction.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.

2008).

A. General Jurisdiction

Merchants is a New York corporation with its principal place of

business in New York. Selective is a New Jersey corporation with its

principal place of business in New Jersey. Windover maintains that,

although neither corporation is organized under the laws of Massachusetts

or operates its principal place of business in this state, the court may

nonetheless exercise general jurisdiction over Merchants and Selective

because the insurers have “continuous and systematic” contacts with

Massachusetts. Opp’n to Selective’s Mot. to Dismiss (Dkt # 41) at 7, 8; Opp’n

to Merchants’ Mot. to Dismiss (Dkt # 34) at 9, 10. In support, Windover

relies on the following contacts: (1) Selective and an entity related to

Merchants (Merchants National Insurance Company) are both licensed

insurers in Massachusetts; (2) per a New York state report, roughly 7% of

Merchants’s direct written premiums are written in Massachusetts; (3)

Selective maintains a physical office in Massachusetts; and (4) Windover was

added as an additional insured on the Merchants and Selective insurance

policies.

Even accepting as true the nature and extent of the contacts alleged by

Windover, the court does not find the requirements for general jurisdiction

met. As the Supreme Court explained in Daimler AG v. Bauman, 571 U.S.

117 (2014), the inquiry for general jurisdiction purposes “is not whether a

foreign corporation’s in-forum contacts can be said to be in some sense

‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with

the State are so “continuous and systematic” as to render [it] essentially at

home in the forum State.’” Id. at 138-139, quoting Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); see also Mass. Gen.

Laws ch. 223A, § 2 (allowing the exercise of jurisdiction where, inter alia, a

person is “domiciled in” Massachusetts). Windover offers no support for the

proposition that merely obtaining licensure to operate within a state or

issuing some policies within that state is, by itself, sufficient to render the

insurer “at home” in that forum, and the court declines to find Merchants or

Selective “at home” in Massachusetts in the absence of additional contacts.

To hold otherwise would turn the principles governing general jurisdiction

on their head.

B. Specific Jurisdiction

Windover asserts specific jurisdiction under several prongs of the

Massachusetts long-arm statute. But the Massachusetts long-arm statute,

like the demands of constitutional due process, requires at base that a

plaintiff’s claims “aris[e] from” defendant’s contacts with the state. See

Mass. Gen. Laws ch. 223A, § 3; see also Baskin-Robbins Franchising LLC v.

Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir. 2016) (“Specific jurisdiction

allows a court to hear a particular case as long as ‘that case relates sufficiently

to, or arises from, a significant subset of contacts between the defendant and

the forum.’”), quoting Phillips Exeter Acad. v. Howard Phillips Fund, Inc.,

196 F.3d 284, 288 (1st Cir. 1999). And for a claim to “arise from” a

defendant’s contacts with the state, it is not enough for the plaintiff to merely

feel harm in a particular forum. See A Corp. v. All Am. Plumbing, Inc., 812

F.3d 54, 59-60 (1st Cir. 2016). Instead, “[t]he proper question is not where

the plaintiff experienced a particular injury or effect but whether the

defendant’s conduct connects him to the forum in a meaningful way.”

Walden v. Fiore, 571 U.S. 277, 290 (2014).

Windover has not shown that its claims “arise from” any conduct of

Merchants and Selective in Massachusetts. At best, Windover alleges that

Merchants and Selective allowed Cosan and ICI to add Windover, a

Massachusetts corporation, as an additional insured on their policies and

then responded to Windover’s subsequent request for indemnification under

those policies. But Merchants and Selective did not themselves contract with

Windover, and the risk to be insured – the Project – was located in New

Jersey, not Massachusetts. Nothing connects the response (or lack thereof)

of Merchants and Selective to Windover’s indemnification request to

Massachusetts in any meaningful way.

C. Jurisdictional Discovery

To the extent that Windover seeks jurisdictional discovery, the court

denies its motion. Windover fails to offer any explanation of what additional

evidence it hopes to uncover to tie Merchants and Selective to Massachusetts

as a forum. See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 626

(1st Cir. 2001). The absence of any indication that jurisdictional discovery

will reveal evidence supporting a colorable claim of jurisdiction in

Massachusetts dooms Windover’s request.

D. Transfer

The court denies Windover’s request to transfer the case to the District

of New Jersey rather than dismiss. As Windover itself acknowledges, the

statute of limitations has not run for its claims, so nothing prevents

Windover from filing a new suit in New Jersey asserting its claims.

ORDER

For the foregoing reasons, Windover’s claims against Merchants and

Selective are dismissed for lack of personal jurisdiction. This dismissal is not

an adjudication on the merits and thus is without prejudice.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE