Semanick v. State Automobile Mutual Ins. Cos. CA2/2 ( 2023 )

Filed 1/25/23 Semanick v. State Automobile Mutual Ins. Cos. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BRITTNEY SEMANICK, B316340
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV20627)
v.
STATE AUTOMOBILE
MUTUAL INSURANCE
COMPANIES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lia R. Martin, Judge. Affirmed.
Parris Law Firm, R. Rex Parris, Alexander Wheeler,
Jason P. Fowler, Jonathan W. Douglass and Mark G. Shihady for
Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Julian J. Pardini and
W. Eric Blumhardt for Defendant and Respondent.
Brittney Semanick (appellant) appeals from a judgment of
dismissal with prejudice entered after the trial court granted
respondent State Automobile Mututal Insurance Companies’
(respondent) motion to quash appellant’s summons and
complaint on the ground that the trial court lacked personal
jurisdiction over respondent. We affirm the judgment.
FACTUAL BACKGROUND
On March 13, 2018, respondent issued a “Personal Auto
Policy” (policy) to Patty and Daniel Semanick, who were residents
of Indiana. The policy was in effect from March 13, 2018, to
September 13, 2018, and provided uninsured and underinsured
motorist coverage.
The policy provided coverage to the Semanicks as well as
any “family member,” which the policy defined as “a person
related to [the Semanicks] by blood, marriage or adoption who is
a resident of [the Semanick’s] household.” The policy was issued
through an Indiana agent with the understanding that all of the
vehicles insured under the policy were registered and principally
garaged in Indiana. The policy applied to accidents and losses
occurring “[w]ithin the policy territory.” The policy territory
included the United States of America, its territories, or
possessions; Puerto Rico; and Canada.
Appellant is the daughter of the policyholders, Patty and
Daniel Semanick. Although appellant is not a named insured,
she is listed on the policy as a covered driver.
On July 4, 2018, appellant was injured in an accident in
West Hollywood, California. Appellant was a pedestrian crossing
Santa Monica Boulevard when she was hit by a drunk driver.
Appellant sustained severe injuries and incurred substantial
damages.
2
Appellant made a claim against the responsible driver, and
he tendered his $15,000 policy limit. However, the policy limit
was insufficient to cover appellant’s damages, and she submitted
a claim to respondent under the underinsured motorist provisions
of her parents’ policy.
Respondent retained a California law firm to investigate
appellant’s claim that she was entitled to benefits under her
parents’ policy as a “resident” of her parents’ household. The
attorneys conducted discovery and performed an examination of
appellant under oath in their Los Angeles office on September 28,
2018. Appellant testified that her legal address, found on her
driver’s license, was her parents’ home in Highland, Indiana.
However, she stated that her current residence was in Los
Angeles, California, where she had moved approximately three
years earlier. Appellant testified that she traveled back and
forth between the two addresses. Following the completion of its
investigation, respondent denied appellant’s claim on the ground
that, at the time of the accident, appellant was not a resident of
her parents’ household and therefore did not fall within the scope
of the policy’s definitions of “family member” or “insured.”
PROCEDURAL HISTORY
Appellant filed a lawsuit against respondent in the superior
court for Los Angeles County on June 1, 2020. Appellant’s
complaint asserted two causes of action: (1) breach of contract for
failure to pay benefits under the policy and (2) breach of the
implied covenant of good faith and fair dealing. The complaint
also included a claim for declaratory relief, seeking a finding that
appellant was a resident relative under the policy. Appellant
3
personally served respondent with the summons and complaint
at its offices at 518 East Broad Street in Columbus, Ohio.1
On October 21, 2020, respondent moved to quash service of
the summons and complaint. Respondent argued that it was a
nonresident with no connection to California. Respondent
asserted that it does not maintain offices in California, conducts
no business, marketing, or advertising in California, and does not
sell insurance policies in California. Further, it derives no
revenue in California, holds no investments, commercial loans,
real property, or bank accounts in California. Respondent had
not sought or received approval from California’s Department of
Insurance to issue or deliver its insurance products in California.
Respondent argued that it did not have sufficient minimum
contacts with California to support the exercise of personal
jurisdiction over respondent in California. Specifically, it did not
have sufficiently continuous or substantial contacts with
California to support general jurisdiction, and it did not
purposefully avail itself of California’s forum benefits to support
specific jurisdiction. Appellant opposed the motion, arguing that
respondent’s policy coverage territory covered accidents occurring
anywhere in the United States, including California. Appellant
also argued that respondent’s postaccident investigation,
utilizing the services of a California law firm, subjected
respondent to jurisdiction in California.
On August 31, 2021, the trial court heard respondent’s
motion to quash. Following oral argument, the trial court
1 Respondent is a corporation organized under the laws of
Ohio with its principal place of business in Columbus, Ohio. Its
claims department is located at its corporate headquarters in
Columbus, and it does not maintain any offices in California.
4
granted the motion. The trial court found that appellant failed to
establish that respondent engaged in any significant activities in
California. The court noted, “There was no lawsuit filed in
California over the accident in which plaintiff was injured.
Defendant was not involved in plaintiff’s settlement with the
driver. The only connection to California is that defendant
responded to plaintiff’s claim, using a California law firm because
plaintiff was in California at the time she made the claim. That
is not sufficient to support personal jurisdiction.”
Judgment was entered on October 4, 2021. Appellant filed
her notice of appeal on October 29, 2021.
DISCUSSION
I. Standard of review
The parties agree that the sole issue presented by this
appeal is whether the trial court may exercise personal
jurisdiction over respondent in in connection with the coverage
dispute between the parties.
On appeal from a judgment quashing service of a summons
and complaint based on lack of personal jurisdiction, we review
the trial court’s legal conclusions de novo. (Snowney v. Harrah’s
Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) “When no
conflict in the evidence exists . . . , the question of jurisdiction is
purely one of law and the reviewing court engages in an
independent review of the record.” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.) Where relevant
facts are disputed, the substantial evidence standard applies.
(Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 272
(Pavlovich).)
5
II. Applicable law regarding jurisdiction
Code of Civil Procedure section 410.10 permits a court in
California to exercise personal jurisdiction over a defendant “on
any basis not inconsistent with the Constitution of this state or of
the United States.” Accordingly, California courts may rely on
federal court opinions to determine whether an exercise of
personal jurisdiction will violate due process. (See, e.g.,
Cornelison v. Chaney (1976) 16 Cal.3d 143, 147 (Cornelison)
[relying on U.S. Supreme Court decisions when analyzing
personal jurisdiction].)
The exercise of personal jurisdiction is constitutionally
permissible if the defendant purposefully established “‘minimum
contacts’” with the forum state to make jurisdiction reasonable.
(Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 474,
quoting International Shoe Co. v. Washington (1945) 326 U.S.
310, 316.) “Jurisdiction is proper . . . where the contacts
proximately result from actions by the defendant himself that
create a ‘substantial connection’ with the forum State.” (Burger
King, at p. 475.) “‘The unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum State.’” (Id. at p. 474.)
“Under the minimum contacts test, ‘an essential criterion in all
cases is whether the “quality and nature” of the defendant’s
activity is such that it is “reasonable” and “fair” to require him to
conduct his defense in that State.’” (Pavlovich, supra, 29 Cal.4th
at p. 268.)
“‘Personal jurisdiction may be either general or specific.’”
(Pavlovich, supra, 29 Cal.4th at pp. 268-269.) General
jurisdiction applies where the defendant’s activities in the forum
state are “‘extensive or wide-ranging’” or “‘substantial . . .
continuous and systematic’” in a manner that warrants
6
jurisdiction. (Cornelison, supra, 16 Cal.3d at p. 147.) Appellant
makes no argument that respondent’s contacts with California
are so extensive or continuous that general jurisdiction is proper.
If a defendant’s activities in the forum are not so pervasive
as to justify general jurisdiction over him, a state may still have
specific jurisdiction over a defendant depending upon “the quality
and nature of his activity in the forum in relation to the
particular cause of action.” (Cornelison, supra, 16 Cal.3d at
p. 148.) Such jurisdiction is also referred to as specific or “case-
linked jurisdiction.” (Rivelli v. Hemm (2021) 67 Cal.App.5th 380,
392 (Rivelli).) When determining whether specific jurisdiction
exists, a court must consider the “‘“relationship among the
defendant, the forum, and the litigation.”’” (Pavlovich, supra, 29
Cal.4th at p. 269.) A court may exercise specific jurisdiction if
three requirements are met: “(1) ‘the defendant has purposefully
availed himself or herself of forum benefits’ [citation]; (2) ‘the
“controversy is related to or ‘arises out of’ [the] defendant’s
contacts with the forum”’ [citation]; and (3) ‘“the assertion of
personal jurisdiction would comport with ‘fair play and
substantial justice’”’ [citations].” (Ibid.) “The case-linked
jurisdictional analysis is intensely fact-specific.” (Rivelli, at
p. 392.)
III. Specific jurisdiction as to respondent
In determining whether California may constitutionally
assert specific jurisdiction over respondent in this matter, we
analyze the three applicable elements set forth above. We
conclude that the exercise of jurisdiction over respondent in this
matter does not comport with the constitutional principles
expressed in the relevant case law.
7
A. Purposeful availment
To assert specific jurisdiction over respondent, we first
analyze whether respondent has purposefully availed itself of the
forum’s benefits. “‘The purposeful availment inquiry . . . focuses
on the defendant’s intentionality.’” (Pavlovich, supra, 29 Cal.4th
at p. 269.) This prong is only satisfied when “the defendant
purposefully and voluntarily directs his activities toward the
forum so that he should expect, by virtue of the benefit he
receives, to be subject to the court’s jurisdiction.” (Ibid.)
The facts of this case do not show that respondent
intentionally availed itself of the benefits of the state by
conducting activities in this state. Respondent maintains no
offices in California, does not advertise its insurance policies in
California, and does not issue insurance policies in California.
The policy at issue was issued to appellant’s parents in Indiana,
where appellant claims to be a resident. In short, there is no
evidence that respondent has ever intentionally conducted
business in California. As the trial court pointed out, the only
apparent connection between respondent and the State of
California is that appellant was in California at the time she
made the claim.2
2 Generally, a foreign insurance company does not subject
itself to specific jurisdiction in California by virtue of its insured
simply moving to this state. (Elkman v. National States Ins. Co.
(2009) 173 Cal.App.4th 1305, 1321 [“It was the unilateral
decisions of Elkman and other insureds to relocate to California
which caused [the foreign insurance company] to accept
payments from this state and to process and pay claims for
services rendered in this state. These circumstances do not
support a finding [the insurance company] purposefully availed
8
Appellant argues that a nonresident insurance company
may be subjected to specific jurisdiction in California when (1)
the insurance company provides policy coverage that extends to
the forum state and (2) an insured event results in litigation
there. In making this assertion, appellant relies on several cases,
including Southeastern Express Systems v. Southern Guaranty
Ins. Co. (1995) 34 Cal.App.4th 1 (Southeastern). Southeastern
involved an insurance company that provided commercial
liability coverage to an interstate business. The policy covered
injuries arising from offenses committed in California. (Id. at
p. 4.) The respondent insurance company was a corporation
organized under the laws of Georgia and maintained its principal
place of business in Georgia. The insured appellant was a
business organized under the laws of Georgia selling and
servicing computers throughout many states, including
California. When the appellant was sued in the United States
District Court for the Northern District of California, it tendered
its defense to the insurance company, which refused to pay for
the appellant’s cost of defense. (Id. at pp. 4-5.) The appellant
then brought the underlying action for breach of contract and bad
faith insurance in state court in California. The insurance
company moved to quash service, and the motion was granted.
The Southeastern court reversed, noting that “the exercise
of personal jurisdiction is not dictated by the place of contracting
or performance, but is guided by a realistic approach which
considers the contractual relationship in its totality, including
the terms of the contract and the contemplated future
consequences of the obligations assumed.” (Southeastern, supra,
itself of forum benefits so as to make it subject to specific
jurisdiction in California.”].)
9
34 Cal.App.4th at p. 6.) The Southeastern court evaluated the
contract at issue, pointing out that it obligated the respondent
insurer to “defend and indemnify advertising injuries for offenses
committed by appellants in the ‘coverage territory,’” which was
defined as the United States, Puerto Rico and Canada. (Ibid.)
The Southeastern court held that it was “neither unreasonable
nor unfair to require an insurer who has assumed the
responsibility of defending its insured in California to defend
itself when it refuses its insured’s defense in a suit brought in
California.” (Id. at pp. 6-7.) The Southeastern court refused to
“categorically deny an insured a local forum to dispute its
insurer’s refusal to defend an action pending in the state.” (Id. at
p. 8.)
Southeastern is distinguishable in several important ways.
First, the contract between the parties specifically contemplated
that the insured would be engaging in interstate commercial
activity, and the contract provided commercial liability insurance
for this interstate activity. As the Southeastern court noted, it
was foreseeable that “the insurers would be called into a foreign
forum, given the nationwide distribution of the insured’s products
which the insurers were charged with knowing about.”
(Southeastern, supra, 34 Cal.App.4th at p. 11.) Under those
circumstances, “‘insurers cannot be said to have failed to avail
themselves, in a conscious and deliberate manner, of the benefits
of doing business in those fora in which the insured manufacturer
distributes its products.’” (Ibid.) In contrast to the commercial
liability policy at issue in Southeastern, in which the insurance
company knowingly insured interstate business activity, the
respondent here did not knowingly insure interstate business
activity. Instead, it provided coverage to Indiana residents for
cars principally garaged in Indiana.
10
Second, the coverage lawsuit in Southeastern arose out of a
lawsuit pending in California against the insureds.
(Southeastern, supra, 34 Cal.App.4th at pp. 6-8.) The
Southeastern court’s primary focus was that the insurance
company had denied “a duty to defend alleged losses arising
here.” (Id. at p. 4.) The insureds had been sued in California,
and the Southeastern court felt it would be unfair to
“categorically deny an insured a local forum to dispute its
insurer’s refusal to defend an action pending in the state.” (Id. at
p. 8.) Here, in contrast, there is no action pending in this state
involving appellant, thus respondent has no obligation to defend
appellant in this state. Consequently, this element of fairness to
the insured is not present.
The Southeastern court relied on McClanahan v. Trans-
America Ins. Co. (1957) 149 Cal.App.2d 171 (McClanahan), which
appellant also cites in support of her position in this appeal. In
McClanahan, residents of Washington recovered a judgment in
California state court against the insurance company’s insureds,
who were residents of Colombia, arising out of an automobile
collision in California. The foreign defendant insurance company
failed to pay the judgment, resulting in the action against the
insurance company by the third party creditors of the insureds.
(Id. at pp. 171-172.) The McClanahan court noted that “it is
apparent that no hard and fast rule can be adopted which would
apply to all cases[;] it is obvious that the final determination
must be predicated upon the peculiar facts of each individual
case.” (Id. at p. 172.) After analyzing the specific facts of the
case, the McClanahan court determined that jurisdiction was
proper. The McClanahan court noted that it is “the combination
of local activities conducted by the foreign corporation, the
manner, nature and extent thereof, which is determinative” of
11
the jurisdictional question. (Id. at p. 172.) In that case, the
insurance company had engaged an adjustment service agency
located in California to investigate the claims, settled one claim,
defended another through trial, and made several offers of
settlement. (Id. at p. 173.) In addition to preparing and
defending the case brought by the plaintiffs, there was evidence
that the insurance company “ha[d] adjusted and defended
numerous cases in California.” (Id. at p. 174.)
Respondent’s activities in California do not rise to the same
level of purposeful availment as existed in McClanahan. As
there was no lawsuit arising out of appellant’s accident in
California, respondent was not required to defend a lawsuit or
negotiate a settlement here. Nor was there any evidence that
respondent has done so in the past. Appellant points out that
respondent hired a local law firm in California to investigate her
claim that she was a resident of Indiana and invoked California
law to deny coverage. However, the investigation of appellant’s
postaccident claim cannot be considered purposeful availment.
(See Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co.
(9th Cir. 1990) 907 F.2d 911, 913 (Portage) [“The district court
properly placed little weight on post-accident communications.
Only contacts occurring prior to the event causing the litigation
may be considered. [Citation.] Significant consideration of post-
accident investigation and settlement contacts would deter good
faith attempts by insurers to settle.”].) Appellant agrees that
“post-accident conduct may not, on its own, establish minimum
contacts.” Further, the question of governing law is not relevant
to the jurisdictional analysis. (Halyard Health, Inc. v. Kimberly-
Clark Corp. (2019) 43 Cal.App.5th 1062, 1071 [holding that the
question of governing law “has no place in our jurisdictional
analysis”].)
12
Appellant emphasizes language in both Southeastern and
McClanahan suggesting that “insurers of rambling
automobiles . . . should reasonably anticipate being called into
foreign forums.” (Southeastern, supra, 34 Cal.App.4th at p. 9; see
McClanahan, supra, 149 Cal.App.2d at p. 171 [“[i]t could be said
that from the very nature of defendant’s business, the insuring of
automobile owners, that . . . the holder thereof might at some
time be a user of the highways of this state . . .”].) However,
appellant provides no case holding that providing an automobile
insurance policy that covers incidents within the state alone is
sufficient, without more, to show the required purposeful
availment of state benefits. Case law suggests that the issuance
of a policy covering incidents in California alone is not sufficient
to constitute “purposeful availment” of the benefits of this forum.
(See, e.g., Benefit Assn. Internat., Inc. v. Superior Court (1996) 46
Cal.App.4th 827, 833-834 (Benefit) [finding that insurance
company’s agreement to pay medical expenses incurred in
California insufficient to constitute purposeful availment when
the plaintiff “fail[ed] to present any evidence that [the insurance
company] has been involved with California or ‘purposely availed’
itself of California’s economic market”].)
Further, reasonable anticipation of being called into court
is different from purposeful availment. As noted in Benefit,
“insuring . . . foreign citizens, knowing they might travel in
California, [does] not constitute purposefully availing itself of the
benefits of the economic market in California.” (Benefit, supra,
46 Cal.App.4th at p. 834; see Tri-West Ins. Services, Inc. v.
Seguros Monterrey Aetna, S.A. (2000) 78 Cal.App.4th 672, 677-
678 [insurance company providing transit insurance covering
goods being transported to and from Mexico not subject to
jurisdiction in this state where “the sole act through which such
13
jurisdiction could arise was the issuance of an insurance policy
which covered goods while in transit in California”].) The United
States Supreme Court has cautioned that “‘“foreseeability” alone
has never been a sufficient benchmark for personal jurisdiction
under the Due Process Clause.’” (OMI Holdings, Inc. v. Royal
Ins. Co. of Canada (10th Cir. 1998) 149 F.3d 1086, 1094 (OMI
Holdings), quoting World-Wide Volkswagen Corp. v. Woodson
(1980) 444 U.S. 286, 295 (World-Wide).) Thus, contrary to the
statement in Southeastern, an insurer’s “reasonabl[e]
anticipa[tion]” of being called into court in California is
insufficient to create jurisdiction. (Southeastern, supra, 34
Cal.App.4th at p. 9.)3
The issue of purposeful availment is focused on the
defendant’s “‘intentionality’” (Pavlovich, supra, 29 Cal.4th at
p. 269), and is “intensely fact-specific” (Rivelli, supra, 67
Cal.App.5th at p. 392). We find that under the circumstances of
this specific case, the minimum contacts to assert personal
jurisdiction over respondent are lacking.
Portage, supra, 907 F.2d 911 and Rossman v. State Farm
Mut. Auto. Ins. Co. (4th Cir. 1987) 832 F.2d 282, federal cases
cited by appellant, are distinguishable on the grounds that the
insurance companies availed themselves of the courts in the
relevant jurisdictions in order to defend or settle litigation there.4
3 We note that the dissent relies exclusively on Southeastern
and fails to discuss the constitutional principles set forth in
World-Wide, OMI Holdings, and Benefit.
4 We decline to discuss McGow v. McCurry (11th Cir. 2005)
412 F.3d 1207, as the decision has been abrogated after the 11th
Circuit determined that the long-arm statute on which the
decision was based “was not coextensive with constitutional due
14
As the parties point out, certain cases have distinguished
between a nonresident liability insurer being sued for failure to
defend an insured in a foreign state and a nonresident insurer
being sued in the foreign state to provide first party benefits.
(See, e.g., OMI Holdings, supra, 149 F.3d at p. 1095 [“While it is
reasonably foreseeable that an insured would be involved in
litigation with a third-party in another forum, it is not
necessarily foreseeable that a dispute between the insured and
the insurer over an insurance contract prepared, negotiated, and
executed pursuant to Canadian law in Canada with a Canadian
company would be litigated in a foreign forum where neither
party has any contacts.”].) The Southeastern court rejected this
distinction, finding it irrelevant. Instead, the Southeastern court
explained, “the important question is whether the nonresident
defendant has ‘purposefully availed’ itself of the benefits of an
economic market in the forum state.” (Southeastern, supra, 34
Cal.App.4th at p. 10.)
We agree with the Southeastern court that the question is
not the type of lawsuit involved, but whether the facts before us
show purposeful availment of the state’s benefits. Under the
circumstances of this case, where the respondent had no contacts
with California other than investigating appellant’s claim for
underinsured motorist coverage, we find respondent’s minimum
contacts to be insufficient.
process.” (W. World Ins. Co. v. Narconon of Ga., Inc. (N.D. Ga.
2014) 2014 U.S. Dist. LEXIS 206003, *8 [2014 WL 11860698]; see
Diamond Crystal Brands, Inc. v. Food Movers Internat., Inc.
(11th Cir. 2010) 593 F.3d 1249, 1263.)
15
B. Whether the claim arises out of respondent’s
contacts with California
In addition to the requirement of evidence that respondent
purposely availed itself of the economic benefits of California,
appellant must also prove that the claim she has asserted against
respondent arises out of or relates to respondent’s contacts with
California. (Halyard Health, Inc. v. Kimberly-Clark Corp., supra,43 Cal.App.5th at p. 1070.)
As set forth above, appellant has failed to show that
respondent has any contacts with California other than a
postaccident investigation of appellant’s claim for underinsured
motorist coverage. Her claim against respondent involves a
contract between respondent and appellant’s parents—a contract
issued in Indiana to Indiana residents. The question of whether
appellant is an insured under that policy does not involve any
contact that respondent has had with California. Although
appellant sustained her injuries in California, the resolution of
her claims in that accident did not involve respondent’s alleged
obligation to defend her nor did it require respondent to avail
itself of the court system here. Thus, appellant has failed to show
that the claim she has asserted arises out of any contact
respondent has had with California, and appellant has failed to
meet this second prong of the specific jurisdiction test.
C. Fair play and substantial justice
The final element of the test for specific jurisdiction is
whether the assertion of personal jurisdiction would comport
with “‘“fair play and substantial justice.”’” (Vons Companies, Inc.
v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 447.) However, this
element is not relevant unless the plaintiff has established that
the defendant has sufficient minimum contacts with the state.
(Ibid. [“‘[O]nce it has been decided that a defendant purposefully
16
established minimum contacts within the forum State, these
contacts may be considered in light of other factors to determine
whether the assertion of personal jurisdiction would comport
with “fair play and substantial justice.”’”].) In determining
whether personal jurisdiction would comport with fair play and
substantial justice, courts may evaluate “the burden on the
defendant of appearing in the forum, the forum state’s interest in
adjudicating the claim, the plaintiff’s interest in convenient and
effective relief within the forum, judicial economy, and ‘the
“shared interest of the several States in furthering fundamental
substantive social policies.”’” (Id. at p. 448.)
Semanick has failed to establish that respondent has
purposefully availed itself of the benefits of doing business in
California or that her claims are related to activities of
respondent in this state. Therefore, we need not discuss the
fairness element of personal jurisdiction. However, we note that
California has little interest in adjudicating a dispute between
appellant, who claims to be an Indiana resident, and respondent
on a contract formed in Indiana and subject to Indiana law.
Appellant emphasizes that the evidence and witnesses
relating to the accident are present in California. However, the
issue in this case does not concern liability or damages resulting
from the accident. Instead, the issue is whether appellant is a
resident of Indiana for the purposes of her coverage claim under
her parents’ contract with respondent. Appellant emphasizes the
location of the accident in arguing that the California forum
provides her convenient and effective relief, and promotes judicial
economy. Again, because the details of the accident itself are not
at issue in this lawsuit, appellant fails to convince us that
California is the most efficient forum for this dispute. As it
involves an Indiana contract formed in the state of Indiana, and
17
the primary issue is whether appellant is an Indiana resident,
considerations of convenience and judicial economy weigh in
favor of disallowing specific jurisdiction. Finally, as both parties
point out, in the event that appellant is determined to be an
Indiana resident and respondent must provide coverage, any
dispute over the amount of recovery must be arbitrated “in the
county in which the ‘insured’ lives.” Thus, if appellant is indeed a
resident of Indiana and entitled to coverage, any further disputes
must be arbitrated in Indiana.
Considering all the elements set forth above, we conclude
that the exercise of jurisdiction over respondent under the
specific circumstances of this case is inconsistent with the
constitutional limits on judicial power.
DISPOSITION
The judgment is affirmed. Each side is to bear their own
costs of appeal.
_____________________
CHAVEZ, Acting P. J.
I concur:
_________________________
HOFFSTADT, J.
18
Brittney Semanick v. State Automobile Mutual Insurance
Companies
B316340
Benke, J.,* Dissenting
There are multiple ways to interpret the constellation of
cases addressing the existence of specific jurisdiction. I part
company with my colleagues as to the picture created in this case
by that constellation, and conclude the nationwide territory of
coverage here, which encompasses third party liability coverage
and coverage for damages caused to the insureds by
underinsured motorists, constitutes “purposeful availment” of the
privilege of conducting activity within California. Thus, I would
find specific jurisdiction exists.
Southeastern Express Systems v. Southern Guaranty Ins.
Co. (1995) 34 Cal.App.4th 1 (Southestern) is central to my
analysis. There, residents of Georgia brought an action in
California against their Georgia insurance company for refusing
to defend a federal case brought against them in California. The
insurance policy issued by the Georgia insurance company
provided nationwide, third party liability coverage. When the
trial court in California granted the insurance company’s request
to quash service of process for lack of jurisdiction, plaintiff
Georgia residents (the insureds) appealed, and the Southeastern
court reversed, concluding that given the nature of the territory
of coverage, a wrongful refusal to defend the action is subject to
specific jurisdiction in California.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Southeastern can be read broadly as suggesting a
nationwide territory of coverage clause may subject the insurance
company to a state’s specific jurisdiction where it purposely
avails itself of the benefits of an economic market in the forum
state (i.e., California). The court discussed at length how an
economic market analysis operates, namely, that in writing and
selling its insurance policy as one providing nationwide coverage,
and collecting insurance premiums calculated upon that broad
coverage, the insurance company benefited from the economic
market of all states in which the insured faced liability, including
California. This benefit in turn establishes purposeful availment.
With its economic analysis as background, Southeastern
concluded that where there is third party liability coverage in the
territory of coverage, the insurance company expects and agrees
it will be called into the forum state if there is a third party
lawsuit and thus should reasonably anticipate being called into
forum courts if it denies coverage and is sued in the forum state.
(Southeastern, supra, 34 Cal.App.4th at pp. 6-7.) I see no reason
why this logic does not apply in this case.
There are several arguments available that Southeastern is
not applicable to our case. One argument is that Southeastern is
factually confined to third party liability coverage in cases
involving commercial entities. I would first point out that the
opinion appears to expressly erase the analytical distinction
between third and first party coverage. The panel noted it was
“not persuaded that a constitutionally significant distinction
exists between first party and third party actions against a
nonresident insurer providing nationwide coverage.”
(Southeastern, supra, 34 Cal.App.4th at p. 10.) Moreover,
although one might argue it is only coverage of commercial
entities to which Southeastern addresses itself, nothing in the
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opinion appears to so confine its holding and rationale. The fact a
commercial entity was involved constitutes a difference in facts
but not one limiting the application of Southeastern. Rather, I
believe the case exemplifies the observation that each case must
be examined individually to discern the parties’ intent. In
Southeastern, the insurance company issued a nationwide policy
designed to address the concerns of a commercial enterprise.
Thus, although our respondent agreed to cover damages for
bodily injury or property damage any insured becomes legally
responsible to pay, including a duty to settle or defend,
respondent’s policy is also drawn to address an important concern
of insureds traveling through multiple jurisdictions, namely that
an underinsured motorist may subject them to injury and
damages. By addressing this concern, and expressly carving out
this specific obligation, respondent surely anticipated it might
choose to avail itself of the jurisdiction of any forum where such
damage or injury caused by underinsured motorists, occurred. In
declining such underinsured coverage, respondent should not be
surprised it is being sued in the state where such damage and
injury occurred.
I believe the economic reach of the territory of coverage
clause, coupled with the third party liability coverage
(anticipated defense of insureds in California), and coverage of
damages to the insured for injury by an underinsured motor
vehicle, bring this case within the ambit of those cases that would
find specific jurisdiction in California.
Further, I do not observe any compelling reason why
California, once determined to have specific jurisdiction, is an
inconvenient forum. The accident occurred in California,
witnesses are in this state, as is other evidence. Moreover,
respondent has demonstrated it is quite capable of mounting a
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defense with the assistance of law firms in this state, and indeed
it may anticipate being called into, or employing, California
courts if third party coverage liability arises.
Finally, I do not suggest coverage is ultimately owed. The
issue of whether Brittney is covered by her parents’ policy is not
before us.
___________________________
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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