Lexington Insurance Company v. Hotai Insurance Company, Ltd. ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1141
LEXINGTON INSURANCE COMPANY,
Plaintiff-Appellant,
v.
HOTAI INSURANCE COMPANY, LTD., and
TAIAN INSURANCE COMPANY, LTD.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin, Madison Division.
No. 3:16-cv-740 — James D. Peterson, Chief Judge.
____________________
ARGUED NOVEMBER 27, 2018 — DECIDED SEPTEMBER 12, 2019
____________________
Before BAUER, HAMILTON, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Zurich Insurance (Taiwan), Ltd.,
and Taian Insurance Company, Ltd., are insurance companies
2 No. 18-1141
based in Taiwan. 1 Each provided worldwide products-liabil-
ity insurance coverage to two Taiwanese companies that sup-
plied parts and inventory to Trek Bicycle Corporation, which
is based in Wisconsin. As part of their agreements with the
Taiwanese companies, Zurich and Taian both recognized Trek
as an additional insured covered by their policies.
On the basis of that additional-insured status, Trek’s pri-
mary insurer, Lexington Insurance Company, which is based
in Massachusetts, sued Zurich and Taian in Wisconsin seek-
ing indemnification for a products-liability settlement paid on
Trek’s behalf involving an accident that took place in Texas.
The district court correctly concluded that it lacked personal
jurisdiction over Zurich and Taian, so we affirm its dismissal
of the case.
I.
Trek, a bicycle manufacturer, maintains its corporate of-
fices in Waterloo, Wisconsin. It is party to two purchase order
agreements, both with Taiwanese companies, that are relevant
to this appeal. One is an agreement with Giant Manufacturing
Company to purchase bicycles that Trek markets and sells un-
der its own brand name. The other is an agreement to pur-
chase bicycle parts from Formula Hubs, Inc.
Giant’s purchase order agreement with Trek required it to
have Trek named as an additional insured in its products-lia-
bility insurance policy with Zurich, a Taiwanese insurer. Un-
der that policy, Zurich agreed to indemnify Giant and its
1 Both companies are organized under the laws of the Republic of
China, and each has its principal place of business in Taipei, Taiwan. Zur-
ich now operates under the name “Hotai Insurance Co., Ltd.,” but we refer
to it as Zurich for clarity and consistency with the record.
No. 18-1141 3
listed vendors, including Trek, for judgments, expenses, and
legal costs incurred “worldwide.” In addition, the Zurich pol-
icy (1) allowed Zurich to control the litigation or settlement of
a covered claim but did not require it to do so; (2) included a
Taiwanese choice of law provision; and (3) required disputes
between Zurich and its insureds regarding the policy to be re-
solved by arbitration in Taiwan. 2
Trek’s purchase order with Formula involved a similar in-
surance arrangement. In it, Formula agreed to have Trek in-
cluded as an additional insured in its products-liability insur-
ance policy with Taian, another Taiwanese insurer. Under the
policy, Taian agreed to indemnify Formula and its vendors,
including Trek, for liability and defense costs incurred
“worldwide.” Like the Zurich policy, the Taian policy gave
Taian the right but not the obligation to control the litigation
of a covered claim against an insured. Finally, it dictated that
disputes concerning the policy would be subject to Taiwanese
law and would have to submit to the jurisdiction of a Taiwan-
ese court.
In 2012, John Giessler, a Louisiana resident, was seriously
injured while riding a rented Trek bicycle in Travis County,
Texas. During his ride, the front wheel detached from the
frame of the bicycle, Giessler fell, and the resulting injuries
rendered him a quadriplegic. Giessler, his wife, and his son
sued Trek, among others, in Texas. Although Giant had man-
ufactured the bicycle that Giessler was riding, and Formula
had manufactured the front-wheel release, neither was a
party to Giessler’s lawsuit.
2 Lexington participated in arbitration proceedings with Zurich in Tai-
wan, but the arbitrator ultimately decided that its claim was time-barred.
4 No. 18-1141
Lexington Insurance Company, which insures Trek
through comprehensive general liability and commercial um-
brella policies, defended Trek in the Giessler suit. Trek and
Lexington attempted to notify Giant and Formula—and their
respective insurers, Zurich and Taian—of Giessler’s lawsuit.
In the end, though, the case settled, and Lexington paid
Giessler on Trek’s behalf. Lexington sought reimbursement
from Zurich and Taian; after they refused to pay, it sued them
in the Western District of Wisconsin. It argued that both were
obligated to indemnify Trek under their respective insurance
policies with Giant and Formula. And presenting theories of
contribution and equitable subrogation, Lexington contended
that the Taiwanese insurers must pay it the money that they
owed Trek.
Both Zurich and Taian moved to dismiss the case for lack
of personal jurisdiction and improper venue. With respect to
the former, the insurers argued, among other things, that they
lacked the necessary minimum contacts with Wisconsin to
justify the district court’s exercise of jurisdiction over them—
these policies were contracts between Taiwanese companies,
drafted and signed in Taiwan, and governed by Taiwanese
law. In response, Lexington contended that the worldwide
coverage provisions and the inclusion of Trek as an additional
insured in each policy constituted sufficient contacts with the
state of Wisconsin to satisfy due process. The district court
held that it lacked personal jurisdiction over the Taiwanese
insurers, and Lexington appeals.
II.
A federal court may exercise personal jurisdiction over a
foreign defendant only to the extent permitted by the forum
No. 18-1141 5
state’s long-arm statute and by the Due Process Clause. Fel-
land v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). The parties
agree that Wisconsin’s long-arm statute, Wis. Stat. § 801.05,
reaches Zurich and Taian. 3 The only question is whether the
exercise of jurisdiction over the defendants satisfies the Due
Process Clause.
To satisfy due process, a defendant’s physical presence
within the state is not required. Walden v Fiore, 571 U.S. 277,
283 (2014). But a foreign defendant “generally must have ‘cer-
tain minimum contacts … such that the maintenance of the
suit does not offend traditional notions of fair play and sub-
stantial justice.’” Id. (alteration in original) (quoting Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)). In other words, the
defendant’s relationship with the forum state must be such
that the defendant “should reasonably anticipate being haled
into court there.” Felland, 682 F.3d at 673 (citation omitted).
Personal jurisdiction takes two forms—general and spe-
cific. General jurisdiction is all-purpose; it permits a defend-
ant to be sued in a forum for any claim, regardless of whether
the claim has any connection to the forum state. Goodyear
Dunlop Tires Operations v. Brown, 564 U.S. 915, 919 (2011). For
a state to have such extensive jurisdiction over a defendant,
however, the defendant’s contacts must be “so ‘continuous
and systematic’ as to render [it] essentially at home in the fo-
rum state.” Id. (citation omitted). Lexington does not contend
3 Wis. Stat. § 801.05(10) grants personal jurisdiction over a defendant
“[i]n any action which arises out of a promise made anywhere to the plain-
tiff or some third party by the defendant to insure upon or against the
happening of an event and in addition … the person insured was a resi-
dent of this state when the event out of which the cause of action is claimed
to arise occurred.”
6 No. 18-1141
that either Zurich or Taian is “at home” in Wisconsin. Instead,
it argues that the federal district court in Wisconsin has spe-
cific jurisdiction over the insurers. Specific jurisdiction “is
confined to adjudication of ‘issues deriving from, or con-
nected with, the very controversy that establishes jurisdic-
tion.’” Id. (citation omitted).
Specific jurisdiction has three “essential requirements.”
Felland, 682 F.3d at 673. First, the defendant’s contacts with
the forum state must show that it “purposefully availed [it-
self] of the privilege of conducting business in the forum state
or purposefully directed [its] activities at the state.” Id. Sec-
ond, the plaintiff’s alleged injury must have arisen out of the
defendant’s forum-related activities. Id. And finally, any ex-
ercise of personal jurisdiction must comport with traditional
notions of fair play and substantial justice. Id.
We begin with whether Zurich and Taian “purposefully
availed [themselves] of the privilege of conducting business
in the forum state or purposefully directed [their] activities
at” Wisconsin. See id. To answer this question, we look to see
if there are “‘minimum contacts’ between the defendant and
the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291 (1980) (citing Int’l Shoe, 326 U.S. at 316). The Su-
preme Court has emphasized that this analysis focuses on
“the defendant’s contacts with the forum State itself, not the
defendant’s contacts with persons who reside there.” Walden,
571 U.S. at 285. The Due Process Clause protects a defendant
from being forced to submit to the adjudicatory authority of a
state with which it has not purposefully established a suffi-
cient connection—and deliberate contact with the resident of
a state is not the same thing as deliberate contact with the state
itself. Id. at 285–86; see also Advanced Tactical Ordnance Sys.,
No. 18-1141 7
LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir.
2014). While the merits of this case turn on Zurich and Taian’s
relationship with Trek, personal jurisdiction turns on their re-
lationship with Wisconsin.
Lexington has failed to demonstrate that either Zurich or
Taian made any purposeful contact with Wisconsin before,
during, or after the formation of the insurance contracts. They
did not solicit Trek’s business or target the Wisconsin market.
See Int’l Shoe, 326 U.S. at 314 (defendant had salesmen in the
forum exhibiting samples and soliciting orders from potential
buyers); see also Daniel J. Hartwig Assocs. v. Kanner, 913 F.2d
1213, 1218–19 (7th Cir. 1990) (whether the defendant solicited
the plaintiff’s services is “significant” in the minimum-con-
tacts analysis). They negotiated and drafted these contracts in
Taiwan with Taiwanese companies. Cf. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 467 (1985) (defendants negotiated
with Burger King’s headquarters, which were located in the
forum state). Both policies required disputes to be resolved in
Taiwan according to the laws of Taiwan. Cf. id. at 465–66 (con-
tract dictated that the relationship between the parties be gov-
erned by the law in the forum state). Zurich and Taian did not
visit Wisconsin or contact anyone residing there. Cf. id. at 466,
468 (defendant attended management courses in the forum
state in addition to communicating with headquarters in the
forum state by mail and telephone). Indeed, Lexington points
to no evidence that Zurich or Taian ever sent anything—even
a copy of either insurance policy—to Wisconsin. 4 Cf. Walden,
4 While the record contains a certificate reflecting Taian’s insurance of
Trek under the Formula policy, Lexington is conspicuously quiet about
how and from whom Trek obtained this certificate. Lexington had to make
out a prima facie showing of the court’s jurisdiction over the defendants,
see Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782–83
8 No. 18-1141
571 U.S. at 289 (“Petitioner never traveled to, conducted ac-
tivities within, contacted anyone in, or sent anything or any-
one to Nevada. In short, when viewed through the proper
lens—whether the defendant’s actions connect him to the fo-
rum—petitioner formed no jurisdictionally relevant contacts
with Nevada.”). For personal jurisdiction to exist, “[t]he rec-
ord must show that the defendants targeted the forum state.”
Matlin v. Spin Master Corp., 921 F.3d 701, 706 (7th Cir. 2019).
The record in this case does not show that either insurer tar-
geted Wisconsin.
Notwithstanding all of this, Lexington contends that two
provisions in the insurance policies constitute sufficient con-
tacts with the state of Wisconsin to satisfy the demands of due
process. Both contracts acknowledged Trek as an additional
insured and extended coverage for liabilities incurred
“worldwide.” But neither of these provisions constitutes a
contact with the state of Wisconsin, so they do not singly or
together provide a basis for personal jurisdiction.
We can easily dispose of the first argument because it
flatly contradicts Supreme Court precedent. The fact that Zur-
ich and Taian may be liable to Trek does not give Wisconsin
jurisdiction over them. As we have already explained, it is a
(7th Cir. 2003), so this lack of proof means that we cannot treat the certifi-
cate as evidence of Taian’s purposeful contact with Wisconsin. That said,
the result would not change even if we assume that Taian (rather than, for
example, Formula) sent the certificate to Trek in Wisconsin. One mailing
to an in-state resident is not enough to submit the sender to the jurisdiction
of the state. Cf. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 221–23 (1957) (hold-
ing that a California court had jurisdiction over an out-of-state insurer
when the insurer delivered the offer of life insurance and the insurance
contract itself to California and the insured had sent his premium pay-
ments from California to the insurer for two years).
No. 18-1141 9
defendant’s contacts with the forum state, not with the plain-
tiff, that count. Even if Zurich and Taian had contracts with
Trek—as opposed to contracts with Giant and Formula—a
contract with a forum resident is not enough, standing alone,
to establish jurisdiction in that forum. See Burger King, 471 U.S.
at 478 (“If the question is whether an individual’s contract
with an out-of-state party alone can automatically establish
sufficient minimum contacts in the other party’s home forum,
we believe the answer clearly is that it cannot.”); see also Wal-
den, 571 U.S. at 286 (“[A] defendant’s relationship with a
plaintiff or third party, standing alone, is an insufficient basis
for jurisdiction.”). To conclude that personal jurisdiction ex-
ists, we need to see evidence that Zurich and Taian reached
out to Wisconsin during the formation and execution of these
contracts. Burger King, 471 U.S. at 479 (“It is these factors—
prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties’ actual
course of dealing—that must be evaluated in determining
whether the defendant purposefully established minimum
contacts with the forum.”). There is no such evidence. In fact,
the insurers never had any communication with Trek during
the formation and execution of these contracts, much less any
purposeful contact that touched the state of Wisconsin. A
straightforward application of Burger King and Walden fore-
closes Lexington’s argument.
Lexington’s second contention—that personal jurisdiction
exists because the policies contained worldwide coverage
provisions—also fails. The thrust of the argument is that Zur-
ich and Taian derived financial benefit from affirmatively in-
cluding Wisconsin (and Texas, and the rest of the world) in
their territory of coverage—because the more extensive the
geographic coverage, the higher the premium. The fact that
10 No. 18-1141
the insurers generated income by including Wisconsin, Lex-
ington says, means that the insurers did business in the state
and can be sued there. And it argues that by agreeing to cover
Trek for liabilities and defense costs incurred “worldwide,”
Zurich and Taian bargained for the expectation of being sued
anywhere, including Wisconsin. 5
As an initial matter, gaining a financial benefit by includ-
ing Wisconsin in a territory of coverage is not the equivalent
of “doing business in” Wisconsin. See Goodyear, 564 U.S. at
924; Felland, 682 F.3d at 673. If a parent bets her fifth grader
fifty dollars that it will rain in every single state during the
month of June, she hasn’t “done business” in all fifty states
even though her profit will increase or decrease based on
what happens in each—and even though her risk and poten-
tial profit would have been less if she had limited the territory
to twenty-five states. A defendant does business in a forum
state when it “purposefully avail[s] itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” Goodyear, 564 U.S. at 924(emphasis added) (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958)). Neither Zurich nor Taian “conducted activities”
within Wisconsin.
5 To be clear, Lexington does not contend that the “worldwide cover-
age” clause constituted consent to be sued in any jurisdiction in the world.
If that’s what the clause provided, this would be an open-and-shut case.
See Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703
(1982); see also RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1280 (7th Cir.
1997) (“[P]ersonal jurisdiction is waivable and [the] parties can, through
forum selection clauses and the like, easily contract around any rule we
promulgate.”).
No. 18-1141 11
In fact, the Supreme Court has squarely rejected the prop-
osition that such collateral financial benefits are purposeful
contacts. See World-Wide Volkswagen, 444 U.S. at 298–99. In
World-Wide Volkswagen, the plaintiffs purchased a vehicle in
New York but later sustained personal injuries when they got
into an accident while driving through Oklahoma. Id. at 288.
They brought a products-liability action against the automo-
bile retailer and wholesaler (both New York corporations that
did no business in Oklahoma) in Oklahoma. Id. at 288, 295.
The plaintiffs argued that because the automobile’s “design
and purpose” made it foreseeable that it would cause an in-
jury in Oklahoma, id. at 295, and because the automobile com-
panies received a financial benefit from selling a product with
the ability to travel to across vast geographic areas (including
the distance between New York and Oklahoma), they were
subject to personal jurisdiction in Oklahoma, id. at 298. But
the Supreme Court concluded that all of that added up to “no
activity whatsoever in Oklahoma,” id. at 295:
[I]t is contended that jurisdiction can be sup-
ported by the fact that petitioners earn substan-
tial revenue from goods used in Oklahoma.…
This argument seems to make the point that the
purchase of automobiles in New York, from
which the petitioners earn substantial revenue,
would not occur but for the fact that the automo-
biles are capable of use in distant States like Ok-
lahoma.… [T]he very purpose of an automobile
is to travel …. However, financial benefits ac-
cruing to the defendant from a collateral rela-
tion to the forum State will not support jurisdic-
tion if they do not stem from a constitutionally
cognizable contact with the State.
12 No. 18-1141
Id. at 298–99. Just as the financial benefit gained by selling a
product with the purpose and ability to travel to a vast num-
ber of distant forums is not itself business activity within
those forums, so too here the financial benefit gained from
broad geographic insurance coverage does not constitute “do-
ing business” within the entire covered territory.
World-Wide Volkswagen also forecloses Lexington’s argu-
ment that Zurich and Taian are subject to Wisconsin’s juris-
diction because the “worldwide coverage” clause made it
foreseeable that Trek might sue them anywhere in the world
where Trek incurred liability. “‘[F]oreseeability’ alone has
never been a sufficient benchmark for personal jurisdiction
under the Due Process Clause.” Id. at 295; see also Burger King,
471 U.S. at 474–75; Hanson, 357 U.S. at 251, 254; Advanced Tac-
tical, 751 F.3d at 802. On the contrary, permitting jurisdiction
“based on general notions of fairness and foreseeability [] is
inconsistent with the premises of lawful judicial power.” J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883 (2011) (plu-
rality opinion). Only a defendant’s actions can empower a
state to exercise jurisdiction over him. Id.; see also World-Wide
Volkswagen, 444 U.S. at 297 (“[T]he foreseeability that is critical
to due process analysis … is that the defendant’s conduct and
connection with the forum State are such that he should reason-
ably anticipate being haled into court there.” (emphasis
added)). Given this principle, the “worldwide coverage”
clause cannot justify Wisconsin’s—or any other state’s—exer-
cise of jurisdiction over Zurich and Taian simply because the
clause made suit in that state foreseeable. The clause can sup-
port jurisdiction only if the act of granting Trek “worldwide
coverage” established a purposeful connection between the
insurers and every American state, all of which are included
in the covered territory. It did not.
No. 18-1141 13
The “worldwide coverage” clause defined the territorial
scope of the insurers’ obligation to Trek. But the presence of a
state within the scope of coverage creates no purposeful con-
nection between the insurers and that state. Consider Texas,
which was the location of the accident, the suit, and the set-
tlement. Zurich and Taian could have covered Trek’s claim
for this liability without ever touching Texas—for example,
they could have mailed a check to Trek’s headquarters in Wis-
consin or sent the money electronically to an account located
in another state or even another country. Indeed, if the cov-
ered territory had been limited, Zurich and Taian could have
discharged their obligation by sending funds to an account
located outside the covered territory. Jurisdiction depends on
the defendant’s actions, and payment of a covered claim is the
only act that these policies required the insurers to perform.
It is doubtful that the act of sending payment to an account
located within a state is a contact sufficient to support per-
sonal jurisdiction. But even if it were, there is no necessary
connection between the territory of coverage and the location
of payment.
Lexington claims that “myriad cases around the country”
have recognized personal jurisdiction under these same cir-
cumstances. Yet almost every case that it cites involves an in-
surance policy with a duty-to-defend clause—and if Zurich
and Taian had assumed a duty to defend Trek in any jurisdic-
tion in which it incurred liability and structured their finan-
cial benefits on that obligation, this might be a different case.
In that situation, courts have described the “expectation of be-
ing haled into court in a foreign state [a]s an express feature
of [the] policy.” Rossman v. State Farm Mut. Auto. Ins. Co., 832
F.2d 282, 286 (4th Cir. 1987); see also Farmers Ins. Exch. v. Por-
tage La Prairie Mut. Ins. Co., 907 F.2d 911, 914 (9th Cir. 1990)
14 No. 18-1141
(“[When] automobile liability insurers contract to indemnify
and defend the insured for claims that will foreseeably result
in litigation in foreign states … litigation requiring the pres-
ence of the insurer is not only foreseeable, but it was purpose-
fully contracted for by the insurer.”); see also, e.g., Ferrell v.
West Bend Mut. Ins. Co., 393 F.3d 786, 790–91 (8th Cir. 2005);
Payne v. Motorists Mut. Ins. Cos., 4 F.3d 452, 454–57 (6th Cir.
1993). But see Hunt v. Erie Ins. Grp., 728 F.2d 1244, 1247 (9th
Cir. 1984) (“Erie’s failure to structure its policy to exclude the
possibility of defending a suit wherever an injured claimant
requires medical care cannot, in our view, fairly be character-
ized as an act by which Erie has purposefully availed itself of
the privilege of conducting activities in California.”). Here,
though, Zurich and Taian contracted for the right, not the ob-
ligation, to control litigation against their insureds. Thus, “the
expectation of being haled into court in a foreign state” was
not “an express feature” of either policy. Rossman, 832 F.2d at
286. Preserving the right to defend Trek—as opposed to as-
suming a duty to do so—gave Zurich and Taian the option of
deciding whether to avail themselves of the benefits and pro-
tections of the forum’s laws and courts. They promised to in-
demnify Trek no matter where it incurred liability, but as we
have already said, paying Trek did not require them to make
any purposeful contact with a state in which Trek was sued.
The absence of a duty-to-defend clause is decisive.
Lexington has one case that is partly on its side: TH Agri-
culture & Nutrition, LLC v. Ace European Group Ltd. In that case,
the Tenth Circuit said that “the issuance of an insurance pol-
icy that contains a worldwide territory-of-coverage clause
and an option to defend the insured is sufficient to establish
minimum contacts with the forum state.” 488 F.3d 1282, 1288
(10th Cir. 2007). Its “minimum contacts” analysis rests on the
No. 18-1141 15
very premises that Lexington invokes to support jurisdiction
here: “the foreseeability of litigation in foreign states … based
on the insurer’s own actions” of including those states within
the coverage area and the resulting financial benefits to the
insurance company from offering broad geographic coverage.
Id. at 1290.
TH Agriculture offers Lexington very little help, because
despite what it said about minimum contacts, the Tenth Cir-
cuit concluded that the forum state lacked personal jurisdic-
tion over the insurers in that case. The presence of minimum
contacts does not justify personal jurisdiction when haling a
defendant into court in the forum state would violate tradi-
tional notions of fair play and substantial justice. 488 F.3d at1292 (citing Burger King, 471 U.S. at 477–78). This factor was
dispositive in TH Agriculture. Id. (“[We] conclude that the ex-
ercise of personal jurisdiction over the Insurers in Kansas
would be unreasonable.”). Thus, TH Agriculture extends Lex-
ington nothing more than an opportunity to win the battle
and lose the war.
But in any event, we are unpersuaded by the Tenth Cir-
cuit’s treatment of minimum contacts in TH Agriculture. Its
discussion is not only inconsistent with Supreme Court prec-
edent; it is also in significant tension with the Tenth Circuit’s
own precedent. In OMI Holdings, a duty-to-defend case de-
cided almost a decade before TH Agriculture, the Tenth Circuit
criticized the decisions of other circuits in duty-to-defend
cases for relying heavily on “foreseeability—a position at
odds with the Supreme Court’s directive that foreseeability
alone is an insufficient basis on which to establish minimum
contacts.” OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149
F.3d 1086, 1094 (10th Cir. 1998). It also expressed skepticism
16 No. 18-1141
at the willingness of other circuits to assume “that by agreeing
to defend its insured in any forum, an insurer foresees being
sued by its own insured in any forum when a coverage dis-
pute arises.” Id. at 1095. While it ultimately concluded that
“contracting to defend the insured in the forum state” is a suf-
ficient minimum contact with the forum, it stressed that this
kind of contact is “qualitatively low on the due process scale.”
Id. 6 Notwithstanding these concerns, the Tenth Circuit inex-
plicably went even further in TH Agriculture by characterizing
a territory-of-coverage clause as a sufficient contact with the
forum state not only when an insurer assumes the duty to de-
fend the insured, but also when it merely preserves the right
to do so. 488 F.3d at 1291.
In the years since the Tenth Circuit decided TH Agricul-
ture, the Supreme Court has continued to stress that the fore-
seeability of suit in a forum is not enough to justify a state’s
exercise of jurisdiction over a defendant. See Walden, 571 U.S.
at 284–86; Nicastro, 564 U.S. at 882–83 (plurality opinion).
Given these cases, the Tenth Circuit might come out differ-
ently if it were presented with the “minimum contacts” ques-
tion today. Regardless, we must follow the Court’s admoni-
tion that the predictability of a plaintiff’s action is not itself
enough to justify a state’s exercise of jurisdiction over a de-
fendant. Walden, 571 U.S. at 286. Zurich and Taian had a rela-
tionship with Trek, not Wisconsin. That relationship may
have made it foreseeable that Trek would sue them in Trek’s
6 As in TH Agriculture, the court held that the forum state nonetheless
lacked personal jurisdiction over the insurers because exercising it would
violate traditional notions of fair play and substantial justice. OMI Hold-
ings, Inc., 149 F.3d at 1098.
No. 18-1141 17
home state or another forum it found convenient. 7 But “it is
the defendant’s actions, not his expectations, that empower a
[foreign state] to subject him to judgment.” Nicastro, 564 U.S.
at 883 (plurality opinion). And Zurich and Taian did not make
any purposeful contact with Wisconsin by promising to in-
demnify Trek for liability and defense costs that it incurred
anywhere in the world.
7 We note that Lexington would run into trouble even if we agreed
that the “worldwide coverage” clause constituted a sufficient “minimum
contact” with Wisconsin. To establish specific personal jurisdiction, Lex-
ington’s action must “directly arise out of the specific contacts between the
defendant[s] and the forum state.” GCIU-Emp’r Ret. Fund v. Goldfarb Corp.,
565 F.3d 1018, 1024 (7th Cir. 2009) (citation omitted). In other words, “a
defendant’s contacts with the forum State [must] be directly related to the
conduct pertaining to the claims asserted.” Brook v. McCormley, 873 F.3d
549, 552 (7th Cir. 2017). Because Lexington’s harm stems from the insurers’
failure to reimburse it for defense and settlement costs in a Texas lawsuit
about a Texas accident, it is not “directly related” to Zurich and Taian’s
alleged contacts with Wisconsin—unless Lexington’s theory is that the
“worldwide coverage” clause opens the possibility of a suit in Wisconsin
for liability and defense costs that Trek incurs anywhere in the world. Cf.
TH Agric., 488 F.3d at 1291–92 (“[The plaintiff] is seeking coverage under
the policy for judgments entered against it and costs incurred in litigating
asbestos claims, at least one of which was filed in Kansas. Consequently,
[the plaintiff]’s claims arise out of the Insurers’ contact with Kansas.”).
And even if Lexington could successfully show that its suit directly relates
to the insurers’ contact with Wisconsin via the “worldwide coverage”
clause, it would still have to show that Wisconsin’s exercise of jurisdiction
over the insurers would be reasonable. See Asahi Metal Indus. Co. v. Sup.
Ct. of Cal., Solano Cty., 480 U.S. 102, 114-16 (1987). Lexington would have
difficulty clearing that hurdle too. Cf. TH Agriculture, 488 F.3d at 1292–98.
18 No. 18-1141
***
Because Lexington failed to show that Zurich and Taian
have sufficient minimum contacts with the state of Wisconsin,
we agree with the district court that exercising jurisdiction
over the insurance companies would violate due process. The
district court’s dismissal of the case for lack of personal juris-
diction is AFFIRMED.