D.F. Pray, Inc. v. Wesco Insurance Company

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22-P-734 Appeals Court

D.F. PRAY, INC. vs. WESCO INSURANCE COMPANY.

No. 22-P-734.

Suffolk. May 9, 2023. – September 14, 2023.

Present: Sacks, Shin, & D'Angelo, JJ.

Jurisdiction, Personal, Nonresident, Long-arm statute. Due

Process of Law, Jurisdiction over nonresident. Insurance,

Coverage. Practice, Civil, Waiver, Summary judgment.

Civil action commenced in the Superior Court Department on

August 9, 2016.

The case was heard by Catherine H. Ham, J., on a motion for

summary judgment.

Richard E. Briansky for the plaintiff.

Max W. Gershweir, of New York (William A. Schneider also

present) for the defendant.

SACKS, J. The dispositive question presented in this

insurance coverage dispute is whether the Superior Court erred

in ruling that it had personal jurisdiction over the defendant,

Wesco Insurance Company (Wesco), a Delaware corporation with a

principal administrative office in New York. The plaintiff

2

construction company, D.F. Pray, Inc. (Pray), a Rhode Island

corporation with a principal place of business in Massachusetts,

was an additional insured on a commercial general liability

policy that Wesco issued to one of Pray's subcontractors, a New

York corporation, covering (among other things) the

subcontractor's work on Pray's project in New York. Pray asked

Wesco to indemnify it for certain costs related to correcting

the subcontractor's faulty work on the project, but Wesco

refused. Pray then brought this action, and Wesco moved to

dismiss the complaint for lack of personal jurisdiction. A

judge (first motion judge) denied that motion, but a second

motion judge later allowed Wesco's motion for summary judgment

on the merits of the coverage dispute. Pray now appeals from

that judgment.

On appeal, Wesco renews its personal jurisdiction defense

and asks us to rule on that basis. We first conclude that,

contrary to Pray's argument, Wesco did not forfeit the defense

by later seeking summary judgment on the merits. We also

conclude that the first motion judge erred in rejecting the

defense. We therefore vacate the judgment and remand for the

3

entry of a new judgment dismissing the complaint, not on the

merits but instead for lack of personal jurisdiction over Wesco.1

Background. The material facts are undisputed for purposes

of this appeal. In January of 2014, Pray, as general contractor

on an office renovation project in New York, subcontracted the

drywall work to Xtreme Drywall & Acoustics, Inc. (Xtreme), a New

York corporation. The subcontract required Xtreme to indemnify

Pray for any losses caused by Xtreme's negligence (among other

things), and it included an insurance rider requiring Xtreme to

maintain a commercial general liability policy on which Pray

would be an additional insured.

In August of 2014, Xtreme applied to Wesco for one year of

commercial general liability coverage, to take effect on August

22, 2014, the date that Xtreme stated its coverage with another

carrier would expire. The application further stated that

Xtreme did all of its business in New York. The application

sought various "blanket additional insured" coverages, without

referring specifically to Pray or any other person or entity.

1 "A judgment is void if the court from which it issues

lacked personal jurisdiction over the defendant." Lamarche v.

Lussier, 65 Mass. App. Ct. 887, 889 (2006). "We address the

question of personal jurisdiction first because other issues are

obviously moot if the court is without power to adjudicate at

all." Akinci-Unal v. Unal, 64 Mass. App. Ct. 212, 215 (2005),

cert. denied, 547 U.S. 1206 (2006).

4

The application was not limited to any particular project in

which Xtreme was or might become engaged.

Wesco issued the policy, which included three "additional

insured" form endorsements. None of those endorsements

expressly named Pray as an additional insured or limited the

coverage to any particular project. Rather, two of the

endorsements, in the space provided for the names of additional

insureds, stated, "[b]lanket as required by written contract."2

The third endorsement amended the policy definition of the term

"[w]ho [i]s [a]n [i]nsured" to include "any person or

organization for whom you are performing operations when you and

such person or organization have agreed in writing in a contract

or agreement that such person or organization be added as an

additional insured on your policy."3

By September of 2014, Pray had encountered problems with

Xtreme's work.4 In February of 2016, Pray learned that Xtreme,

2 These were the endorsements for "Additional Insured --

Owners, Lessees or Contractors -- Scheduled Person or

Organization" and "Additional Insured -- Owners, Lessees or

Contractors -- Completed Operations."

3 This was the endorsement for "Additional Insured --

Owners, Lessees or Contractors -- Automatic Status When Required

in Construction Agreement with You -- Primary Insurance."

4 Specifically, Xtreme failed to supply sufficient personnel

to timely complete its work. Pray exercised its right to

complete the work and, in March of 2015, commenced an action

against Xtreme in Superior Court in the Commonwealth. Xtreme

5

in working on the project's twelve-story mechanical shaft, had

failed to include the three layers of drywall that Pray has

maintained were both contractually required and necessary to the

shaft wall's fire rating. To gain access to and repair the

work, Pray needed to demolish other portions of the building

adjacent to the shaft wall, including bathrooms, janitorial

closets, and kitchenettes. Pray thus notified Wesco that Pray

was making a claim for indemnification under the policy for what

it asserted was "property damage" caused by Xtreme's negligence.

Wesco, while not disputing that Pray was an additional insured,

denied the claim, asserting (among other things) that Pray

sought indemnification merely for an economic loss, not for

"property damage" caused by an "occurrence," as the policy

defined those terms.

Pray then brought this action, asserting claims for breach

of the insurance contract, declaratory relief, and unfair

settlement practices in violation of G. L. c. 93A.5 Wesco moved

defaulted, Pray moved for an assessment of damages, Wesco

intervened, and the case was stayed at Wesco's request pending

the outcome of this case. Xtreme was named as a party in

interest in this case but has not appeared.

5 Pray's claims were premised on Wesco's asserted direct

liability to Pray as an additional insured, as well as on

Wesco's responsibility as Xtreme's insurer to pay amounts for

which Xtreme was or might be found to be liable to Pray. On

appeal, Pray appears to rely only on its status as an additional

insured.

6

to dismiss the complaint for lack of personal jurisdiction,

among other grounds. See Mass. R. Civ. P. 12 (b) (2), 365 Mass.

754 (1974). After limited discovery directed to the

jurisdictional issue, Pray established as undisputed fact that,

as of 2016, for at least the preceding twelve years, Wesco had

been transacting business in the Commonwealth by providing

workers' compensation and general liability coverage to

commercial entities. Also as of 2016, Wesco had more than one

hundred licensed agents in Massachusetts and, in 2015, generated

approximately $30 million in direct insurance premiums in the

Commonwealth.6 Wesco's motion to dismiss was denied.

Wesco then filed an answer asserting lack of personal

jurisdiction as a defense. Wesco also asserted counterclaims

seeking declarations, based on various provisions of the policy,

that it had no duty to indemnify Pray for the damages sought in

the complaint. Wesco moved for summary judgment on Pray's

claims, asserting that Xtreme's faulty work did not qualify

under the policy as "property damage" caused by an "occurrence,"

and that the policy included multiple "[b]usiness [r]isk"

exclusions that precluded coverage for faulty work. The second

6 In addition, although the record does not reflect the

basis for doing so, the parties have treated as undisputed fact

that Wesco previously brought at least one declaratory judgment

action in Federal court in Massachusetts. The record is silent

about the nature of that action.

7

motion judge allowed that motion, but on a ground not asserted

by Wesco: that once Pray began to encounter problems with

Xtreme's work, Pray could foresee that Xtreme's further work

would be defective, meaning that the defective work was not an

"accident," and thus not an occurrence. Judgment entered

dismissing the case, and Pray appealed.

Discussion. 1. Forfeiture of personal jurisdiction

defense. We first dispose of Pray's argument that Wesco

forfeited its objection to personal jurisdiction by (a) filing

an answer that included counterclaims as well as the

jurisdictional defense and then (b) moving for summary judgment

on the merits, without simultaneously reasserting the

jurisdictional defense. An objection to personal jurisdiction

"may be waived by conduct, express submission, or extended

inaction." Lamarche v. Lussier, 65 Mass. App. Ct. 887, 889

(2006). Merely raising a defense of lack of personal

jurisdiction in an answer or other responsive pleading "may not

alone suffice to preserve that defense." American Int'l Ins.

Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109, 119, cert.

denied, 574 U.S. 1061 (2014). "If a party alleges a lack of

personal jurisdiction in an answer and then fails timely to

8

pursue the defense, a forfeiture of that defense may result."7

Id. Critically, however, a party who "raise[s] such a defense

in a responsive pleading may ensure its preservation by moving

to dismiss pursuant to rule 12 (b) (2) within a reasonable time,

prior to substantially participating in discovery and litigating

the merits of the case" (quotation and citation omitted). Id.

Here, Wesco did even more; it moved to dismiss pursuant to

rule 12 (b) (2) before filing its answer, let alone taking any

steps to litigate the merits. It follows that, once that motion

was denied, Wesco did not forfeit the defense by filing its

counterclaims or by seeking summary judgment on the merits. As

the Supreme Judicial Court has said in the related context of

quasi-in-rem jurisdiction, "a defendant who has unsuccessfully

challenged the court's jurisdiction over him may proceed to the

merits without waiving his right to appellate review of the

question of jurisdiction." Morrill v. Tong, 390 Mass. 120, 125

(1983). See Lamarche, 65 Mass. App. Ct. at 890, citing Walling

v. Beers, 120 Mass. 548, 550 (1876). See also Northern Laminate

Sales, Inc. v. Davis, 403 F.3d 14, 23 (1st Cir. 2005). Wesco

7The court explained that a personal jurisdiction defense

may be "waived" by failure to assert it, but where the defense

is initially raised, and then lost through action or inaction,

"the term 'forfeiture' is more appropriate" (citation omitted).

American Int'l Ins. Co., 468 Mass. at 110 n.2.

9

did just that, and so its jurisdictional defense is properly

before us.

2. Personal jurisdiction. Wesco is not a "resident" of

the Commonwealth,8 nor does Pray argue that Wesco's "in-state

contacts were sufficiently 'continuous and systematic' to

justify the exercise of general jurisdiction over claims

unrelated to those contacts." Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 925 (2011). See Exxon Mobil Corp.

v. Attorney Gen., 479 Mass. 312, 314 (2018), cert. denied, 139

S. Ct. 794 (2019); von Schönau-Riedweg v. Rothschild Bank AG, 95

Mass. App. Ct. 471, 482 (2019) (no claim that bank's "activities

in Massachusetts reach the volume required for an assertion of

general jurisdiction"). Therefore, "our inquiry in this case

concerns the exercise of specific jurisdiction," which "requires

an affiliatio[n] between the forum and the underlying

controversy" (quotation and citation omitted). Exxon Mobil

Corp., supra at 315.

"For a nonresident to be subject to the authority of a

Massachusetts court, the exercise of jurisdiction must satisfy

both Massachusetts's long-arm statute, G. L. c. 223A, § 3, and

8 "A business is a 'resident,' and therefore subject to the

forum's general jurisdiction, if the business is domiciled or

incorporated or has its principal place of business in the forum

State." Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 314

(2018), cert. denied, 139 S. Ct. 794 (2019).

10

the requirements of the due process clause of the Fourteenth

Amendment to the United States Constitution." Exxon Mobil

Corp., 479 Mass. at 314. "Because the long-arm statute imposes

specific constraints on the exercise of personal jurisdiction

that are not coextensive with the parameters of due process, and

in order to avoid unnecessary consideration of constitutional

questions, a determination under the long-arm statute is to

precede consideration of the constitutional question." SCVNGR,

Inc. v. Punchh, Inc., 478 Mass. 324, 325 (2017). "We review the

question of personal jurisdiction de novo." Sullivan v. Smith,

90 Mass. App. Ct. 743, 746–747 (2016). See Doucet v. FCA US

LLC, 492 Mass. 204, 207 (2023).

a. Long-arm analysis. The long-arm statute provides in

pertinent part as follows: "A court may exercise personal

jurisdiction over a person, who acts directly or by an agent, as

to a cause of action in law or equity arising from the person's

. . . (f) contracting to insure any person, property or risk

located within this commonwealth at the time of contracting."

G. L. c. 223A, § 3. The first motion judge ruled that this

clause "is applicable on its face." We agree.

More specifically, we agree that Wesco "contract[ed] to

insure [a] person . . . located within this commonwealth" --

i.e., Pray, which has its principal place of business here --

and that Pray's causes of action "aris[e] from" that contract of

11

insurance.9 G. L. c. 223A, § 3. We recognize, of course, that

Wesco did not contract directly with Pray. Instead, Wesco

contracted with Xtreme, a New York corporation, to insure Xtreme

and whatever entities might fall within the terms of any of the

"additional insured" form endorsements on the policy Wesco wrote

to Xtreme. But neither the language of clause (f), nor any case

cited by the parties, requires that an insurer have contracted

directly with a person in the Commonwealth in order for that

clause to apply. Relatedly, although Wesco argues that clause

(f) cannot apply because it did not "specifically" contract to

insure Pray, Wesco cites nothing in the statute, and no other

authority, to support such a limitation. The court has

repeatedly said that we are to examine whether "the literal

requirements of the statute are satisfied"; if so, we proceed to

the due process analysis. Tatro v. Manor Care, Inc., 416 Mass.

763, 767 (1994). See Exxon Mobil Corp., 479 Mass. at 318 n.4;

9 In the context of the long-arm statute's clause (b)

("contracting to supply services or things in this

commonwealth"), the court has "construe[d] the phrase 'in this

commonwealth' as referring to the place where the services or

things are to be supplied, rather than referring to the place of

the contracting." Droukas v. Divers Training Academy, Inc., 375

Mass. 149, 157 (1978). Wesco does not argue that any different

approach should apply under clause (f) or that Pray was not

located in the Commonwealth at the time Wesco contracted to

insure Xtreme (and thus, indirectly, Pray).

12

Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 6-7, 8

n.13 (1979). The literal requirements are satisfied here.10

Having concluded that clause (f) applies based on Wesco's

having contracted to insure a person located in the

Commonwealth, we need not determine whether, as the judge

concluded, it also applies on the ground that Wesco contracted

to insure a "risk" located here, G. L. c. 223A, § 3 (f), or

whether Wesco "contract[ed] to supply services or things in this

commonwealth," i.e., defense and indemnification, G. L. c. 223A,

§ 3 (b). "Since a finding of personal jurisdiction under any

one of the subsections of § 3 is sufficient to [support long-arm

jurisdiction], we need not consider whether jurisdiction might

also be conferred by virtue of [other subsections]." Good Hope

Indus., Inc., 378 Mass. at 2 n.3. See Bulldog Investors Gen.

Partnership v. Secretary of the Commonwealth, 457 Mass. 210, 215

(2010) (personal jurisdiction is statutorily "authorized when

one of the provisions of our long-arm statute . . . is

satisfied").

b. Due process analysis. "The due process analysis

entails three requirements. First, minimum contacts must arise

10 Had Wesco wished to limit how clause (f) applied to it,

Wesco could have written its endorsements more narrowly, e.g.,

to exclude persons or entities not specifically listed as

additional insureds or to exclude persons or entities then

located in the Commonwealth.

13

from some act by which the defendant 'purposefully avails itself

of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.'

Second, the claim must arise out of or relate to the defendant's

contacts with the forum. Third, 'the assertion of jurisdiction

over the defendant must not offend "traditional notions of fair

play and substantial justice."'" (Citations omitted.) Bulldog

Investors Gen. Partnership, 457 Mass. at 217, quoting Tatro, 416

Mass. at 772-773. See Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472, 474-478 (1985); Doucet, 492 Mass. at 210-211, 213,

217.

Addressing these three requirements in turn, we conclude

that, although Wesco has certain minimum contacts with

Massachusetts, Pray's claims do not sufficiently relate to those

contacts to satisfy the due process standards for personal

jurisdiction. We therefore need not decide whether the exercise

of jurisdiction would also be consistent with traditional

notions of fair play and substantial justice.

i. Purposeful availment. There is no doubt that Wesco, by

selling insurance policies in Massachusetts, has "purposefully

avail[ed] itself of the privilege of conducting activities

within the forum State" so as to give rise to minimum contacts

(citation omitted). Bulldog Investors Gen. Partnership, 457

Mass. at 217. As noted supra, as of 2016, for at least the

14

preceding twelve years, Wesco had been transacting business here

by providing insurance coverage to commercial entities. Also as

of 2016, Wesco had more than one hundred licensed agents here,

and in 2015, it generated approximately $30 million in direct

insurance premiums here.

ii. Relationship of contacts to claims. The difficulty

for Pray is that its claims do not "arise out of or relate to

[Wesco's] contacts with the forum." Bulldog Investors Gen.

Partnership, 457 Mass. at 217. "For a State to exercise

jurisdiction consistent with due process, the defendant's suit-

related conduct must create a substantial connection with the

forum State" (emphasis added). Walden v. Fiore, 571 U.S. 277,

284 (2014). See Bristol-Myers Squibb Co. v. Superior Court of

Cal., San Francisco County, 582 U.S. 255, 264 (2017) (rejecting

"sliding scale approach" under which "strength of the requisite

connection between the forum and the specific claims at issue is

relaxed if the defendant has extensive forum contacts that are

unrelated to those claims"); Goodyear Dunlop Tires Operations,

S.A.,, 564 U.S. at 930 n.6 ("even regularly occurring sales of a

product in a State do not justify the exercise of jurisdiction

over a claim unrelated to those sales"); Exxon Mobil Corp., 479

Mass. at 321 n.8.

We recognize that Wesco is generally in the business of

selling insurance policies in Massachusetts and elsewhere and

15

that Wesco has done substantial business here. Nevertheless,

the particular policy that Wesco sold to Xtreme, by which Wesco

contracted to insure Pray and which gave rise to Pray's claims,

was not sold in Massachusetts, not sold to a Massachusetts

resident, not related to a Massachusetts project, and not

otherwise related to Wesco's contacts with the Commonwealth.11

The burden is on Pray to establish the facts showing personal

jurisdiction, see Exxon Mobil Corp., 479 Mass. at 314, and Pray

has not shown that the insurance contract under which it claims

coverage has any connection whatsoever to the Commonwealth.12

11Looking more closely at the particulars of this

transaction does not assist Pray. Wesco is a Delaware

corporation with a principal administrative office in New York.

It sold a policy to Xtreme, a New York corporation that

assertedly does business only in New York. Xtreme's application

for the policy was prepared by a separate entity located in New

York and submitted by an insurance agent, also located in New

York, to an entity located in Pennsylvania that managed the

Wesco insurance program under which Xtreme sought coverage. So

far as the record reflects, after coverage was bound, the

Pennsylvania entity sent the policy electronically to the New

York agent, which would then have been responsible for

delivering the policy to Xtreme or its agent.

12Pray makes no argument that Wesco's activities in

Massachusetts had any relationship to the decision to purchase

the Wesco policy at issue, which in any event was a decision

made by Xtreme rather than Pray. Contrast Ford Motor Co. v.

Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017, 1023,

1028-1029 (2021) (manufacturer's efforts to foster and serve

vehicle markets in forum States supported exercise of personal

jurisdiction by those States, notwithstanding that particular

vehicles at issue were first sold elsewhere and arrived in forum

States only through later resales and relocations by consumers;

ultimate owners might never have bought vehicles, and thus suits

16

To be sure, Wesco contracted with Xtreme to cover

additional insureds such as Pray, and Pray in turn has a

principal place of business in the Commonwealth. But that does

not create a sufficient relationship between Wesco and the

Commonwealth, for two reasons.

First, the defendant's relationship with the forum State

must "proximately result from actions by the defendant himself

that create a 'substantial connection' with the forum State."

Burger King Corp., 471 U.S. at 475, quoting McGee v.

International Life Ins. Co., 355 U.S. 220, 223 (1957). "[The]

unilateral activity of another party or a third person is not an

appropriate consideration when determining whether a defendant

has sufficient contacts with a forum State to justify an

assertion of jurisdiction." Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984). Pray offered

no evidence that Wesco, when contracting with Xtreme, knew of

Xtreme's contract with Massachusetts-based Pray. Xtreme's act

of entering the contract with Pray does not constitute a contact

that Wesco created with Massachusetts.13 "The contacts must be

might never have arisen, but for manufacturer's contacts with

their home States).

13Relatedly, "[d]ue process limits on the State's

adjudicative authority principally protect the liberty of the

nonresident defendant -- not the convenience of plaintiffs or

third parties." Walden, 571 U.S. at 284. Accordingly, the

17

the defendant's own choice and not 'random, isolated, or

fortuitous.'" Ford Motor Co. v. Montana Eighth Judicial Dist.

Court, 141 S. Ct. 1017, 1025 (2021), quoting Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774 (1984).

Second, "[w]hat is needed -- and what is missing here -- is

a connection between the forum and the specific claims at

issue," Bristol-Myers Squibb Co., 582 U.S. at 265; the

connection must result from "the defendant's suit-related

conduct" (emphasis added), Walden, 571 U.S. at 284.14 See

Fletcher Fixed Income Alpha Fund, Ltd. v. Grant Thornton LLP, 89

Mass. App. Ct. 718, 722–723 (2016) (same). Wesco's suit-related

conduct -- its sale of a policy to Xtreme under which Pray

Court has "consistently rejected attempts to satisfy the

defendant-focused 'minimum contacts' inquiry by demonstrating

contacts between the plaintiff (or third parties) and the forum

State." Id. Although doubtless it would be more convenient for

the plaintiff, Pray, to litigate here, we must focus on the

defendant, Wesco, and Wesco's "suit-related conduct." Id. That

conduct occurred in New York, and perhaps in Pennsylvania, not

in Massachusetts.

14In Bristol-Myers Squibb Co., although the California

courts had jurisdiction of claims with substantial connections

to California, jurisdiction was held lacking with respect to

claims by other plaintiffs that were factually and legally

similar except that the relevant conduct and injuries occurred

in other States. Bristol-Myers Squibb Co., 582 U.S. at 264-265.

Here, that our courts would have jurisdiction of insureds' suits

against Wesco on policies with substantial connections to the

Commonwealth does not mean our courts necessarily have

jurisdiction of similar suits on policies that have little or no

such connection.

18

became an additional insured -- was an indirect contact with

Pray, attributable not to Wesco's "purposefully avail[ing]

itself of the privilege of conducting activities within" the

Commonwealth (citation omitted), Bulldog Investors Gen.

Partnership., 457 Mass. at 217, but to Xtreme's decision to work

for Massachusetts-based Pray. If Wesco's suit-related conduct

could be said to create any contact with the Commonwealth at

all, it was "too attenuated a contact to justify [the] exercise

of in personam jurisdiction."15 World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 299 (1980).

Matters might stand differently had the insurance policy

involved here been issued directly to and paid for by a

Massachusetts resident. Thus, in McGee, 355 U.S. 220, the

Supreme Court ruled that due process was not offended by a

California court's exercise of jurisdiction to hear a life

insurance beneficiary's suit against a Texas insurer "based on

15The first motion judge thought it significant that

Wesco's considerable Massachusetts insurance sales activity made

it "foreseeable to Wesco that it could be haled into court here

on a specific claim for coverage by an insured located in

Massachusetts," without acknowledging that the policy at issue

here was neither sold in Massachusetts nor sold to a

Massachusetts insured. The first motion judge also relied on

its being "reasonably foreseeable that defending this action in

Massachusetts might arise from Wesco agreeing to insure, as an

'additional insured,' a company located in Massachusetts." This

approach mistook indirect contact with a party from a forum

State for contact with the forum State itself.

19

[an insurance] contract which had substantial connection with

[California]." Id. at 223. Notwithstanding that the insurer

had "never solicited or done any insurance business in

California apart from the policy involved," id. at 222, it was

sufficient that "[t]he [insurance] contract was delivered in

California, the premiums were mailed from there and the insured

was a resident of that State when he died," id. at 223. But

here, unlike in McGee, Wesco did not deliver the policy to Pray

(let alone do so in Massachusetts), nor did Pray pay premiums to

Wesco (let alone do so from Massachusetts). And the principal

focus of the insurance contract was Xtreme's work in New York,

not any activity in Massachusetts.

Pray asserts that Wesco had suit-related contact with the

Commonwealth by "agreeing to defend Pray, a Massachusetts

resident, as an additional insured in an action in any state,

including Massachusetts." But this overstates the case. It is

true that the policy applies to property damage if caused by an

"occurrence" (defined in pertinent part as "an accident") that

takes place in the "coverage territory," and that the policy

includes a multiparagraph definition of "coverage territory"

that includes "[t]he United States of America (including its

territories and possessions), Puerto Rico and Canada." But all

of the cases Pray relies on for its coverage territory argument

20

found jurisdiction based on occurrences in the forum State

itself, a factor that is absent here.16

Accordingly, on this factual record -- which includes the

named insured Xtreme's representation to Wesco that it did

business only in New York -- we do not think the broad coverage

territory provision, in combination with the presence of a

blanket additional insured (Pray) in Massachusetts, adds

meaningfully to Wesco's suit-related contacts with

Massachusetts.17 To whatever extent it was foreseeable that

16The sole published decision upon which Pray relies,

Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d

911 (9th Cir. 1990), ruled that a court in Montana had

jurisdiction over a Canadian insurer whose insured was injured

in a car accident in Montana and brought suit in Montana. Id.

at 912, 913.

17Wesco's argument that the coverage territory clause is

insufficient relies heavily on Lexington Ins. Co. v. Hotai Ins.

Co., Ltd., 938 F.3d 874 (7th Cir. 2019). There, the court said

that a policy's "worldwide coverage" clause defined the

territorial scope of the insurers' obligation to an additional

insured, but did not "establish[] a purposeful connection

between the insurers and every American state, all of which

[were] included in the covered territory." Id. at 882. The

Lexington Ins. Co. court noted, however, that its conclusion

"might" have been different if the policy there at issue had

included a duty-to-defend clause. Id. Here, Wesco's policy

does include such a clause, but Pray has not addressed Lexington

Ins. Co. at all. We treat that decision as informative, but not

directly on point. Other such cases are Repwest Ins. Co. v.

Country-Wide Ins. Co., 166 A.D.3d 61, 66 (N.Y. 2018) (discussing

split in authority; holding that foreign insurer's territory of

coverage clause did not constitute sufficient contact with forum

State to support specific jurisdiction over insurer in case

arising out of automobile accident in that State); and KCHM,

Inc. v. Mid-Continent Cas. Co., 264 F. Supp. 3d 697, 700-702

21

Xtreme might add a Massachusetts entity like Pray as a blanket

additional insured, and that Pray might later sue Wesco in

Massachusetts, "'foreseeability' alone has never been a

sufficient benchmark for personal jurisdiction under the Due

Process Clause." World-Wide Volkswagen Corp., 444 U.S. at 295.

What is critical is whether "the defendant's conduct and

connection with the forum State are such that he should

reasonably anticipate being haled into court there." Id. at

297. Wesco's conduct in insuring Xtreme (and thus, indirectly,

Pray) did not create a sufficient connection with Massachusetts

to satisfy that standard.

iii. Traditional notions of fair play and substantial

justice. The third requirement of due process is that "the

assertion of jurisdiction over the defendant must not offend

traditional notions of fair play and substantial justice"

(quotation and citation omitted).18 Bulldog Investors Gen.

(E.D.N.C. 2017) (broad territory of coverage clause did not

suffice to establish personal jurisdiction over foreign insurer

in additional insured's action to resolve coverage dispute,

where only connection to forum State was that additional insured

was incorporated and had principal place of business in that

State).

"Thus courts in 'appropriate case[s]' may evaluate 'the

18

burden on the defendant,' 'the forum State's interest in

adjudicating the dispute,' 'the plaintiff's interest in

obtaining convenient and effective relief,' 'the interstate

judicial system's interest in obtaining the most efficient

resolution of controversies,' and the 'shared interest of the

22

Partnership, 457 Mass. at 217. But this requirement applies

only "[o]nce it has been decided that a defendant purposefully

established minimum contacts within the forum State," Burger

King Corp., 471 U.S. at 476, and such contacts must give rise to

or relate to the claims asserted, id. at 472. See Phillips

Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 288

(1st Cir. 1999) ("if the [party arguing for jurisdiction] clears

the first two hurdles, the court then must analyze the overall

reasonableness of an exercise of jurisdiction"). "An

affirmative finding on each of the three elements of the test is

required to support a finding of specific jurisdiction." Id.

Here, we have concluded that Wesco's contacts with

Massachusetts are unrelated to the claims in this case, and that

whatever indirect contact (if any) Wesco had with Massachusetts

related to Pray's claims is insufficient to satisfy due process.

It is therefore unnecessary to address whether the exercise of

jurisdiction by Massachusetts courts would comport with

traditional notions of fair play and substantial justice.19

several States in furthering fundamental substantive social

policies.'" Burger King Corp., 471 U.S. at 476-477, quoting

World-Wide Volkswagen Corp., 444 U.S. at 292.

19 Pray's request for appellate attorney's fees and costs is

denied.

23

Conclusion. The judgment is vacated, and a new judgment

shall enter dismissing the complaint for lack of personal

jurisdiction.

So ordered.