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De Guinea v. Insurance Co.

decided as amended june 16 1981.: June 10, 1981.

COMPAGNIE DES BAUXITES DE GUINEA
v.
INSURANCE COMPANY OF NORTH AMERICA, THE INSURANCE CORPORATION OF IRELAND, LTD., MERCANTILE & GENERAL REINSURANCE CO., LTD., EAGLE STAR INSURANCE CO., LTD., HANOVER INSURANCE COMPANY, CONTINENTAL ASSURANCE COMPANY OF LONDON LTD., THE CENTURY INSURANCE CO., LTD., YUVAL, THE INSURANCE COMPANY OF ISRAEL LTD., HOME INSURANCE CO. LTD., SLATER, WALKER INSURANCE CO., LTD., YASUDA FIRE & MARINE INSURANCE CO. (UK) LTD., NICHIDO FIRE & MARINE INSURANCE CO LTD., TUREGUM INSURANCE COMPANY, SAHAR INSURANCE CO. LTD., EXCESS INSURANCE CO. LTD., TRIDENT INSURANCE CO. LTD., VESTA (UK) LTD., CHIYODA FIRE & MARINE INSURANCE CO. LTD., TOKYO, STRONGHOLD INSURANCE CO. LTD., BRITISH RESERVE INSURANCE CO. LTD., ENGLISH & AMERICAN INSURANCE CO. LTD., CONSOLIDATED DUROPEAN REINSURANCE CO. LTD. & L'UNION ATLANTIQUE S.A. D'ASSURANCES BRUSSELS, ALL BEING CORPORATIONS THE INSURANCE CORPORATION OF IRELAND, LTD., EAGLE STAR INSURANCE CO. LTD., HANOVER INSURANCE COMPANY, CONTINENTAL ASSURANCE COMPANY OF LONDON LTD., THE CENTURY INSURANCE CO. LTD., YUVAL, THE INSURANCE COMPANY OF ISRAEL LTD., HOME INSURANCE CO. LTD., SLATER, WALKER INSURANCE CO. LTD., YASUDA FIRE & MARINE INSURANCE CO. (UK) LTD., NICHIDO FIRE & MARINE INSURANCE CO. LTD., TUREGUM INSURANCE COMPANY, SAHAR INSURANCE CO. LTD., EXCESS INSURANCE CO. LTD., TRIDENT INSURANCE CO. LTD., VESTA (UK) LTD., CHIYODA FIRE & MARINE INSURANCE CO. LTD., TOKYO STRONGHOLD INSURANCE CO. LTD., BRITISH RESERVE INSURANCE CO. LTD., ENGLISH & AMERICAN INSURANCE CO. LTD., CONSOLIDATED EUROPEAN REINSURANCE CO. LTD. AND L'UNION ATLANTIQUE S.A. D'ASSURANCES, BRUSSELS, ALL BEING CORPORATIONS, APPELLANTS



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-1567)

Before Seitz, Chief Judge, and Aldisert and Gibbons, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

The question presented for review is whether the district court erred in enjoining the defendants from pursuing an action in England's High Court of Justice, Queens Bench Division, which sought to rescind excess insurance contracts covering business interruptions of a Delaware corporation doing business in an African country. A threshold inquiry requires us to decide if the district court had jurisdiction over the defendants. We conclude that the court properly exercised personal jurisdiction over eighteen of twenty-one insurance companies and reverse the grant of the injunction.

I.

This is an unfortunate case filed in the district court in 1975 which still admits of no resolution on the merits but bears the scars of over five years of pre-trial skirmishing.*fn1 The appellee, Compagnie des Bauxites de Guinea (CBG), a Delaware Corporation owned by Halco (Mining), Inc. (51%) and the Republic of Guinea (49%), mines and sells bauxite. CBG operates only in Guinea; it is not registered to do business in Pennsylvania and conducts no business in the United States.

Acting as an agent for CBG, Halco obtained insurance coverage through the Pittsburgh office of Marsh & McLennan, an insurance brokerage firm. The coverage insured against losses up to $20,000,000 from business interruptions caused by breakdowns at CBG's processing plant in Guinea. The Insurance Company of North America, not a party to this appeal, insured the first $10,000,000 of loss; the appellants, a group of twenty-one foreign insurance companies, provided excess coverage of $10,000,000 on contracts issued through a London broker.

As is customary in London, the lead underwriter circulated a "placing slip" among representatives of interested insurance companies indicating the risks to be covered and the total coverage requested. The representatives then initialed the placing slip, indicating the percentage of risk their companies were willing to assume. After the coverage was fully subscribed the London broker prepared a "cover note" listing briefly the details of the risk and the premium. An actual policy is seldom issued at this stage and none was issued here. Instead, the excess insurers adopted the form of the INA policy "as far as applicable." App. at 136a.

Because of damage to its bauxite crushing plant, CBG presented a claim on its insurance coverage and the insurers refused to pay. CBG filed a complaint in December, 1975, in the Western District of Pennsylvania against all the insurance companies, asserting jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332(a). Almost four years later, while still participating in the pre-trial stages of this case, the excess insurers filed suit in England on March 22, 1979, seeking to rescind the excess insurance contract alleging that CBG failed to disclose material facts relating to the contract. CBG then moved the district court to enjoin the carriers from pursuing the English suit on the ground that it raised issues identical to those in the case at bar. After a hearing, the district court granted the motion, providing the order that is the subject of this appeal under 28 U.S.C. § 1292(a)(1).

II.

A district court must have personal jurisdiction over a party before if can enjoin its actions. See Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 112, 89 S. Ct. 1562, 1570, 23 L. Ed. 2d 129 (1969). The lack of jurisdiction is the initial question raised by the excess insurers.*fn2 The district court found personal jurisdiction under two independent theories. First, it held that the appellants' activities placed them within reach of the Pennsylvania long-arm statute. 42 Pa.Cons.Stat.Ann. §§ 8301-8311 (repealed June 27, 1978; current version at 42 Cons.Stat.Ann. § 5322). Alternatively, the district court took as established, pursuant to Fed.R.Civ.P. 37(b)(2)(A), that it had personal jurisdiction as a sanction for the insurers' failure to comply with the court's order compelling discovery. The rule provides that "if a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make ... an order that ... designated facts shall be taken to be established for the purposes of the action...."

A defendant's challenge to the court's in personam jurisdiction imposes on the plaintiff the burden of "coming forward with facts, by affidavit or otherwise, in support of personal jurisdiction." DiCesare-Engler Productions, Inc. v. Mainman Ltd., 81 F.R.D. 703, 705 (W.D.Pa.1979); see also Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir. 1977). CBG had the ultimate burden of proving that the activities of the insurance companies brought them within the scope of the Pennsylvania long-arm statute.

The long-arm statute sets forth two independent tests for the assertion of in personam jurisdiction over foreign corporations. A court may exercise jurisdiction over a foreign corporation found to be doing business in Pennsylvania as the statute defines doing business. Alternatively, the assertion of jurisdiction over a foreign corporation is permitted so long as that assertion does not contravene the due process clause prohibition against assertions of jurisdiction that "offend "traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940)); see generally World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Only minimal contacts with the forum state are required to satisfy due process. See McGee v. International Life Insurance Co., 355 U.S. 220, 222-23, 78 S. Ct. 199, 200-201, 2 L. Ed. 2d 223 (1957); Aldens, Inc. v. Packel, 524 F.2d 38, 42-44 (3d Cir. 1975), cert. denied, 425 U.S. 943, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976).

III.

CBG sought by means of discovery to obtain evidence to meet its burden of proving either that the insurers were doing business in Pennsylvania or that there were sufficient contacts to satisfy due process. On August 9, 1976, it began what was to become a three-year discovery odyssey by serving a request on each defendant for copies of all business interruption insurance policies issued between January 1, 1972 and December 31, 1975, as well as all documents related in any way to the claim being made here. App. at 66a-69a. The carriers objected to the discovery request on January 24, 1977, claiming that compliance "would be extremely expensive and burdensome." Id. at 72a. CBG responded on May 12, 1977, by filing a motion to compel production. Id. at 74a. Over a year passed before the district court ruled on CBG's motion and ordered the excess insurers to produce the relevant documents. Id. at 515a-16a. During the interim, the insurance companies pressed their claim that the court did not have personal jurisdiction but did not relate that claim to the discovery order.

On May 20, 1977, seventeen of the twenty-one excess insurers filed a motion for summary judgment, contending that the complaint should be dismissed because the district court lacked personal jurisdiction over them. Id. at 78a-86a. According to the allegations of the motion and the supporting affidavits, none of these insurance companies was organized, licensed, or authorized to do business under the laws of Pennsylvania.*fn3 The excess insurers therefore concluded that the exercise of personal jurisdiction over them would constitute "a clear-cut violation of due process." Id. at 81a.

In an affidavit opposing the motion for summary judgment, CBG claimed that between 1971 and 1975, various excess insurers had participated in at least ten insurance contracts connected with CBG's operations in Guinea wherein the insurers agreed to be subject to suit in the United States. Id. at 172a-73a. A second affidavit contains a more general list of the contracts involving CBG and each of the excess insurance companies in which the Pittsburgh office of Marsh & McLennan acted as CBG's agent. Id. at 177a.

Recognizing, however, that the full extent of the insurers' contacts with Pennsylvania could only be determined by examining the insurers' records, CBG renewed its request for the production of "all cover notes and/or insurance policies wherein any of the excess insurer defendants participated as an insurer ... which ... were delivered in ... Pennsylvania and/or covered a risk located in ... Pennsylvania." Id. at 194a. This request of July 14, 1978, narrowed CBG's earlier discovery request of August 9, 1976, to encompass only policies with some logical relationship to Pennsylvania. The excess insurers again objected on the ground that the request included documents beyond the legitimate scope of discovery and that the request was unduly burdensome and oppressive. Id. at 195a-96a.

On July 27, 1978, the district court attempted to resolve the motions for production of documents by ordering the insurance companies to "furnish the names of the policies and the numbers and sort of a general outline of the policies, not in detail, of all the (Pennsylvania related) policies they (had) written from 1971 to date." Id. at 516a; see Fed.R.Civ.P. 37(a). Counsel for the carriers argued that obtaining the policies was no simple task because the policies would be available only in the files of London brokers. To satisfy CBG's request, "over 150 London brokers" would have to search through "hundreds of thousands of documents." App. at 517a. The district court found, however, that the request was not burdensome and that the process ...


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