Katopothis v. Windsor Mount Joy Mutual Insurance Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VASILLI KATOPOTHIS and FRANCESCA
DAHLGREN,
Plaintiffs,
v.
WINDSOR-MOUNT JOY MUTUAL
INSURANCE COMPANY,
Defendant / Third Party
Plaintiff,
Civil Action No. 14-380 (RDM)
and
R.W. HOME SERVICES, INC. d/b/a GALE
FORCE CLEANING AND RESTORATION,
Defendant,
v.
R.W. HOME SERVICES, INC. d/b/a GALE
FORCE CLEANING AND RESTORATION,
Third Party Defendant.
MEMORANDUM OPINION
This case arises from a plumbing accident at the Delaware vacation home of Francesca
Dahlgren and her husband Vasilli Katopothis (“Plaintiffs”), who are residents of the District of
Columbia. Dkt. 5-1 at 3. While Plaintiffs were in the District, a pipe failure flooded their
Delaware residence, leading to an infestation of mold and, Plaintiffs say, necessitating the
demolition of the home. They allege losses of more than $800,000. Dkt. 35 at 6, 12.
Plaintiffs now seek to recover from two defendants. First, they have sued their home
insurance provider, Windsor-Mount Joy Mutual Insurance Co. (“Windsor”), a Pennsylvania
corporation with its principal place of business in Pennsylvania. Dkt. 5-1 at 3. Plaintiffs claim
that Windsor breached their insurance contract by refusing to cover Plaintiffs’ loss. Dkt. 35 at 2–
6 (Am. Compl. ¶¶ 5–33). Second, Plaintiffs have sued the company they hired to mitigate the
flood damage, R.W. Home Services, Inc. doing business as Gale Force Cleaning and Restoration
(“Gale Force”), which is a Delaware corporation with its principal place of business in Delaware.
Dkt. 42-5 at 2 (McCreary Decl. ¶ 2). Alleging that Gale Force failed adequately to remediate the
loss, Plaintiffs assert claims against it for breach of contract, negligence, negligent
misrepresentation, and violations of the Delaware Consumer Protection Act. Dkt. 35 at 7–12
(Am. Compl. ¶¶ 39–72). In addition, Windsor has filed a third party complaint against Gale
Force. Dkt. 28. That complaint alleges that, to the extent Windsor is liable to Plaintiffs, it is
subrogated to Plaintiffs’ claims against Gale Force for breach of contract and negligence claims
and that it is also entitled to recover as a matter of common law indemnity and contribution. Id.
Two sets of motions are now before the Court. First, Plaintiffs and Windsor have filed
cross-motions for summary judgment. Plaintiffs have moved for partial summary judgment
against Windsor as to liability—that is, they seek to establish coverage. Dkt. 36. Windsor, in
turn, has cross-moved for summary judgment, arguing that the policy’s “Exclusions for
Unoccupied Residences” exclude Plaintiffs’ loss from coverage. Dkt. 46. Second, Gale Force
has moved to dismiss all claims against it for lack of personal jurisdiction, and has moved to
dismiss Windsor’s subrogation counts for failure to state a claim. Dkt. 42. Plaintiffs and
Windsor oppose the motion to dismiss for lack of personal jurisdiction and, in the alternative,
request leave to conduct additional jurisdictional discovery. Dkts. 48 & 49. Windsor further
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requests that, if personal jurisdiction over Gale Force is lacking, that the Court “vouch-in” Gale
Force or transfer the case to Delaware. Dkt. 48-1 at 7–14. Finally, Windsor opposes the motion
to dismiss the subrogation counts. Id. at 14–18.
For the reasons discussed below, the Court concludes that the insurance policy
unambiguously excludes coverage of Plaintiffs’ claims. As a result, Plaintiffs’ motion for partial
summary judgment will be denied and Windsor’s motion for summary judgment will be granted.
The Court further concludes that it lacks personal jurisdiction over Gale Force with respect to
Plaintiffs’ claims against it, and that further jurisdictional discovery is unwarranted. The Court
will therefore transfer the case to the U.S. District Court for the District of Delaware pursuant to
28 U.S.C. § 1406(a).
I. BACKGROUND
The following facts are undisputed, except where specifically noted:
In the spring of 2000, Plaintiffs purchased a second home in Rehoboth Beach, Delaware.
Dkt. 40-1 (Dahlgren Dep. 23:9–23:15). They have since used it periodically throughout each
year, spending close to forty percent of their time there. Id. at 15:11–15:17. They spend the
remainder of their time in Washington, D.C., where they live and work. Id. at 15:11–15:14,
18:16–18:18; accord Dkt. 40-15 (Katopothis Dep. 7:2–7:13). While Plaintiffs were in the
District for a ten-day period in February 2013, a plumbing accident caused significant damage to
their Delaware home. Dkt. 40-1 (Dahlgren Dep. 102:1–103:3).
A. The Insurance Policy
Plaintiffs contracted with Windsor to insure the Delaware property on an annual basis
starting on June 15, 2000. Dkt. 40 at 13. The policy thereafter renewed every year, with the
operative policy covering the period between June 15, 2012, and June 15, 2013. Dkt. 40 at 13–
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16. It consists of two relevant forms: a twenty-seven-page “Special Form,” Dkt. 40-21 at 3–27,
and a one-page endorsement, labeled “ML-508D (04-06),” id. at 30. Windsor added form ML-
508D to the policy in 2004 and then modified it in 2006. Dkt. 40 at 14–15.
The Special Form defines the policy’s rules of coverage, which differ for real and
personal property. For real property, the policy has what is commonly known as an “all risk”
structure. This means that any direct physical damage to the insured building is covered, unless
the policy specifically identifies the risk of such loss as an “exclusion.” 1 Dkt. 40-21 at 11. For
personal property, the policy has what is known as a “named peril” structure. This means that
personal property is insured only against risks expressly listed in the policy and, even then, only
against risks that are not otherwise excluded. 2 Dkt. 40-21 at 13–14. The “accidental discharge
or overflow” of water from a plumbing system is a risk to personal property expressly covered
by the policy, subject to applicable exclusions. Dkt. 40-21 at 14.
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For real property, the coverage provision states:
[Windsor] insure[s] property covered under Coverages A [the residence] and B
[related private structures] for risks of direct physical loss, unless the loss is
excluded under the Exclusions Applying to Coverages A and B or under the
Exclusions That Apply To Property Coverages.
Dkt. 40-21 at 11 (emphasis added).
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For personal property, the coverage provision states:
[Windsor] insure[s] against direct physical loss to property covered under Coverage
C [personal property] caused by the following perils, unless the loss is excluded
under the Exclusions That Apply to Property Coverages: . . .
13. Accidental Discharge or Overflow of Liquids or Steam from a
plumbing, heating, air-conditioning, or automatic fire or protective
sprinkling system; water heater; or domestic appliance.
Dkt. 40-21 at 13–14 (emphasis added).
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The Special Form also contains three types of exclusions. They are: (1) exclusions
applicable only to real property, 3 see Dkt. 40-21 at 12–13; (2) exclusions applicable to both real
and personal property, and which are subject to an additional “anti-concurrent causation”
clause, 4 see id. at 15–16; and (3) exclusions applicable to both real and personal property, and
which contain an explicit exception allowing coverage for “ensuing loss[es],” 5 see id. at 16–17.
Neither party contends that Plaintiffs’ insurance claim falls within any of these Special Form
exclusions.
The parties dispute only the proper interpretation of the freestanding ML-580D
endorsement, titled “Additional Exclusions for Unoccupied Residences.” Id. at 30. It provides:
3
The first list of exclusions is labeled “Exclusions Applying to Coverage A [the residence] and
B [related private structures].” It includes no prefatory language. Dkt. 40-21 at 12–13.
4
The second list of exclusions is labeled “EXCLUSIONS THAT APPLY TO PROPERTY
COVERAGES.” It includes the following prefatory language:
[Windsor] do[es] not pay for loss if one or more of the following exclusions apply
to the loss, regardless of other causes or events that contribute to or aggravate the
loss, whether such causes or events act to produce the loss before, at the same time
as, or after the excluded causes or events.
Dkt. 40-21 at 15 (emphasis added).
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The third list of exclusions is also labeled “EXCLUSIONS THAT APPLY TO PROPERTY
COVERAGES.” It includes the following prefatory language:
[Windsor] do[es] not pay for loss if one or more of the following exclusions apply
for the loss. However, [Windsor] do[es] pay for an ensuing loss that is otherwise
covered by the policy.
Dkt. 40-21 at 16 (emphasis added).
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ML-508D (04-06)
ADDITIONAL EXCLUSIONS FOR UNOCCUPIED RESIDENCES
In addition to exclusions found elsewhere in your policy, if the insured residence is
vacant, unoccupied (meaning an absence of 72 hours), or under construction and
unoccupied, the Insured must:
a. Maintain Heat in the residence and shut off the water supply where it
enters the residence. If the residence is heated by a hot water system,
the water supply to the heating system must be maintained and the water
supply to the rest of the residence must be shut off.
OR
b. Shut off the water supply where it enters the residence and completely
empty liquids from any plumbing, heating, air condition system, water
heater, or domestic appliance.
If this is not done, we do not pay for loss caused by freezing of or discharge,
leakage, or overflow from any plumbing, heating, or air conditioning system or any
appliance or other equipment attached to it.
Dkt. 40-21 at 30. The Delaware Department of Insurance approved this endorsement, see Dkt.
40-22, as required by Delaware law, see Del. Code tit. 18, § 2714(a).
The same page on which Windsor printed the endorsement also includes an “important
policyholder notice,” labeled “WB-27D (07-11).” See Dkt. 40-21 at 30. Unlike the ML-580D
endorsement, the notice was not submitted for regulatory approval, and, as Windsor itself agrees,
it is not part of the contract. Dkt. 40-3 (Underwood Dep. 87:8–88:13). According to Windsor’s
corporate designee, Windsor included the notice “to help the insured to realize the provisions of
the [ML-508D] exclusion.” Id. The notice that accompanied the operative policy stated:
WB-27D (07-11)
IMPORTANT POLICYHOLDER NOTICE
FAILURE TO FOLLOW THE REQUIREMENTS OF THE POLICY COULD
COST YOU THOUSANDS OF DOLLARS
Be aware that damage from water which escapes from plumbing and heating
systems and appliances is a frequent cause of loss and can cause large claims and
great damage particularly when the leak goes undetected and the water keeps
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running and running for long periods of time. In the past we have paid water
damage claims in excess of $100,000! There are some simple, common sense steps
you can take to minimize these claims and thus save yourself the cost of your
deductible and the inconvenience of major damage to your property. At the same
time, in the long run, minimizing claims can keep insurance rates down and protect
your insurability.
Please read form ML-508D (04-06) which is a part of your policy and states that if
you fail to take one of two steps when the insured property is vacant or unoccupied
(meaning an absence in excess of 72 hours) or under construction and unoccupied,
you will have no coverage for the kinds of water damage described in the form. We
interpret “occupancy” to mean that someone stays there overnight. Other visits to
the premises do not constitute “occupancy.”
If your home does not currently have a means to shut off the water supply where it
enters the home or to shut off the water to the rest of the home if you have a heating
system which uses water, it is your responsibility to have a plumber accommodate
this need.
Therefore, every time the property is going to be unoccupied for more than three
days be sure to take the required measures.
If you have any questions, please contact your agent.
Dkt. 40-21 at 30 (emphasis added). Windsor included similar notices in the policies covering the
years 2006 to 2012, but those notices lacked the italicized language. Dkt. 40 at 14–15; see Dkts.
40-4, 40-5 & 40-6 (previous copies of notice and form ML-580D).
Plaintiffs did not read the ML-580D exclusion or the WB-27D notice until after they
submitted the insurance claim that is the subject of this case. Dkt. 40-1 (Dahlgren Dep. 249:13).
B. The Incident
On February 16, 2013, Francesca Dahlgren returned to her Delaware residence to
find water gushing “[like] a waterfall” from a hole in the ceiling, flooding the house with
about two inches of water. Dkt. 40-1 (Dahlgren Dep. 102:1–102:3, 105:19–107:13,
110:5–110:13). A pressurized water pipe had failed at the joint, causing the leakage and
subsequent flooding. Dkt. 36-1 at 11; Dkt. 40 at 19. The flooding later resulted in the
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proliferation of mold. Dkt. 36-1 at 11. In or around May 2013, Plaintiffs demolished the
residence and built a new home on the property, Dkt. 40 at 19, allegedly as a result of the
water damage and mold infestation, Dkt. 35. at 3 (Am. Compl. ¶ 13).
No person was present at the Delaware property during the six days prior to
February 16, 2013. 6 Dkt. 40-1 (Dahlgren Dep. 102:19–104:8, 198:19–199:8). The last
person at the property had been Plaintiffs’ friend Carol McCann, who checked the doors
and checked for mail at the house on February 10, but did not go inside. Id. Plaintiffs
themselves were last at the property on February 6, 2013. Id. Their belongings,
however, including food, medicine, and clothing, remained in the house throughout the
relevant period. Id. at 198:6–198:14.
Although Plaintiffs did leave the heating system on during their absence, they did
not “shut off the water supply where it enters the residence.” Dkt. 40-21 at 30. Indeed,
as Plaintiffs now emphasize, the house “did not have a water supply valve on the main
water supply where the water enters the home.” Dkt. 36-1 at 7. The record discloses
only two means by which Plaintiffs could have prevented water from flowing into the
house’s plumbing: (1) requesting that a city official turn off the water manually, Dkt.
36-13 at 3; or (2) hiring a plumber to install a master shutoff valve for an estimated one-
time cost of $815, Dkt. 40-10 at 4. Plaintiffs took neither step. Their only actions with
respect to the water supply were to shut off “the water supply to the outside shower” and
“the water supply to the outside hose,” Dkt. 40-1 (Dahlgren Dep. 199:16–199:18)—that
is, to prevent water from flowing out of the house’s plumbing system. Dahlgren testified
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The record before the Court does not reveal exactly when the pipe burst. Nonetheless, the
parties do not dispute that, for purposes of the insurance contract, the “loss” occurred on
February 16, 2013. Dkt. 40 at 19; see also Dkt. 35 at 3 (Am. Compl. ¶ 11); Dkt. 36-10 at 2.
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that she believed she “did everything within [her] power to secure the house” before
leaving it on February 6, 2013. Id. at 199:20–200:1.
C. Windsor’s Assessment
Plaintiffs timely filed a claim under their policy with Windsor. Dkt. 1-2 at 6 (Compl.
¶ 22); Dkt. 2-2 at 2 (Answer ¶ 13). Windsor hired a third-party adjuster, Tim Stapf, to assess the
claim and to investigate the “occupancy of the property prior to the loss.” Dkt. 36-10 at 2;
accord Dkt. 36-1 at 11. According to Windsor’s guidelines, third-party adjustors make initial
recommendations as to coverage, but Windsor retains final decisionmaking authority. Dkt.
40-18 at 2. Stapf reported to Windsor’s in-house adjustor, Cheryl Ackley, who in turn reported
to Windsor’s general claims manager, Ed Campbell. Dkt. 36-1 at 11–12; Dkt. 40-19 (Campbell
Decl. ¶¶ 2, 3); Dkt. 40-20 (Ackley Dep. at 6:13–6:20).
On March 3, 2013, Stapf filed a draft report, Dkt. 36-13, in which he recommended that
Windsor approve Plaintiffs’ insurance claim because the house lacked a shutoff valve. He wrote:
It is this writer’s opinion that coverage would be afforded for this loss, as the
property was constructed in such a way that restricts your insured from complying
with the water supply requirements in your ML-508D endorsement. Simply put, it
is not logical or reasonable to require your insured to turn off a water supply valve
that does not exist.
Id. at 3. The report did acknowledge, however, that Plaintiffs could have “compl[ied] with [the
ML-508D] requirement” by “calling the water company and arrang[ing] to have them shut off
the supply line.” Id. at 2–3. (Stapf was unfamiliar with the WB-27(D) notice, recited above,
which referred to the additional possibility that an insured party could have a shutoff valve
installed.) Dkt. 40-17 (Stapf Dep. 63:15–65:11). Because Ackley was out of town at the time,
Stapf escalated this “tricky” issue directly to Campbell. Dkt. 40-20 (Ackley Dep. 87:14–88:7).
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The next day, Campbell requested that Stapf change his report to conform to Windsor’s
standing interpretation of the policy. Dkt. 36-14. Campbell explained that “even [in cases in
which] the insured has no way in which to shut off a portion of the water supply [and] does not
have the system modified to allow this to be done,” the policy “is clear” that “we are not to
afford coverage for this type of loss.” Id. at 2. He said that Plaintiffs had a “duty” to “realize
[that] modifications need[ed] to be done to meet [Windsor’s] requirements” and to “contact a
qualified plumber” if necessary. Id. He then added that, although he personally is “not in
agreement with the position taken by [Windsor],” he had his “marching orders.” Id. Campbell
later testified that he was not commenting on the proper interpretation of the policy, but rather
describing his view that Windsor should not sell policies with the ML-508D (04-06) exclusion at
all. Dkt. 40-19 (Campbell Decl. ¶ 6). Stapf deleted the quoted language from his report, and
modified it to opine that Windsor could either grant or deny coverage. See Dkt. 36-15.
When Ackley later returned from vacation, she expressed confusion regarding the status
of the claim. Dkt. 40-20 (Ackley Dep. 90:3–90:16, 91:10–91:15). She wrote in the case file:
“This is the one [where] the [insured] cannot turn off [the] water . . . ??? [H]ow should this one
be handled?” Dkt. 36-13 at 3; Dkt. 40-20 (Ackley Dep. 80:10–81:7). Upon learning that
Campbell had resolved the issue, she added “per [manager,] denial.” Dkt. 36-13 at 3.
On March 11, 2013, Windsor denied Plaintiffs’ insurance claim. Dkt. 36-17. Windsor
cited the ML-508D exclusion as the reason for the denial, but reserved the right to invoke other
policy terms that might also preclude coverage. Id. at 3.
D. Plaintiffs’ Contract with Gale Force
Plaintiffs hired Gale Force to remediate the water damage from the burst pipe. Dkt. 28 at
2 (Third Party Compl. ¶¶ 4–5); Dkt. 35 at 7 (Am. Compl. ¶ 40). Gale Force is a Delaware
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corporation, with its principle place of business in Delaware. Dkt. 42-5 at 2 (McCreary Decl.
¶ 2). The company has no office in the District, has no registered agent in the District, and is not
registered to do business in the District. Id. at 2–3 (¶¶ 3–10). According to Gale Force’s
president and owner, “[n]o employee or representative of Gale Force traveled to the District of
Columbia in connection with services performed or potentially to be performed” at Plaintiffs’
Delaware property; those services occurred exclusively in Delaware. Id. at 3 (¶¶ 11, 12).
Dahlgren first contacted Gale Force’s Delaware office by telephone about the potential
remediation effort on February 20, 2013. Dkt. 53-1 at 2; Dkt. 53-6 at 2. She apparently placed
the call from her Delaware home. Dkt. 53 at 5; see Dkt. 53-6 at 2 (noting that, at the time of the
call, the customer was “on site”). That same day, representatives from Gale Force met Dahlgren
at her Delaware property, where they entered into a “Work Authorization & Contract for
Emergency Services.” Dkt. 53-1 at 2; see Dkt. 42-4.
The contract listed the Delaware property as the “[s]ervice [a]ddress,” but listed
Plaintiffs’ D.C. home as the “[b]illing [a]ddress.” Id. The top of the contract displayed the
“Gale Force Cleaning & Restoration” logo, as well as the insignia for “1-800-BoardUp”
(“BoardUp”). Id. According to the President of Gale Force, BoardUp is “a marketing model”
that “licenses ‘territories’ to mitigation contractors,” and, “if a call is made to 1-800-BoardUp for
services, those services are referred to the contractor services the territory into which the call
comes.” Dkt. 52-7 at 3 (Supp. McCleary Decl. ¶¶ 3-4). Gale Force “purchased a territory from
1-800-BoardUp and the right to use the name.” Id. (¶ 5). At the relevant time, that territory
included “southern Delaware and part of the eastern shore of Maryland.” Id. If BoardUp
received a call regarding a potential project in the District of Columbia, however, that customer
would have not have been referred to Gale Force and, instead, the call would have gone to
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“whatever 1-800-BoardUp licensee had the territory that included” the District. Id. Plaintiffs,
however, appear to dispute this characterization. See Dkt. 49 at 7–8.
Between February 20 and April 30, 2013, Dahlgren spoke on the telephone from the
District of Columbia with Gale Force employees in Delaware on nine occasions, for a total of
forty-four minutes. Dkt. 48-1 at 4; see Dkt. 48-5 (Dahlgren phone records). Windsor concludes
from the phone records, moreover, that Gale Force initiated four of those calls. Dkt. 48-1 at 4.
The record also includes evidence that Gale Force engaged in at least two email exchanges with
Dahlgren. On February 22, 2013, Gale Force emailed her a cost estimate, to which she
responded on March 20, 2013. Dkt. 48-11 at 1–2.
Both Windsor and Plaintiffs allege that Gale Force failed adequately to remediate the
water damage. See Dkt. 28 at 3 (Third Party Compl. ¶ 7); Dkt. 35 at 7 (Am. Compl. ¶ 42).
According to Windsor, “Gale Force merely installed three dehumidifiers or air removers and left
them at the property for over two months, taking no other remedial actions.” Dkt. 28 at 3 (Third
Party Compl. ¶ 7). This failure allegedly caused mold to proliferate across the residence, which
Plaintiffs contend necessitated the demolition of the house. Dkt. 35 at 4 (Am. Compl. ¶ 15).
II. STANDARD OF REVIEW
Two different legal standards govern the Court’s consideration of the pending motions.
First, Plaintiffs have moved for partial summary judgment, and Windsor has cross-moved
for summary judgment. Summary judgment is appropriately granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986); Holcomb v. Powell, 433 F.3d 889, 895–96 (D.C. Cir. 2006). A fact is “material” if it is
capable of affecting the outcome of the litigation. Liberty Lobby, 477 U.S. at 248; Holcomb, 433
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F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,
477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by . . . citing to particular parts of materials in the
record . . . .” Fed. R. Civ. P. 56(c)(1)(A).
The party seeking summary judgment “bears the heavy burden of establishing that the
merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under
consideration, “the evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447
F.3d 843, 850 (D.C. Cir. 2006). The non-movant's opposition, however, must consist of more
than allegations or denials and must be supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.
P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must provide
evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy,
813 F.2d 1236, 1241 (D.C. Cir. 1987). If his evidence is “merely colorable” or “not significantly
probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at 249–50.
Second, Gale Force has moved under Rule 12(b)(1) to dismiss for lack of personal
jurisdiction. On such a motion, the plaintiffs “[bear] the burden of establishing a factual basis for
the exercise of personal jurisdiction” over each defendant. Crane v. N.Y. Zoological Soc., 894
F.2d 454, 456 (D.C. Cir. 1990). To do so, plaintiffs “must allege specific acts connecting [the]
defendant with the forum” and “cannot rely on conclusory allegations.” Clay v. Blue Hackle N.
Am., LLC, 907 F. Supp. 2d 85, 87 (D.D.C. 2012). The Court “need not treat all of plaintiffs’
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allegations as true” and “may receive and weigh affidavits and any other relevant matter to assist
it in determining the jurisdictional facts.” Id. Ultimately, the Court must “satisfy itself that it has
jurisdiction to hear the suit,” and, to the extent necessary, “may look beyond the allegations of
the complaint” to do so. Achagzai v. Broad. Bd. of Governors, 14-cv-768, 2016 WL 1089214, at
*4 (D.D.C. Mar. 18, 2016).
III. ANALYSIS
A. Plaintiffs’ and Windsor’s Cross-Motions for Summary Judgment
The pending cross-motions for summary judgment deal exclusively with the proper
construction of form ML-508D, which creates “Additional Exclusions for Unoccupied
Residences.” Dkt. 40-21 at 30. The dispute concerns whether form ML-508D’s language is
ambiguous. Windsor argues that the relevant language is clear, and that it, in combination with
the undisputed facts, shows unambiguously that Plaintiffs’ losses are not covered. Dkt. 40.
Plaintiffs, on the other hand, point to three elements of form ML-508D that they say are
ambiguous: (1) the meaning of “unoccupied”; (2) the meaning of the requirement that Plaintiffs
“shut off the water supply where it enters the residence”; and (3) the scope of the ML-508D
exclusion and, in particular, whether it excludes losses to certain types of property, whether it
excludes “ensuing losses,” and whether it employs the “efficient proximate cause” standard of
causation. Dkt. 36-1.
1. Choice of Law
As an initial matter, the parties dispute which jurisdiction’s law governs the interpretation
of the insurance policy. Windsor maintains that D.C. law should control. See Dkt. 40 at 30–32.
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Plaintiffs argue for Delaware law, see Dkt. 36-1 at 15, but also contend that the laws of the two
jurisdictions are in any event identical, see Dkt. 45 at 21. 7
While sitting in diversity, this Court applies the choice-of-law rules of the District of
Columbia. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under those
rules, the Court “must first determine whether there is a conflict between the laws of the relevant
jurisdictions.” Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876, 882 (D.C. Cir. 1985) (citing
Fowler v. A & A Co., 262 A.2d 344, 348 (D.C. 1970)). If no such conflict exists, no choice-of-
law analysis is necessary. Young Women's Christian Ass’n of the Nat’l Capital Area, Inc. v.
Allstate Ins. Co. of Can., 275 F.3d 1145, 1150 (D.C. Cir. 2002) (citing Greycoat Hanover F St.
Ltd. P’ship v. Liberty Mut. Ins. Co., 657 A.2d 764, 767–68 (D.C. 1995)). And no conflict exists
if the laws of the different jurisdictions “would produce the identical result on the facts
presented.” USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C. 2008).
As explained below, the Court concludes that, even if D.C. and Delaware law are not
identical in every relevant respect, they produce identical results in this case. The Court will
therefore apply the law of both jurisdictions, without reaching a definitive conclusion regarding
which law controls.
2. Principles of Insurance Contract Construction
Both Delaware and D.C. courts employ a two-step analysis in resolving asserted
ambiguities in insurance contracts.
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Neither party addresses the clause in the policy that arguably specifies that Delaware law
controls. Dkt. 40-21 at 27 (Policy Condition ¶ 5); see Whiting v. AARP, 637 F.3d 355, 361 (D.C.
Cir. 2011) (explaining that D.C. choice-of-law rules call for the enforcement of choice-of-law
clauses, provided the contract has “some reasonable relationship with the state specified”
(internal quotation mark omitted)); see also Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198,
200–02 (D.C. 1997) (enforcing similarly phrased clause in an insurance contract, where the
clause referred to the law of the jurisdiction in which the insured property was located).
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At the first step, the Court must determine whether the contractual language is, in fact,
ambiguous. Whether contractual language is ambiguous raises a pure question of law. O'Brien
v. Progressive N. Ins. Co., 785 A.2d 281, 286 (Del. 2001); accord Chase v. State Farm Fire &
Cas. Co., 780 A.2d 1123, 1127 (D.C. 2001). In both jurisdictions, “[a]mbiguity exists in
insurance contracts where the language is reasonably susceptible to at least two different
meanings.” Bermel v. Liberty Mut. Fire Ins. Co., 56 A.3d 1062, 1070 (Del. 2012); accord
Chase, 780 A.2d at 1127–28. Both constructions, however, must be reasonable. The goal of the
Court is “not [to] rewrite an insurance policy [or to] ignore its clear and certain terms,” Hallowell
v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 928 (Del. 1982), but rather to give meaning to
the objective record of the parties’ intent. As a result, where an actual ambiguity exists, courts
should say so. But, at the same time, they should not “destroy or twist policy language under the
guise of construing it.” O’Brien, 785 A.2d at 288; accord Chase, 780 A.2d at 1127–28. Thus, if
the Court concludes that the contract language is unambiguous, the analysis ends, and the
insurance contract “should be given ‘its ordinary and usual meaning.’” O’Brien, 785 A.2d at 288
(quoting Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del.
1992)); accord Travelers Indem. Co. v. Workers Int’l Union, 770 A.2d 978, 985–86 (D.C. 2001).
If ambiguity does exist, however, the Court must proceed to the second step.
At the second step, both Delaware and D.C. courts apply interpretive rules designed to
favor the insured. Both jurisdictions, for example, maintain that “where an ambiguity does exist,
the doctrine of contra proferentem requires that the language of an insurance policy be construed
most strongly against the insurance company that drafted it.” O’Brien, 785 A.2d at 288; accord
Cameron v. USAA Prop. & Cas. Ins. Co., 733 A.2d 965, 968 (D.C. 1999). And both
jurisdictions hold that the policy must be construed in accord with the “reasonable expectations”
16
of the insured. Hallowell, 443 A.2d at 926–27; accord Chase, 780 A.2d at 1131–32. The
parties, however, dispute the extent to which these doctrines apply here and the extent to which
the Court may also consider extrinsic evidence at this stage. See Dkt. 45 at 22–33; Dkt. 51 at
10–13. Because the Court concludes that the contractual language is unambiguous, it need not
resolve these issues.
Finally, once the meaning of the contract is settled, the burden falls on the insurer to
prove facts sufficient to demonstrate that the asserted exclusion applies. Nat’l Grange Mut. Ins.
Co. v. Elegant Slumming, Inc., 59 A.3d 928, 932 n.18 (Del. 2013); accord Cameron, 733 A.2d at
969.
3. Plaintiffs’ Asserted Ambiguities
a. The Meaning of “Unoccupied”
The parties first dispute whether, at the time of the incident, the residence was
“unoccupied” within the meaning of the ML-508D exclusion. See Dkt. 36-1 at 20–23; Dkt. 40 at
19–23. The relevant facts are not in dispute: no person was present at the property for the six
consecutive days preceding the discovery of the loss. According to Plaintiffs, however, their
temporary absence does not mean that the house was “unoccupied.” Rather, in their view, the
contractual term “unoccupied” should be given its dictionary meaning, which they say is
“vacant” or “empty.” 8 Dkt. 36-1 at 21. Finally, they argue that the house was not “vacant” or
“empty” because their belongings remained in the house and they had every intention of
returning. Id.
8
Plaintiffs appear to take their definition from Webster’s New World Dictionary (Prentice Hall
2d ed. 1986), portions of which were used at deposition. See Dkt. 40-20 (Ackley Dep. 62:9–
62:22).
17
The Court is unpersuaded by this interpretation of the exclusion. Read in context, the
word “unoccupied” is unambiguous. Indeed, the exclusion contains a parenthetical that
expressly defines the disputed term: the exclusion applies if the residence is “vacant, unoccupied
(meaning an absence of 72 hours), or under construction and unoccupied.” Dkt. 40-21 at 30
(emphasis added). The word “absence” in that phrase can only be reasonably read to refer to the
absence of people (as opposed to the absence of furniture, food, and other personal effects).
Plaintiffs’ contention that the house was not “unoccupied” because they did not leave it “empty”
without an intent “to return,” Dkt. 45 at 19, contradicts this plain meaning.
Plaintiffs’ interpretation is further flawed in that it would render the term “unoccupied”
surplusage. The ML-508D exclusion applies if the residence is “vacant” or “unoccupied.” Dkt.
40-21 at 30. But, if Plaintiffs are right that “vacant” means “unoccupied,” Dkt. 36-1 at 21, the
terms become altogether redundant. See O’Brien, 785 A.2d at 287 (“[A]n interpretation that
gives effect to each term of an agreement is preferable to any interpretation that would result in a
conclusion that some terms are uselessly repetitive.”). That redundancy is avoided if “vacant” is
construed to refer to a prolonged state of disuse of the kind Plaintiffs envision, and “unoccupied”
is construed to refer to a period during which people are absent from the property for seventy-
two hours or more.
And, although courts ought not contort contractual terms simply to avoid surplusage,
even without a special attempt to give each term independent meaning, the Court would still
conclude that this construction of the relevant terms best comports with accepted usage. See
Myers v. Merrimack Mut. Fire Ins. Co., 788 F.2d 468, 471 (7th Cir. 1986) (“‘[V]acant’ means
entirely empty (i.e., lack of animate or inanimate objects), while ‘unoccupied’ means the lack of
habitual presence of human beings (i.e., lack of animate objects). This construction has been
18
followed by . . . numerous courts in many . . . jurisdictions.”); see also Webster’s Third New
International Dictionary, Unabridged (online ed. 2016) (defining “unoccupied” as “not occupied
by inhabitants,” or “premises on which no one is living although the furniture and fixtures have
not been removed”). The Court, accordingly, concludes that “unoccupied” unambiguously refers
to the absence of people for more than seventy-two hours. 9
The two cases cited by Plaintiffs do not counsel otherwise. The first case, Chowdhury v.
LMI Insurance Co., 107 F.3d 6, 1997 WL 54453 (3d Cir. 1997) (unpublished), applied
Pennsylvania law and dealt with a contract lacking an express definition of “unoccupied.” Id. at
*3. The second case, Windsor-Mount Joy Mutual Insurance Co. v. Jones, No. CIV.A. 07C-07-
006THG, 2009 WL 3069695 (Del. Super. Ct. July 17, 2009), if anything, supports Windsor’s
interpretation. In that case, the court considered the meaning of the term “vacant”—rather than
the less permanent term “unoccupied”—but nonetheless concluded that “the lack of a day-to-day
resident at an insured property renders that property vacant . . . notwithstanding the household
contents [or] . . . sporadic entry.” Id. at *4–5. This is precisely the interpretation Plaintiffs seek
to avoid. In reaching this conclusion, moreover, the Delaware court distinguished Chowdhury,
id. at *5, and explained why a contrary interpretation would counteract the clear purpose of the
contract:
Any reading of the contract results in the conclusion that the purpose of the
provision in question is to protect the insurance company from the increased risk
that accompanies insuring a house that does not have an occupant. Plaintiff’s
assertion that a structure must be wholly empty for the provision to take effect is
therefore unpersuasive. . . . [A] fully furnished house would never be considered to
9
The Court has no occasion to decide whether periodic “checking in” on the residence might
render it “occupied,” given that McCann’s latest check-in occurred more than seventy-two hours
prior to the discovery of the loss. Nor does the Court address whether Windsor’s gloss on
“occupancy” in the accompanying notice would be admissible to resolve that issue. See Dkt.
40-21 at 30 (interpreting “occupancy” to mean “that someone stays there overnight”).
19
be vacant [or unoccupied], even if no person entered the house for years, simply
because the furniture in the house prevented the structure from being “completely
empty.”
Id. (quoting Vushaj v. Farm Bureau Gen. Ins. Co., 773 N.W.2d 758, 760 (Mich. Ct. App.
2009)).
Finally, Plaintiffs’ appeal to the “reasonable expectations” doctrine, see Dkt. 36-1 at 23,
is also unavailing. As explained above, that doctrine applies “only after a determination that an
insurance contract is ambiguous.” Stoms v. Federated Serv. Ins. Co., 125 A.3d 1102, 1108 (Del.
2015); accord Chase, 780 A.2d at 1132. Plaintiffs’ argument thus has no purchase here, where
the contract includes a definition of “unoccupied” that is “clear and unambiguous.” Chase, 780
A.2d at 1132.
As a result, the Court must apply the plain language of the contract. That language, in
conjunction with the undisputed facts, establishes that the residence was “unoccupied” at least
between McCann’s departure on February 10, 2013, and Dahlgren’s arrival on February 16,
2013—a six-day period during which no person was present at the property.
b. The Lack of a Water Shutoff Valve
Plaintiffs next argue that the requirement that the insured “must . . . shut off the water
supply where it enters the residence” is also ambiguous. Dkt. 40-21 at 30; see Dkt. 36-1 at 23–
26; Dkt. 45 at 33–35. According to Plaintiffs, it is unclear whether this clause applies to
residences, like theirs, which lack “shut off valve[s]” at the point the water supply enters the
home. Dkt. 36-1 at 23. In support of this purported ambiguity, Plaintiffs point to the apparent
disagreement among Windsor’s agents regarding whether the requirement should apply under
20
these circumstances, 10 see Dkt. 36-1 at 23–26, and argue that these “reasonable disagreement[s]”
reveal “ambiguity,” which “must be resolved in favor of the insured,” id. at 26.
Plaintiffs’ argument fails, however, because it hinges on evidence irrelevant at this stage
of the analysis. When assessing whether contract language is ambiguous, Delaware courts “must
confine themselves to the language of the document” and do “not . . . look to extrinsic evidence
to find ambiguity.” O’Brien, 785 A.2d at 289. Similarly, D.C. courts may not “resort[]” to
“[e]xtrinsic evidence of the parties’ subjective intent,” unless the document is ambiguous on its
face. Interstate Fire & Cas. Co. v. Washington Hosp. Ctr. Corp., 758 F.3d 378, 383 (D.C. Cir.
2014) (quoting Sears v. Catholic Archdiocese, 5 A.3d 653, 661 n.15 (D.C. 2010)); accord
Abdelrhman v. Ackerman, 76 A.3d 883, 888 (D.C. 2013) (“[E]xtrinsic or parol evidence . . . is
inadmissible to vary or contradict the terms of a valid, and plain and unambiguous, written
contract.”). It follows that, in either jurisdiction, the opinions of Windsor’s adjusters, staff and
management are not probative of ambiguity.
Recognizing this principle, Plaintiffs argue that these opinions are admissible not as
“evidence of the parties’ intent,” but as “evidence . . . that reasonable persons can disagree about
the interpretation and application of the ML508D endorsement.” Dkt. 45 at 35. The Court,
however, remains unconvinced. Delaware law clearly proscribes such a use. In O’Brien v.
Progressive Northern Insurance Co., 785 A.2d 281 (2001), for example, the Supreme Court of
Delaware declined to consider even disagreements as to the meaning of the policy among other
courts—let alone disagreements among a defendant’s employees. Id. at 289. And O’Brien
10
It is not clear from the record whether Windsor’s agents expressed views about the meaning
of the contract, as opposed to views about the contract’s reasonableness, fairness, or advisability.
The Court, nonetheless, will credit Plaintiffs’ interpretation of the facts for purposes of the
summary judgment motions.
21
specifically rejected the contention that an insurer’s “internal documents”—which constitute
extrinsic evidence—could “support [a] claimed ambiguity.” Id. D.C. law, although perhaps less
emphatic, is nonetheless clear: ambiguity is to be judged by objective standards and does not
exist “merely because the parties disagree” on the proper interpretation. Beck v. Cont’l Cas. Co.
(In re May), 936 A.2d 747, 751 (D.C. 2007). In short, the existence of ambiguity is a question of
law for the Court, to be ascertained from the four corners of the contract. To the extent that
Windsor’s employees and contractors held views about the meaning of the policy’s language,
those views are immaterial in the absence of a genuine ambiguity in the exclusion. 11
The Court must therefore determine whether the phrase “shut off the water supply where
it enters the residence” is ambiguous as used in the exclusion. Because the policy nowhere
defines “shut off,” the Court begins with the dictionary. See, e.g., Interstate Fire & Cas., 758
F.3d at 383–84 (collecting D.C. cases); First Health Settlement Class v. Chartis Speciality Ins.
Co., 111 A.3d 993, 1005 (Del. 2015). According to Webster’s, the transitive verb “to shut off”
means “to cut off (as a flow or passage or something flowing or passing)” or “[to] stop.”
Webster’s Third New International Dictionary, Unabridged (online ed. 2016). This is the plain
meaning the Court must give the exclusion: coverage is conditioned on the nonoccurrence of an
11
Windsor would take the rule a step further and bar the Court from considering even the fact
that the residence lacks a water supply shutoff valve. See Dkts. 40 at 23–25; 51 at 16–17
(arguing that extrinsic evidence is inadmissible to reveal certain “latent ambiguities”). Although
there is plausible support for this idea under Delaware law, see O’Brien, 785 A.2d at 289;
Motors Liquidation Co. v. Allianz Ins. Co., No. N11C-12-022, 2013 WL 7095859, at *4 (Del.
Super. Ct. Dec. 31, 2013), the District of Columbia has expressly rejected it, see Sahrapour v.
Lesron, LLC, 119 A.3d 704, 708 n.2 (D.C. 2015) (citing Mitchell v. Meriam, 188 F.2d 42, 44
(D.C. Cir. 1951) (“How can we tell whether a [document] is clear and definite or ambiguous and
uncertain until we know the surrounding facts?”)). Because the contested language is
unambiguous even under D.C. law’s more permissive standard, the Court does not decide the
issue.
22
event within Plaintiffs’ control—namely, that no water will “flow” or “pass” into the residence,
or, put differently, that the flow of water must “stop.”
Plaintiffs articulate no alternative reasonable interpretation that would render the policy
ambiguous. See Chase, 780 A.2d at 1127–28. Indeed, beyond the conclusory assertion that “a
reasonable reading . . . [would] afford[] coverage to the insured,” Dkt. 36-1 at 26, Plaintiffs never
identify what their preferred reading is, see id. at 23–26. As best this Court can tell, Plaintiffs
would have the Court graft onto the exclusion a clause along the following lines: “This
exclusion applies only if the house has a shutoff valve.” But this limitation finds no support in
the policy’s plain language, which requires only that the water be “shut off,” without regard for
how the shutoff is accomplished. The Court has no power to invent such a limitation. See, e.g.,
O’Brien, 785 A.2d at 288; accord Chase, 780 A.2d at 1127–28.
Plaintiffs assert that they “are not arguing the lack of a water shut off value shows that
the ML-508D exclusion is ambiguous,” but “that the lack of a water shut off valve means they
did everything they needed to do under the ML-508D endorsement.” Dkt. 45 at 33. The Court
is, once again, unconvinced. As an initial matter, the Court cannot determine whether Plaintiffs
did everything “they needed to do” under ML-508D without construing the exclusion. And,
because the Court concludes that the exclusion applies whenever the residence is unoccupied for
seventy-two hours or more and the insured does not “shut off the water supply,” it is incorrect to
assert that Plaintiffs did everything required under ML-508D.
But, even if Plaintiffs’ argument is not merely circular, and they intend to argue that they
did everything they reasonably could have done, the Court is unpersuaded. First, it is
uncontested that Plaintiffs could have hired a plumber to install a shutoff valve for approximately
$815. Dkt. 40-10 at 4. Although it may have been impractical to do so on short notice, the
23
relevant limitation was in effect for more than six years prior to the incident, Dkt. 40 at 15, so
Plaintiffs had ample opportunity to do so. Second, it is incorrect to suggest that the exclusion
merely required Plaintiffs to close their (nonexistent) shutoff valve. Indeed, the policy makes no
mention of a “shutoff valve,” but, rather, requires that the homeowner “shut off the water
supply.” Dkt. 40-21 at 30. A shutoff valve is just one means of doing so. “Shutting off” might
equally have been achieved by, for example, requesting that the city turn off the house’s water
supply at the point it reaches the house. And, third, the exclusion does not even require that the
homeowner “shut off the water supply.” The insured can maintain coverage for damage caused
by a leaking or broken pipe, for example, by arranging for a house sitter if the homeowner plans
to be away for more than seventy-two hours. None of this is easy, but the unambiguous terms of
the exclusion gave Plaintiffs a choice: they either could take one of these steps or could bear the
risk that a potentially catastrophic water leak would occur when no one was present to minimize
the damage.
Plaintiffs’ briefs do include some gestures towards areas of contract law other than
ambiguity. For example, one heading in their opening brief claims that the shutoff requirement
has been “excused or waived.” Dkt. 36-1 at 23. That brief also makes a passing reference to
“impossib[ility],” id., and implicitly suggests that the shutoff requirement is “unreasonable,” id.
at 24 (quoting Dkt. 36-13 at 3 (Stapf’s draft report)). Plaintiffs echo such language sporadically
throughout their reply brief. See Dkt. 45 at 33–36. They offer no argument or legal authority,
however, to support any of these vague, conclusory references. As a result, Plaintiffs have not
properly raised these arguments. See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869
(D.C. Cir. 2001) (per curiam) (“A litigant does not properly raise an issue by addressing it in a
24
‘cursory fashion’ with only ‘bare-bones arguments.’” (quoting Wash. Legal Clinic for the
Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997))).
The Court, accordingly, concludes the policy’s shutoff requirement is unambiguous.
There is no need to weigh the extrinsic evidence of the party’s intent at the time of contracting
(e.g., the WB-27D notice), or to consider the rules that favor the insured in construing
ambiguities in insurance policies (e.g., contra preforentum).
c. The Scope of the Exclusion
Plaintiffs’ third assertion of ambiguity concerns the scope of the ML-508D exclusion.
Plaintiffs contrast form ML-508D with the three types of exclusions found in the policy’s Special
Form. Some of the Special Form exclusions contain clear, specific language regarding (1)
whether they exclude risks to both real and personal property, or to real property alone; (2)
whether they exclude “ensuing losses” in addition to the excluded risk; and (3) whether they
employ an “anti-concurrent” causation test. See supra notes 3–5 and accompanying text.
Although Plaintiffs’ brief is not entirely clear, it appears to argue that, because the ML-508D
exclusion lacks similarly explicit language, it is ambiguous with respect to each of these three
issues. See Dkt. 36-1 at 26–29; Dkt. 45 at 36–38. The Court considers each issue in turn.
As to the first issue, the Court concludes that the ML-508D exclusion unambiguously
excludes coverage of damage to both real and personal property. Form ML-508D states that, if
the homeowner leaves the insured residence unoccupied for more than seventy-two hours and
fails to shut off the water, as occurred here, Windsor “do[es] not pay for loss” if that loss is
“caused by . . . overflow from any plumbing . . system.” Dkt. 40-21 at 30. That statement is
unequivocal. If the specified conditions exist, Windsor will not pay for the loss. In Plaintiffs’
view, the fact that the exclusion does not specify whether it applies to losses to real property,
25
personal property, or both necessarily injects an ambiguity in the provision. They note, for
example, that the first category of Special Form exclusions expressly cabins itself to “Coverages
A and B” (i.e., coverages of real property but not personal property), see Dkt. 40-21 at 6, 12, and
that ML-508D lacks similar clarity. But, the absence of a limitation does not mean that the
exclusion is ambiguous; it means it is comprehensive. An exclusion that applies to “cars,” for
example, is not ambiguous because it does not specify whether it applies to “red cars,” “green
cars,” or both—even if other provisions in the policy may apply only to “red” or “green cars.”
The same is true here. ML-508D, thus, more closely resembles the second and third Special
Form exclusions, which are denominated broadly as “EXCLUSIONS THAT APPLY TO
PROPERTY COVERAGES,” Dkt. 40-21 at 15, without further defining their reach with
reference to additional subcategories of coverage. The Court, accordingly, concludes that the
fact that the exclusion applies to losses, without specifying whether it applies to losses to both
real and personal property, does not create an ambiguity.
As to the second issue, the Court concludes that form ML-508D also makes no exception
for “ensuing losses.” In this respect, ML-508D differs from the third type of Special Form
exclusion, which expressly includes such an exception:
[We] do not pay for loss if one or more of the following exclusions apply to the
loss. However, [we] do pay for an ensuing loss that is otherwise covered by the
policy.
Dkt. 40-21 at 16 (emphasis added). If similar language applied here, loss from the initial peril—
the burst pipe—might arguably be analyzed separately from the “ensuing loss[es]” caused by
mold. The policy might cover one but not the other. See generally 5 Jeffrey E. Thomas, New
Appleman on Insurance Law § 44.05 (Library ed. 2015) (“An ensuing loss is generally one
which follows from a loss caused by an excluded peril and which may be brought within
26
coverage depending on the wording of the policy’s ensuing loss clause.”). But the ML-580D
exclusion, like the first two Special Form exclusions, has no “ensuing loss” clause. It states only
that Windsor “do[es] not pay for loss caused by . . . overflow from any plumbing . . . system”—
and that is it. Dkt. 40-21 at 30. Again, the absence of a limitation in ML-508D does not create
an ambiguity regarding the reach of the provision; rather, it means that the provision is
unambiguously comprehensive.
As to the third issue, the Court concludes that the meaning of “cause” in ML-508D is not
ambiguous in any relevant respect. Plaintiffs appear to argue that the exclusion is ambiguous as
to how it treats instances of multiple causation—that is, situations in which both a covered and a
noncovered peril contribute to the loss. See generally 7 Steven Plitt et al., Couch on Insurance
§ 101:53 (3d ed. 2013). According to Plaintiffs, the Court should construe this ambiguity in
favor of Plaintiffs and apply the doctrine of “efficient proximate cause.” Dkt. 36-1 at 27; Dkt. 45
at 37. Under that doctrine, where multiple perils contribute to the loss, coverage is determined
by whichever peril is the “efficient proximate cause,” i.e., the “dominant” cause, or “the one that
necessarily sets the other causes in operation.” Chase, 780 A.2d at 1130; accord 7 Plitt et al.,
supra, § 101:55. If the efficient proximate cause is a covered peril, the loss is covered; if the
efficient proximate is a noncovered peril, the loss is not covered. Chase, 780 A.2d at 1130.
Here, Plaintiffs identify the causal chain leading up to the loss as “(1) a suddenly breaking pipe,
(2) water escaping into the home, and (3) the proliferation of mold,” Dkt. 45 at 37, although the
first two events are properly considered a single peril, rather than two, see Chadwick v. Fire Ins.
Exch., 21 Cal. Rptr. 2d 871, 875 (Cal. Ct. App. 1993). 12
12
Plaintiffs also omit from their causal chain Gale Force’s alleged negligence and Plaintiffs’
own decision to demolish the house. Because Plaintiffs do not raise those events as reasons why
the loss would not be excluded under ML-508D, the Court does not consider them.
27
But, even assuming that the “efficient proximate cause” doctrine applies, it is undisputed
that the “cause that set the other causes in operation” was the broken pipe. Indeed, Plaintiffs
themselves allege—without qualification—that “[t]he proximate cause of the loss was the hot
water supply pipe’s failure and separation,” and that the pipe’s failure “allowed water and steam
to enter the [h]ome causing loss and damage which resulted in a total loss of the home and its
contents.” Dkt. 35 at 3 (Am. Compl. ¶¶ 12–13). Plaintiffs confirm in their opposition,
moreover, that “it is undisputed that the damage claimed by the Plaintiffs was caused by the
separation of a plumbing fixture.” Dkt. 45 at 37. Thus, there is no genuine factual dispute that
the “efficient proximate cause” of Plaintiffs’ loss was the broken pipe and resulting overflow—a
peril excluded under ML-508D. See Dkt. 40-21 at 30.
Rather than dispute the underlying facts, Plaintiffs argue that ML-508D does not apply
because it “does not unambiguously exclude pipe separation, water loss resulting from the pipe
separation[,] or ensuing mold damage.” Dkt. 40 at 37. The Court is unpersuaded for two
reasons. First, ML-508D does unambiguously exclude the “pipe separation” and the resulting
“water loss.” The exclusion’s text is clear: Windsor “do[es] not pay for loss caused by . . .
discharge, leakage, or overflow from any plumbing . . . system.” Dkt. 40-21 at 30. Second,
under Plaintiffs’ theory, there is no requirement that ML-508D expressly exclude the
proliferation of mold. As explained above, the “efficient proximate cause” doctrine applies
“when a covered and a noncovered peril contribute to a loss.” Chase, 780 A.2d at 1129–30
(emphasis added). Even if mold is a covered peril, because it is undisputed that the broken pipe
is the “efficient proximate cause” of the loss, it is the broken pipe’s coverage status that controls.
And, under the plain language of ML-508D, the broken pipe is not covered. Dkt. 40-21 at 30. It
follows that Plaintiffs’ entire loss is not covered, either.
28
Finally, Plaintiffs assert, in an apparent non sequitor, that ML-508D should be read to
exclude only the damage to the pipe itself, as opposed to damage from the resulting flood or
mold. Dkt. 36-1 at 29; Dkt. 45 at 36. This suggestion is inconsistent with the exclusion’s plain
language and is in no way compelled by the “efficient proximate cause” doctrine.
* * *
In sum, the Court concludes that ML-508D is unambiguous. The undisputed facts,
moreover, show that the residence was “unoccupied” at the time the incident occurred. Plaintiffs
were required to “shut off the water supply” before they left their residence, but failed to do so.
And under these facts, ML-508D excludes coverage for loss of any of Plaintiffs’ real or personal
property at the residence. The Court, accordingly, will deny Plaintiffs’ motion for partial
summary judgment and will grant summary judgment in favor of Windsor.
B. Gale Force’s Motion to Dismiss the Amended Complaint
1. Personal Jurisdiction Over Gale Force
In addition to seeking to recover from Windsor for breach of the insurance contract,
Plaintiffs assert claims against Gale Force for breach of contract, negligent misrepresentation,
negligence, and violation of the Delaware Consumer Protection Act. Dkt. 35 at 6–12. Each of
these claims rests on the allegations that Gale Force promised to take steps to remediate the
water damage to Plaintiffs’ home but failed to do so. Id. Gale Force, in turn, has moved to
dismiss the amended complaint for lack of personal jurisdiction. Dkt. 42-1. For the reasons
explained below, the Court agrees that it lacks personal jurisdiction over Plaintiffs’ claims
against Gale Force.
“To establish personal jurisdiction over a non-resident, a court must engage in a two-part
inquiry.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000).
29
It must first consider “whether jurisdiction is applicable under the state’s long-arm statute,” and
it must “then determine whether a finding of jurisdiction satisfies the constitutional requirements
of due process.” Id. The courts and governing statutes typically “differentiate between” two
types of personal jurisdiction—“general or all-purpose jurisdiction, and specific or case-linked
jurisdiction.” Goodyear Dunlop Tires Ops. v. Brown, 564 U.S. 915, 919 (2011). Given the
demanding requirements for establishing general jurisdiction, however, Plaintiffs contend only
that the Court has specific jurisdiction over their claims against Gale Force. See Dkt. 49 at 6.
“Specific jurisdiction” exists in cases in which “the suit ‘aris[es] out of or relate[s] to the
defendant’s contacts with the forum.’” Goodyear Dunlop, 564 U.S. at 919 (quoting Helicopteros
Nacionalies de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). Under D.C. law, specific
jurisdiction exists with respect to “claim[s] for relief arising from” various activity engaged in by
the defendant in the District or causing injury in the District. D.C. Code § 13-423. As relevant
to Plaintiffs’ theories of jurisdiction, the D.C. long-arm statute requires that the claim arise from
the defendant’s (1) “transacting any business in the District of Columbia,” § 13-423(a)(1), or (2)
“causing tortious injury in the District of Columbia by an act or omission in the District of
Columbia,” § 13-423(a)(3).
a. “Transacting Business” in the District
In construing section 13-423(a)(1), the D.C. Court of Appeals has given the phrase
“transacting business” “‘an expansive interpretation’ that is ‘coextensive with the due process
clause.’” Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (quoting Mouzavires v.
Baxter, 434 A.2d 988, 992 (D.C. 1981)). The relevant question, then, is whether Gale Force has
“purposefully established minimum contacts” with the District of Columbia, Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 476 (1985), “such that [it] should reasonably [have] anticipate[d]
30
being haled into court” here, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). That is, Plaintiffs must be able to show that Gail Force “purposefully avail[ed] itself of
the privilege of conducting activities within [the District of Columbia], thus invoking the benefits
and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
Plaintiffs identify the following “contacts” between Gale Force and the District of
Columbia, which they contend are sufficient to establish “transacting business” jurisdiction: (1)
Gale Force knowingly entered into a contract with Plaintiffs, whom Gale Force knew at the time
to be D.C. residents; (2) Gale Force communicated by telephone and email with Plaintiffs about
that contract while Plaintiffs were in the District of Columbia; and (3) Gale Force “has some sort
of marketing presence or business relationship in D.C. through its 1-800-BoardUp franchise or
marketing model.” Dkt. 49 at 4–5, 8–9. None of these contacts is sufficient to confer specific
personal jurisdiction over Gale Force.
First, the contract between Gale Force and Plaintiffs does not reach the level of
“minimum contacts” with the District. It is well settled that merely entering into a contract with
an out-of-state party does not constitute the kind of “purposeful availment” that subjects a
defendant to the laws of the other party’s home state. Burger King, 471 U.S. at 478; Thompson
Hine, LLP v. Taieb, 734 F.3d 1187, 1190, 1191–92 (D.C. Cir. 2013); Helmer v. Doletskaya, 393
F.3d 201, 205 (D.C. Cir. 2004). Rather, the contract itself must have a “substantial connection”
to the forum, McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957), as determined by “prior
negotiations and contemplated future consequences, along with the terms of the contract and the
parties’ actual course of dealing,” Burger King, 471 U.S. at 479. “Where the contract was
‘neither made nor performed in the District, and no services were provided or to be provided
here,’ the contract does not justify the exercise of personal jurisdiction over the non-resident
31
defendant.” Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 7–8
(D.D.C. 2009) (quoting COMSAT Corp. v. Finshipyards S.A.M., 900 F. Supp. 515, 524 (D.D.C.
1995)); accord Geier v. Conway, Homer & Chin-Caplan, P.C., 983 F. Supp. 2d 22, 33 (D.D.C.
2013).
Here, the contract between Gale Force and Plaintiffs lacks any substantial connection to
the District of Columbia. Plaintiffs solicited Gale Force in Delaware for the one-time
remediation of water damage at Plaintiffs’ Delaware home. The contract was formed and
executed in Delaware. The contract was to be performed entirely in Delaware. Gale Force’s
agents never left Delaware in connection to the contract, and neither party contemplated that the
contracted-for services would occur anywhere but Delaware. Indeed, the sole connection
between the terms of the contract and the District of Columbia is that Plaintiffs’ “billing address”
happened to be in D.C. But this is nothing more than an acknowledgment that Plaintiffs were
D.C. residents—a fact insufficient to establish personal jurisdiction. See Thompson Hine, 734
F.3d at 1193. Because the law is clear that “a contract with a resident of a forum does not by
itself establish minimum contacts with that forum,” Helmer, 393 F.3d at 206 (construing Burger
King, 471 U.S. at 478), the contract does not establish minimum contacts.
Second, the fact that Gale Force exchanged telephone calls and emails with Dahlgren
while she was in the District does not constitute “transacting business” there. “[E]mail and
telephone communications sent into the District of Columbia are not sufficient to [confer
personal jurisdiction] in themselves, even if they are made pursuant to an underlying contract
between a resident [plaintiff] and a nonresident [d]efendant.” Associated Prods., Ltd v.
Vanderbilt Univ., 76 F. Supp. 3d 154, 165 (D.D.C. 2014). “After all, such communications are
incidental to nearly every business relationship; they are not indicative of any desire to do
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business in D.C. and do not suffice to show purposeful availment or minimum contacts.”
Exponential Biotherapies, 638 F. Supp. 2d at 9.
Gale Force apparently made just four telephone calls to Dahlgren in the District of
Columbia, Dkt. 48-1 at 4, received a handful of additional calls from her, id., and engaged in two
email exchanges with her, see Dkt. 48-11. All of these communications occurred for the purpose
of implementing a contract that the Court has already determined is substantially unrelated to the
District of Columbia. Gale Force contacted Plaintiffs in the District only because Plaintiffs
“happened to be located” there. Gibbons & Co. v. Roskamp Inst., No. 06-cv-720, 2006 WL
2506646, at *3 (D.D.C. Aug. 28, 2006). “Such ‘contact’ does not constitute a deliberate and
voluntary association with the District that rises to the level of [minimum contacts].” Id.
The telephone calls and emails in this case, moreover, are de minimis. Communications
far more substantial than Gale Force’s have been held insufficient to constitute “transacting
business” under section 13-423(a)(1). See, e.g., Thompson Hine, 734 F.3d at 1192 (exchange of
“at least ten emails” insufficient); Exponential Biotherapies, 638 F. Supp. 2d at 5, 9 (law firm’s
transmission into D.C. of legal invoices, work product, and demands for payment insufficient);
Jung v. Ass’n of Am. Med. Colleges, 300 F. Supp. 2d 119, 131 (D.D.C. 2004) (ten
communications per year insufficient); COMSAT Corp., 900 F. Supp. at 524 (eleven faxes and
phone calls insufficient); Textile Museum v. F. Eberstadt & Co., 440 F. Supp. 30, 31–32 (D.D.C.
1977) (seventy-four instances of mailed correspondence insufficient); Gibbons & Co., 2006 WL
2506646, at *3 (fifty to seventy-five phone calls and emails insufficient); see also FC Inv. Grp.
LC v. HFX Mkts., Ltd., 529 F.3d 1087, 1095 n.8 (D.C. Cir. 2008) (collecting cases).
Third, Gale Force’s connection to BoardUp cannot create specific personal jurisdiction in
this case. Gale Force’s owner, Randy McCreary, testified that BoardUp “is a marketing model”
33
to sell restoration services across different geographic areas. Dkt. 52-7 at 3 (Supp. McCreary
Decl. ¶¶ 3, 4). As he explained the relationship, Gale Force “purchased a territory” from
BoardUp, which allowed Gale Force to do business under the “BoardUp” name in that territory.
Id. (¶ 5). BoardUp, in turn, would refer calls to perform work in that territory to Gale Force. Id.
At the relevant time, Gale Force’s “territory” included parts of Delaware and Maryland, but not
the District of Columbia. Id. As a result, according to McCreary, potential projects in the
District of Columbia were directed to a different BoardUp franchisee, which had no relation to
Gale Force. Id.; see also Dkt. 48-4 at 15 (Robert Keefer Dep. 52) (identifying the BoardUp
entity in D.C. as a company called “Prompt Restoration”).
Plaintiffs dispute this description of the relevant facts. They note that the “1-800-
BoardUp” name appeared on the contract they signed with Gale Force, and they argue that Gale
Force maintains a business presence in the District of Columbia through BoardUp. Dkt. 49 at 7–
8. They also note, moreover, a different Gale Force employee testified that Gale Force and
BoardUp are “the same” and that Gale Force “is the parent company to everything.” Dkt. 48-4 at
15 (Robert Keefer Dep. 51, 53). Although it is possible to reconcile this evidence with
McCreary’s testimony that Gale Force was only entitled to use the BoardUp brand in the relevant
territory—which did not include the District of Columbia—the Court will assume for present
purposes of the relevant facts are in dispute.
Yet, even if BoardUp’s contacts with the District were attributable to Gale Force, and
even if those contacts amounted to “transacting business,” they still would not establish specific
personal jurisdiction over Gale Force. To justify the exercise of specific jurisdiction, the claim at
issue must “arise from” the asserted contacts with the jurisdiction. See D.C. Code § 13-423(b);
Novak-Canzeri v. Saud, 864 F. Supp. 203, 206 (D.D.C. 1994). Plaintiffs, however, were not
34
“referred” to Gale Force through BoardUp; they contacted Gale Force directly by telephoning
Gale Force’s Delaware office. Dkt. 53-1 at 2. The only telephone calls in the record are calls
between Plaintiffs and Gale Force’s office in Delaware, or between Plaintiffs and Gale Force’s
Delaware employees. See Dkt. 48-5. And neither of Plaintiffs’ depositions includes any
reference to BoardUp whatsoever. Dkt. 40-1 (Dahlgren Dep. i4, i6); Dkt. 40-15 at 9 (Katopothis
Dep. i1). Thus, even assuming that BoardUp had other contacts with the District of Columbia,
there is no evidence—or allegation—that BoardUp had anything to do with the transaction at
issue.
The Court accordingly concludes that Gale Force was not “transacting business” in the
District within the meaning of section 13-423(a)(1).
b. Tortious Act and Injury in the District
Plaintiffs also assert that the Court has specific personal jurisdiction over Gale Force
under D.C. code section 13-423(a)(3). Dkt. 49 at 5. That section authorizes the exercise of
personal jurisdiction over defendants who “caus[e] tortious injury in the District of Columbia by
an act or omission in the District of Columbia.” § 13-423(a)(3). Unlike the “transacting
business” test, section 13-423(a)(3) is “a precise and intentionally restricted [jurisdictional
provision] which stops short of the outer limits of due process.” Moncrief v. Lexington Herald-
Leader Co., 807 F.2d 217, 221 (D.C. Cir. 1986) (citation omitted). Under section 13-423(a)(3),
“both [the] act and [the] injury [must] occur in the District of Columbia.” Helmer, 393 F.3d at
208. The Court is unconvinced that Plaintiffs’ claims satisfy either prong of this test.
For one, the Court doubts the alleged “misrepresentation” should be deemed to have
occurred in the District. The overwhelming locus of relevant acts was in Delaware, and not in
the District of Columbia. That is where the flooded residence was located, where Gale Force
35
was supposed to perform its services, and where Dahlgren met with Gale Force and agreed to
engage the company. In contrast, no employee or agent of Gale Force entered the District of
Columbia for any purpose related to this case. And the only acts that Plaintiffs identify that ever
arguably occurred in the District of Columbia are telephone calls made from Delaware to the
District of Columbia, during which Gale Force employees allegedly “made false
representations . . . concerning their ability and intent to restore the premises.” Dkt. 49 at 2. The
only relevant precedent the Court has been able to locate is contrary to Plaintiffs’ theory. In that
case, Judge Flannery held that “two phone calls made by defendant [from outside the District of
Columbia] into the District,” do not “provide a jurisdictional basis under [D.C. Code section 13-
423(a)(3)], even assuming that fraudulent misrepresentations were made by defendant to plaintiff
during those conversations.” Sec. Bank, N.A. v. Tauber, 347 F. Supp. 511, 516–17 (D.D.C.
1972). At least on the facts of this case, it is farfetched to suggest that a handful of telephone
calls and emails were sufficient to shift the locus of the alleged tortious act from Delaware to the
District.
The Court need not, however, rest its decision on the locus of the allegedly tortious act
because it is clear that the alleged injury did not occur in the District of Columbia. Plaintiffs
contend that Gale Force failed to take “the necessary steps to remediate, stop, restore, repair and
abate the damage to” their Delaware home and its contents. Dkt. 35 at 8 (Am. Compl. ¶ 46).
That injury, of course, occurred in Delaware—not in the District of Columbia. And although
Gale Force’s actions may have affected Plaintiffs’ finances, the D.C. Circuit has rejected the
contention that “economic injury” occurs for purposes of D.C. Code section 13-423(a)(3) “at the
plaintiff’s domicile.” Helmer, 393 F.3d at 208. Nor did the “injury” occur in the District of
Columbia merely because a Gale Force employee allegedly made false representations to
36
Dahlgren over the telephone while she was in the District. See id. (finding it insufficient that
plaintiff “fraudulently concealed her personal background during her visit to the District of
Columbia”). What matters is where the injury occurred and that was in Delaware, where mold
infested Plaintiffs’ home due to Gale Force’s alleged failure to remediate the water damage. 13
The Court, accordingly, concludes that D.C. Code section 13-423(a)(3) does not provide a basis
for asserting personal jurisdiction over Gale Force in this matter.
2. Jurisdictional Discovery
The Court also rejects Plaintiffs’ request that they be permitted to take further
jurisdictional discovery. It is, of course, true that “if a party demonstrates that it can supplement
its jurisdictional allegations through discovery, then jurisdictional discovery is justified.” GTE
New Media Services, Inc., 199 F.3d at 1351. To justify a request for further jurisdictional
discovery, however, “the plaintiff ‘must have at least a good faith belief that such discovery will
enable it to show that the court has personal jurisdiction over the defendant,’” and that belief
must be more than “conjecture or speculation.” FC Inv. Grp. LC, 529 F.3d at 1093–94 (quoting
Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)).
Here, Plaintiffs have failed to offer such a justification.
As an initial matter, the Court notes that Plaintiffs have already had an opportunity to
engage in substantial discovery, including taking the depositions of at least three Gale Force
employees. See Dkts. 49-1, 49-2 & 49-3. Moreover, they also have personal knowledge
regarding many of the jurisdictional facts upon which they rely. Dahlgren, for example, was a
13
Plaintiffs do not argue that part of their injury included a fraudulently induced payment to
Gale Force for the services it failed to provide. The complaint does not include any such
allegation, and Plaintiffs’ opposition to Gale Force’s motion to dismiss merely asserts that
“payments if made by the Plaintiffs would come from D.C.” Dkt. 49 at 2 (emphasis added); see
also id. at 7 (“performance by the Plaintiffs would be by payment from D.C.” (emphasis added)).
37
party to the telephone and email communications with Gale Force, yet she has not offered a
declaration recounting the content of those communications.
Plaintiffs, moreover, have failed to identify any unknown jurisdictional facts that are
material to the Court’s decision. They seek, for example, to depose McCreary regarding the
relationship between Gale Force and BoardUp. Dkt. 49 at 9. But, as explained above, even if
BoardUp’s activity in the District of Columbia could be attributed to Gale Force, that would be
insufficient to establish specific jurisdiction. See supra pp. 33–35. Discovery into Gale Force’s
alleged “misrepresentations” to Dahlgren is likewise immaterial, given the Court’s conclusion
that D.C. Code section 13-423(a)(3) does not apply. See supra pp. 35–37. And further
discovery relating to the telephone and email conversations from Gale Force into the District is
unnecessary for purposes of Plaintiffs’ efforts to establish “transacting business” jurisdiction
under D.C. Code section 13-423(a)(1), both because these out-of-state telephone calls to the
District are alone insufficient to subject Gale Force to the jurisdiction of D.C. courts, see supra
pp. 32–33, and because Dahlgren was a party to all of those conversations and could readily have
provided the Court with any relevant details.
The Court will, therefore, deny Plaintiffs’ request for additional jurisdictional discovery.
3. Transfer of Venue
Having concluded that the Court lacks personal jurisdiction over Gale Force, the Court
must “dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought [i.e., the District of Delaware].” 28 U.S.C. § 1406(a). The
“congressional purpose underlying section 1406(a) favor[s] the transfer of cases when procedural
obstacles ‘impede an expeditious and orderly adjudication . . . on the merits.’” Sinclair v.
Kleindienst, 711 F.2d 291, 293–94 (D.C. Cir. 1983) (quoting Goldlawr, Inc. v. Heiman, 369 U.S.
38
463, 466–67 (1962)). Included among these “procedural obstacles” is “the lack of personal
jurisdiction.” Id. at 294. “Transfer,” moreover, “is particularly appropriate where, . . . without a
transfer the cause of action would be barred by the running of the applicable statute of
limitations.” Id.
In light of the policy favoring transfer, the Court will transfer the action to the U.S.
District Court for the District of Delaware. The events that form the basis for Plaintiffs’ claims
against Gale Force occurred in February and March 2013. Under Delaware law, claims for
breach of contract, negligence, negligent misrepresentation, and violations of consumer
protection statutes are typically governed by a three-year statute of limitations. See Del. Code tit.
10, § 8106. Accordingly, unless the action is transferred, there is a substantial possibility that
Plaintiffs’ claims will be barred. It also “appears that transfer would enable [Plaintiffs] to obtain
personal jurisdiction over” Gale Force, Sinclair, 711 F.2d at 294, given that Gale Force’s
President and owner represents that Gale Force is incorporated and maintains its principal place
of business in Delaware, Dkt. 42-5 at 2, and that the relevant events occurred in there. Transfer
of the action, accordingly, would “make an adjudication [of] the merits of [P]laintiff[s’] claims
possible.” Sinclair, 711 F.2d at 294.
CONCLUSION
Plaintiffs’ motion for partial summary judgment, Dkt. 36, will be denied, and Windsor’s
motion for summary judgment, Dkt. 46, will be granted. In addition, because the Court lacks
personal jurisdiction over Gale Force with respect to Plaintiffs’ claims against it, the Court will
transfer the action to the U.S. District Court in Delaware pursuant to 28 U.S.C. § 1406(a).
A separate order will issue.
39
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 26, 2016.
40