Peace Church Risk Retention Gr v. Johnson Controls Fire Protecti ( 2022 )


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  •                                      PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 21-2923
    ____________
    PEACE CHURCH RISK RETENTION GROUP, (A
    RECIPROCAL), AS SUBROGEE OF BARCLAY
    FRIENDS; CARING COMMUNITIES, (A RECIPROCAL),
    AS SUBROGEE OF BARCLAY FRIENDS
    v.
    JOHNSON CONTROLS FIRE PROTECTION LP, FKA
    SimplexGrinnell LP,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    District Court No. 5-19-cv-05377
    U.S. District Judge: Honorable R. Barclay Surrick
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    July 8, 2022
    Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges
    (Opinion Filed: September 20, 2022)
    Catherine G. Bryan
    Jeffrey L. O’Hara
    Connell Foley
    1085 Raymond Boulevard
    One Newark Center, 19th Floor
    Newark, NJ 07102
    Timothy K. Lewis
    Schnader Harrison Segal & Lewis
    120 Fifth Avenue
    Suite 2700
    Pittsburgh, PA 15222
    Bruce P. Merenstein
    Schnader Harrison Segal & Lewis
    1600 Market Street
    Suite 3600
    Philadelphia, PA 19103
    Attorneys for Johnson Controls Fire Protection LP
    Morgan S. Birch
    Thomas B. Fiddler
    Justin E. Proper
    White & Williams
    1650 Market Street
    One Liberty Place, Suite 1800
    Attorneys for Peach Church Risk Retention Group and
    Caring Communities
    2
    ____________
    OPINION OF THE COURT
    ____________
    KRAUSE, Circuit Judge.
    The parties’ initial briefs asked us to decide the
    availability of particular tort claims under Pennsylvania law.
    But before any federal court can decide the merits of such a
    question, it must have the jurisdiction to do so, and
    supplemental briefing on a jurisdictional issue submitted to this
    Court convinces us that it may be lacking here. That is because
    the federal courts’ authority to entertain this case is premised
    on diversity jurisdiction, but we conclude that the citizenship
    of reciprocal insurance exchanges, such as Plaintiffs-
    Appellees, turns on the citizenship of their subscribers, who
    may not be completely diverse from Defendant-Appellant. As
    additional factfinding is needed on this issue, we will vacate
    the District Court’s denial of the motion to dismiss under Rule
    12(b)(6) and remand for that Court to determine the existence
    of diversity jurisdiction in the first instance.
    I.     FACTUAL AND PROCEDURAL BACKGROUND
    This action arises out of a tragic fire at the Barclays
    Friends assisted living facility in 2017 that caused four
    residents’ deaths. The estates of those residents sued Barclay
    Friends and Defendant-Appellant Johnson Controls Fire
    Protection LP (“Johnson Controls”) (formerly known as
    SimplexGrinnell), which maintained and monitored Barclay
    Friends’s fire-suppression system at the time of this terrible
    incident.
    3
    After Barclay Friends—and by extension its liability
    insurers, the Plaintiffs-Appellees Peach Church Risk Retention
    Group (“Peace Church”) and Caring Communities
    (collectively, the “Liability Insurers”)—settled with the
    estates, the Liability Insurers filed the instant suit against
    Johnson Controls in federal court, asserting diversity
    jurisdiction. They alleged that because Johnson Controls’s
    tortious conduct caused the fire—and the fire caused the
    residents’ deaths, eventually leading to Barclay Friends’s
    voluntary settlement of the estates’ claims—the Liability
    Insurers, standing in the shoes of Barclay Friends as its
    subrogees, are entitled to damages in the amount of the
    settlement payments they made on Barclay Friends’s behalf.
    The Liability Insurers’ complaint asserted claims against
    Johnson Controls for a variety of torts, including negligence,
    gross negligence, wanton and willful misconduct, negligent
    misrepresentation, intentional misrepresentation, fraud, and
    breach of implied warranty of workmanlike services.
    Johnson Controls moved to dismiss under Rule
    12(b)(6), arguing that there was no legal basis for the Liability
    Insurers to recover the settlement payments they independently
    chose to make to third parties without bringing traditional
    indemnity or contribution claims. The District Court,
    reasoning, among other things, that there was no clear
    prohibition under Pennsylvania subrogation law on insurers
    “asserting tort-based claims against third party tortfeasors,”
    denied the motion. Given the novelty of the Liability Insurers’
    theory of liability, however, it granted Johnson Controls’s
    motion to certify the order for interlocutory appeal, and we
    then granted the ensuing petition to appeal.
    4
    II.    JURISDICTION AND STANDARD OF REVIEW
    The complaint asserts that the District Court had
    jurisdiction based on the diversity of the parties under 
    28 U.S.C. § 1332
    , and the case culminated in an interlocutory
    order. Having previously granted Johnson Controls’s petition
    to appeal, we ordinarily would exercise jurisdiction to review
    that order pursuant to 
    28 U.S.C. § 1292
    (b). Here, however, a
    threshold question has arisen as to the existence of diversity
    jurisdiction, and despite the fact that the appeal in this case was
    limited to the merits of the District Court’s dismissal, we have
    a continuing obligation to assess subject matter jurisdiction sua
    sponte at all stages of the proceeding, even when parties do not
    raise the issue. See Samuel-Bassett v. KIA Motors Am., Inc.,
    
    357 F.3d 392
    , 395 (3d Cir. 2004). And while “the absence of
    complete diversity [would] deprive[] all federal courts of
    subject matter jurisdiction over this action, a federal court
    always has jurisdiction to determine its jurisdiction.” Zambelli
    Fireworks Mfg. Co., Inc. v. Wood, 
    592 F.3d 412
    , 418 (3d Cir.
    2010) (citing United States v. Ruiz, 
    536 U.S. 622
    , 628 (2002)).
    We exercise plenary review over issues of subject
    matter jurisdiction. Johnson v. SmithKline Beecham Corp.,
    
    724 F.3d 337
    , 345 (3d Cir. 2013).
    III.   DISCUSSION
    Federal courts are courts of limited jurisdiction, and we
    must therefore be certain that there is a basis for our authority
    to hear each suit before proceeding to the merits. See Zambelli
    Fireworks, 
    592 F.3d at 418
    . One such basis, diversity
    jurisdiction, “as its name indicates, . . . requires that opposing
    parties be citizens of diverse states.” GBForefront, L.P. v.
    Forefront Mgmt. Grp., LLC, 
    888 F.3d 29
    , 34 (3d Cir. 2018).
    5
    In order to meet the strictures of the diversity statute, complete
    diversity is required, meaning that at the time the complaint is
    filed, no party can be a citizen of the same state as any opposing
    party.1 Lincoln Ben. Life Co. v. AEI Life, LLC, 
    800 F.3d 99
    ,
    104 & n.9 (3d Cir. 2015); S. Cross Overseas Agencies, Inc. v.
    Wah Kwong Shipping Grp. Ltd., 
    181 F.3d 410
    , 414 n.2 (3d Cir.
    1999).
    A.   Citizenship Determinations
    For the most part, the rules for determining the
    citizenship of individuals and the various types of business
    entities are “well-established.” GBForefront, 888 F.3d at 34
    (citing Zambelli Fireworks, 
    592 F.3d at 419
    ). For example,
    “[a] natural person is deemed to be a citizen of the state where
    he is domiciled,” while “[a] corporation is a citizen both of the
    state where it is incorporated and of the state where it has its
    principal place of business.” Zambelli Fireworks, 
    592 F.3d at 419
    . For “artificial entities other than corporations,” the
    general rule is that the citizenship of the entity is determined
    by the citizenship of “all [its] members.” Americold Realty Tr.
    v. Conagra Foods, Inc., 
    577 U.S. 378
    , 381 (2016) (internal
    quotation omitted) (alteration in the original).
    The Supreme Court has applied this rule to many
    common forms of unincorporated entities, such as unions, joint
    stock companies, and partnerships. See Americold, 577 U.S. at
    1
    Section 1332(a) provides, in relevant part: “The
    district courts shall have original jurisdiction of all civil actions
    where the matter in controversy exceeds the sum or value of
    $75,000, exclusive of interest and costs, and is between . . .
    citizens of different States.” 
    28 U.S.C. § 1332
    (a)(1).
    6
    381 (citing Carden v. Arkoma Assocs., 
    494 U.S. 185
    , 189–90
    (1990)); see also Chapman v. Barney, 
    129 U.S. 677
    , 682
    (1889) (joint stock companies); Great S. Fire Proof Hotel Co.
    v. Jones, 
    177 U.S. 449
    , 457 (1900) (partnerships); United
    Steelworkers of Am. v. R.H. Bouligny, Inc., 
    382 U.S. 145
    , 146–
    47 (1965) (unions). As a result, there is no question of how the
    citizenship of Johnson Controls is to be determined. In Carden
    v. Arkoma Associates, the Supreme Court held that for
    diversity purposes, the citizenship of a limited partnership is
    the same as the citizenship(s) of all of its partners, including its
    limited partners, 
    494 U.S. at
    195–96; see also GBForefront,
    888 F.3d at 37, so Johnson Controls is a citizen of every state
    of which its partners are citizens.2
    There remain some unincorporated associations,
    however, for which it is not entirely clear who or what counts
    as a “member.” That is because, while the Supreme Court has
    “never expressly defined the term,” it has developed a
    “principle” of “equat[ing] an association’s members with its
    owners or ‘the several persons composing such association,’”
    Americold, 577 U.S. at 381 (quoting Carden, 
    494 U.S. at 196
    ),
    2
    Its partners, of course, may be either natural persons
    or artificial entities themselves, and the citizenship rules will
    need to be applied to them in turn in order to determine all the
    states of which Johnson Controls is a citizen. See, e.g.,
    GBForefront, 888 F.3d at 36 (explaining that “[w]hen a
    business entity consists of constituent parts that are also
    business forms, the inquiry into jurisdictional citizenship ‘can
    become quite complicated’” because “‘[t]he citizenship of
    unincorporated associations must be traced through however
    many layers of partners or members there may be’” (quoting
    Lincoln, 800 F.3d at 105 n.16).
    7
    and it is left to the courts to apply that principle to novel types
    of unincorporated entities as they arise.
    The Liability Insurers fit that category.3 Each of them
    is structured as a reciprocal insurance exchange—also known
    as a reciprocal exchange or interinsurance exchange—which
    is, in general, a distinct legal entity that can sue or be sued in
    its own name, but unlike traditional mutual insurance
    companies, has no corporate existence. 43 AM. JUR. 2D
    INSURANCE §§ 72, 77. It is instead an unincorporated
    association whose subscribers “exchange contracts and pay
    premiums . . . for the purpose of insuring themselves and each
    other.” Reciprocal Exchange, BLACK’S LAW DICTIONARY
    (11th ed. 2019); see Baer v. United Servs. Auto. Ass’n, 
    503 F.2d 393
    , 395 n.3 (2d Cir. 1974) (“[I]n a reciprocal insurance
    association the members, by exchanging contracts of
    insurance, are both the insurers and the insureds.”); James G.
    Davis Const. Corp. v. Erie Ins. Exch., 
    953 F. Supp. 2d 607
    ,
    610–11 (D. Md. 2013) (“[I]n a reciprocal insurance exchange,
    ‘[e]ach subscriber is both an insurer and an insured.’” (second
    alteration and emphasis in original) (quoting Michael A.
    Haskel, The Legal Relationship Among A Reciprocal Insurer’s
    Subscribers, Advisory Committee and Attorney-in-Fact, 6 N.Y.
    CITY L. REV. 35, 36 (2003))). The subscribers are thus
    simultaneously both the insureds of and insurers to one
    another, with the exchanges of insurance between them
    effected by a common representative (the “attorney-in-fact”),
    3
    We consider the Liability Insurers’ citizenship rather
    than Barclay Friends’s because Barclay Friends subrogated its
    rights to the insurers. See Fallat v. Gouran, 
    220 F.2d 325
    , 326
    (3d Cir. 1955); St. Paul Fire & Marine Ins. Co. v. Universal
    Builders Supply, 
    409 F.3d 73
    , 80–82 (2d Cir. 2005).
    8
    who acts as an agent for each individual subscriber. 43 AM.
    JUR. 2D INS. § 72. A reciprocal insurance exchange is thus
    “something more than a partnership and something less than
    an insurance corporation”; it is, essentially, an aggregation of
    subscribers who swap liabilities amongst themselves. 3
    COUCH ON INS. § 39:48 (3d ed.); see also, e.g., True v. Robles,
    
    571 F.3d 412
    , 421–23 & n.2 (5th Cir. 2009); Lewis v. United
    Servs. Auto. Ass’n, 
    45 F.3d 433
     (8th Cir. 1994) (unpublished
    table decision); Baer, 
    503 F.2d at
    394–96 & n.3; Arbuthnot v.
    State Auto. Ins. Ass’n, 
    264 F.2d 260
    , 261–62 (10th Cir. 1959).
    The question, then, is whether these subscribers are
    merely customers of the exchange, or, alternatively,
    “members” of the exchange whose citizenship then determines
    the citizenship of the exchange itself. We have not previously
    had cause to consider this question. We hold here that
    subscribers to reciprocal insurance exchanges must be treated
    as members for diversity purposes.
    We reach that conclusion for this form of business entity
    by looking to the laws of the states in which the entity is
    organized. In Americold, the Supreme Court instructed us to
    do just that when considering a form of unincorporated
    artificial entity for the first time in the context of diversity
    jurisdiction. See 577 U.S. at 382 (considering a “real estate
    investment trust” organized under Maryland law and noting
    that “Maryland law provides an answer” as to who its members
    are). Here, according to the complaint, Peace Church is
    organized under the laws of Vermont, and Caring
    Communities is organized under the laws of the District of
    Columbia.
    9
    Both Vermont and the District of Columbia allow for
    the creation of reciprocal insurance exchanges that follow the
    general organizational principles outlined above;4 and their
    laws and regulations confirm that for this type of entity, its
    “members”—that is, its “owners,” or “the several persons
    composing such [an] association,” Americold, 577 U.S. at 381
    (internal quotation omitted)—are its subscribers. It is they
    (along with their agent, the attorney-in-fact) who comprise the
    reciprocal insurance exchange and are considered a single
    entity as to all of the exchange’s operations, 
    D.C. Mun. Regs. tit. 26, § 4005.3
    ; 
    Vt. Stat. Ann. tit. 8, § 4835
    (b); who have the
    authority to set the rules pursuant to which its governance
    committee is selected, 
    D.C. Mun. Regs. tit. 26, § 4017
    ; 
    Vt. Stat. Ann. tit. 8, § 4847
    ; who are ultimately responsible for
    making up the deficiency when the reciprocal insurance
    exchange cannot discharge its liabilities, 
    D.C. Mun. Regs. tit. 26, § 4026
    ; 
    Vt. Stat. Ann. tit. 8, § 4856
    ; and who may receive
    4
    See 
    D.C. Mun. Regs. tit. 26, § 4099
     (defining
    “[r]eciprocal insurers” or “reciprocals” as “an unincorporated
    insurance company, under a common name, in which
    subscribers exchange insurance policies through an Attorney
    in Fact, having the authority to obligate each subscriber both
    as insured and insurer, for the purpose of transferring and
    distributing insurance risks among its subscribers”); 
    id.
     at §
    4006.1 (authorizing such organizations); Vt. Stat. Ann. tit. 8
    § 4831(2)–(3) (defining “[r]eciprocal” insurance as “that
    resulting from an interchange among persons, known as
    subscribers, of reciprocal agreements of indemnity, the
    interchange being effectuated through an attorney-in-fact
    common to all such persons” and “[s]ubscribers” as “persons
    who enter into reciprocal insurance agreements under this
    chapter”); id. at § 4836(a) (authorizing such organizations).
    10
    the remaining assets of a liquidated reciprocal insurance
    exchange after it has, among other things, discharged its
    liabilities, 
    D.C. Mun. Regs. tit. 26, § 4024
    ; 
    Vt. Stat. Ann. tit. 8, § 4854
    .
    Because the members of a reciprocal insurance
    exchange are its subscribers, we look to the citizenships of
    those subscribers to determine the citizenship of the exchange
    itself. See Carden, 
    494 U.S. at
    195–96. And that brings us to
    the exchanges here, the Liability Insurers, and the question of
    whether diversity is present in this case.
    B.   Diversity of Citizenship in This Case
    According to the parties’ supplemental submissions on
    this issue, the Liability Insurers have subscribers who are
    located in a multitude of states, including, as relevant here,
    Delaware and Wisconsin. On the other side of the “v.”, the
    opposing party, Johnson Controls, a limited partnership,
    identifies its members as other LLCs and LPs that make it a
    citizen of Delaware and Wisconsin.5 In short, diversity
    jurisdiction appears to be lacking.
    That said, we are not prepared to rest on appearances
    when additional factfinding is clearly required. For one thing,
    although the Liability Insurers correctly note that diversity of
    citizenship is determined at the time the complaint is filed, it is
    5
    Johnson Controls lists its members as Simplex Time
    Recorder LLC, Tyco Fire Protection LLC, STR Grinnell GP
    Holding, LLC, and Master Protection LP, and the members of
    those entities, in turn, are considered in tracing Johnson
    Controls’s citizenship to these two states.
    11
    nevertheless not sufficiently clear from the affidavits submitted
    with their supplemental briefing whether the subscribers they
    “ha[ve]” were citizens of the enumerated states (and
    subscribers) at the time they filed their complaint; Johnson
    Controls’ submission similarly fails to specify whether it
    reflects its make-up as of the relevant time.6 Cf. Washington
    v. Hovensa LLC, 
    652 F.3d 340
    , 344 (3d Cir. 2011) (noting that
    citizenship of the parties must be determined “based on the
    relevant facts at the time the complaint was filed”). The
    subscribers’ citizenship, moreover, will depend on whether
    they are natural persons or artificial entities and, potentially, on
    indicia beyond mere physical presence in the state to establish
    citizenship. See, e.g., Frett-Smith v. Vanterpool, 
    511 F.3d 396
    ,
    400–01 (3d Cir. 2008); Johnson, 724 F.3d at 347–49.
    In the normal course, because the “[h]istorical or
    chronological data which underl[ie] a court’s determination of
    diversity jurisdiction are factual in nature,” our role is to review
    6
    Johnson Controls’s letter also indicates that its
    citizenship traces back to an entity “handled as a
    corporation.” It is not clear what Johnson Controls means by
    this, so the District Court should inquire into this
    representation as well, applying the principles set forth
    above. See Americold, 577 U.S. at 382–83 (looking to state
    law but noting that “so long as . . . an entity is unincorporated,
    we apply our oft-repeated rule that it possesses the citizenship
    of all of its members” (quotation marks omitted)); see also
    Fairfield Castings, LLC v. Hofmeister, 
    112 F. Supp. 3d 850
    ,
    853 (S.D. Iowa 2015) (noting an entity’s “elective decision to
    be treated as a corporation for tax purposes does not somehow
    transform its LLC status for purposes of evaluating diversity
    jurisdiction”).
    12
    the district court’s findings on these points for clear error.
    Krasnov v. Dinan, 
    465 F.2d 1298
    , 1299–1300 (3d Cir. 1972).
    In this case, however, there are no factual findings for us to
    review because the District Court did not have the opportunity
    to evaluate jurisdiction in light of the supplemental
    submissions and our holding today regarding the treatment of
    reciprocal insurance exchanges. We will therefore remand for
    the Liability Insurers to provide more specificity about their
    citizenship and for the District Court, in the first instance, to
    make findings and conclusions concerning its jurisdiction.
    See, e.g., GBForefront, 888 F.3d at 36, 41.
    * * *
    For the foregoing reasons, we will vacate the District
    Court’s denial of the motion to dismiss under Rule 12(b)(6)
    and remand for proceedings consistent with this opinion.
    13