Opinion
MMXCV176018280
12-12-2017
STRATFORD 31 CONDOMINIUM TRUST v. MIDDLESEX MUTUAL ASSURANCE COMPANY
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendant, Middlesex Mutual Assurance Company (" Middlesex Mutual"), has moved to dismiss the complaint of the plaintiff, Stratford 31 Condominium Trust (" Stratford"), on the grounds of common-law forum conveniens. For the reasons set forth below, the motion is granted.
Factual and Procedural Background
On July 11, 2017, the plaintiff filed a complaint alleging breach of contract and seeking a declaratory judgment. The complaint alleges as follows. Stratford is an organization of unit owners located in Boston, Massachusetts. ¶ 1. Middlesex Mutual is authorized to issue policies of insurance in Massachusetts. ¶ 2. On August 1, 2013, Middlesex Mutual issued a property and casualty insurance policy to Stratford (" Policy"). ¶ 3. On February 1, 2014, a seven-alarm fire damaged Stratford’s six-story condominium building in the Back Bay of Boston, Massachusetts. ¶¶ 4, 6.
Stratford made a claim for property damage under the Policy for the damage resulting from the fire that occurred in Boston. ¶ 7. In conjunction with obtaining approval for reconstruction and to obtain a building permit, Stratford was required to arrange inspections by Massachusetts and municipal inspectors, boards, governmental agencies and utility companies. ¶¶ 11-12. On December 4, 2014, Stratford submitted the final contract documents and architectural plans to Boston Inspectional Services Department (" ISD") for full permit review, and on January 23, 2015, Boston ISD issued the plaintiff a full building permit. ¶¶ 14-15.
The complaint further alleges that Nauset Construction Corp. (" NCC"), the general contractor selected by Stratford, guaranteed maximum price estimate (" GMP") of $4, 553, 861 for repairs to the building, which Stratford claims it submitted to Middlesex Mutual on January 26, 2015. ¶¶ 16-17. A plumbing inspector visited the subject property and ordered all the plumbing to be replaced, which resulted in a $311, 650 increase in the GMP estimate. ¶ 19.
As of November 17, 2015, Middlesex Mutual agreed to a replacement cost to repair direct damage to the property in the amount of $3, 283, 323 based on the percentage of the GMP contract the defendant approved in May 2015, and to the costs to comply with building codes and ordinances of over $1.6 million, for a total of $4.8 million ¶¶ 20-22. Under the Policy, Middlesex Mutual was required to pay the Actual Cash Value of the loss (" ACV") and was permitted to withhold an amount known as a " Holdback, " reflecting the difference between the replacement cost and the ACV, until the direct damage was actually repaired or replaced. ¶ 24. As of January 31, 2016, Middlesex Mutual had paid the ACV of building damage and the " Holdback" of $2, 826, 326.87, leaving an unpaid " Holdback" of $456, 996.13 that represented the difference between the previously agreed replacement cost for direct damage of $3, 283, 323 and the amount paid to that date. ¶ 25. In August 2016, Middlesex Mutual paid the " holdback" balance of $456, 996.13. ¶ 30.
The Policy contains an endorsement, which states: " We will not pay for the increased cost of construction [due to code enforcement]: (a) Until the property is actually repaired or replaced ... and (b) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage, not to exceed two years. We may extend this period in writing during the two years." ¶ 31. Middlesex Mutual paid over $1.2 million for code-related repairs complete subsequent to February 1, 2016. ¶ 35. The code-related costs incurred after February 1, 2016 are $425, 270.21. ¶ 36.
In the spring of 2016, pursuant to the terms of the Policy, the parties submitted their dispute as to whether certain items of the direct damage to the property based on the GMP contract are within the scope of the Policy’s replacement cost endorsement to a Massachusetts arbitration proceeding, which is governed by Massachusetts law. ¶ 37. In April 2017, the Massachusetts arbitrators rendered an award. ¶ 42. Middlesex Mutual claims that it has fully satisfied the award while the plaintiff claims that there is a balance outstanding on the award. ¶ 44. The complaint does not clearly allege the basis for the plaintiff’s claim of an outstanding balance.
The defendant has presented the affidavit of Ben Spike, a Lead General Adjuster for the defendant, who has averred as follows: The plaintiff’s project manager, Jack Grant of JG Construction Management, Inc., is located in Medford, Massachusetts; the general contractor, Nauset Construction Corp., is located in Medford, Massachusetts; the architect, DHK Architects, is located in Boston, Massachusetts; the licensed public adjuster that worked on this claim, Swerling Milton Winnick, is located in Wellesley, Massachusetts; the plaintiff’s attorney, Paul Weinberg of Weinberg & Garber, P.C., is located in North Hampton, Massachusetts; the defendant’s building consultant, John Burke with The Burke Corp., is located in Andover, Massachusetts; the agencies who were involved in the approval and consultation process are all located in Massachusetts and include the Inspectional Services Department of the City of Boston, the Back Bay Architectural Commission and various Massachusetts utility companies; the parties submitted their dispute to an arbitration proceeding under Massachusetts law, known as a reference; and Massachusetts law requires the members of reference panels to reside in Massachusetts. Mr. Spike further avers that none of the individuals or entities who were directly involved in the reference, the repair and/or remediation process are located in Connecticut.
Discussion of the Law and Ruling
Both parties refer to the case of Durkin v. Intevac, Inc. et al., 258 Conn. 454, 782 A.2d 103 (2001), wherein the court quoted from its decision in Pickens v. International Playtex, Inc., 215 Conn. 490, 576 A.2d 518 (1990) as follows:
[T]he overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the [plaintiffs’] chosen forum. The question to be answered is whether [the plaintiffs’] chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved ... Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the [plaintiffs’] side of the scale, as a representation of the strong presumption in favor of the [plaintiffs’] chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion.
When, as in the present action, the plaintiffs are foreign to their chosen forum, the trial court must readjust the downward pressure of its thumb, but not remove it altogether from the plaintiffs’ side of the scale. Even though the plaintiffs’ preference has a diminished impact because the plaintiffs are themselves strangers to their chosen forum ... Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum ... especially in the somewhat unusual [situation in which] it is the forum resident who seeks dismissal ... [Therefore] [w]hile the weight to be given to the choice of a domestic forum by foreign plaintiffs is diminished, their entitlement to a preference does not disappear entirely. The defendants challenging the propriety of this choice continue to bear the burden to demonstrate why the presumption in favor of [the plaintiffs’] choice, weakened though it may be, should be disturbed." (Citations omitted; internal quotation marks omitted.) Picketts v. International Playtex, Inc., supra, 215 Conn. at 500-02, 576 A.2d 518 (1990).
" A motion to dismiss on the ground of the common-law doctrine of forum non conveniens does not contest the court’s jurisdiction ... within the meaning of [Practice Book § § ] 10-30 and 10-32 ... A court that decides to dismiss a case on the ground of forum non conveniens has jurisdiction but elects to dismiss the case and defer to another forum." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Durkin, supra, at 480.
The court in Durkin further stated:
With these principles in mind, we turn to the four-step process for examining forum non conveniens claims outlined in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-09, 67 S.Ct. 839, and clearly set forth in Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C. Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981), which we have stated is a " useful frame of reference for the law of Connecticut." Picketts v. International Playtex, Inc., supra, 215 Conn. at 497, 576 A.2d 518; see Union Carbide Corp. v. Aetna Casualty & Surety Co., supra, 212 Conn. at 319, 562 A.2d 15. First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case. Pain v. United Technologies Corp., supra, at 784. Second, the court should consider all relevant private interest factors with a strong presumption in favor of- or, in the present case, a weakened presumption against disturbing- the plaintiffs’ initial choice of forum. Id. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Id. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, " the court must ... ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice." Id., at 784-85.Durkin, supra, at 466.
The relevant private interest factors ... [are]: " (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses; and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial; and (6) all other practical problems that make trial of a case easy expeditious and inexpensive." (Internal quotation marks omitted.) Durkin, supra, at 462. The relevant public interest factors are: " (1) administrative difficulties for the courts, i.e., court congestion and the court’s familiarity with the applicable law; (2) imposing the burden of jury duty on [the] people of a community with no relation to the litigation; (3) holding trial in the view of interested persons; and (4) having matters decided in their local forum." Id.
Under Durkin and Picketts the starting point for a forum non conveniens analysis is whether Massachusetts constitutes an adequate alternative forum for this litigation and has jurisdiction over the whole case. The plaintiff is a Massachusetts condominium association and Middlesex Mutual is an insurer licensed to issue policies in Massachusetts with an office in Salem, Massachusetts. This case concerns a dispute as to the construction of an insurance policy issued to the plaintiff, a Massachusetts condominium association, in Massachusetts that is governed by Massachusetts substantive law. A Massachusetts court would clearly have jurisdiction over this case.
With respect to the private interest factors, the evidence and witnesses are all located in Massachusetts. The subject property is located in Boston, Massachusetts. In order to obtain approvals for its reconstruction, the plaintiff had to arrange inspections by the state of Massachusetts and municipal boards, and government agencies and utilities all located in Massachusetts. The public insurance adjuster, architect, general contractor, plumbing inspector, project engineer and project manager are all located in Massachusetts. The testimony of these witnesses may be necessary for the resolution of issues of fact in this case.
The defendant will be prejudiced in that it will incur increased costs to obtain the testimony of the Massachusetts witnesses in Connecticut. Moreover, the defendant will be unable to subpoena Massachusetts witnesses to testify in Connecticut. The defendant will be able to depose Massachusetts witnesses in Massachusetts. However, this will also result in increased costs and being " forced to try ... cases on deposition ... creates] a condition not satisfactory to the court, jury or most litigants." (Internal quotation marks omitted.) Durkin, supra, at 476.
Based on the foregoing, the private interest factors favor Massachusetts as the appropriate forum. There does not appear to be anything that favors Connecticut as a forum.
The public interest factors also favor Massachusetts. The litigation impacts a Massachusetts condominium association and its members. The interests of Connecticut and its residents are not impacted by this litigation. Moreover, Massachusetts state and municipal government agencies as well as Massachusetts residents made all the decisions regarding the scope of the reconstruction on the Massachusetts property at issue here. Based on the foregoing, the public policy factors all weigh in favor of dismissal.
Relying on the Picketts case, the plaintiff argues that the defendant has not presented sufficient evidence to outweigh the plaintiff’s choice of venue. However, the plaintiff does acknowledge that where the plaintiff is not a resident of the jurisdiction in which it brings the action, the presumption in favor of its choice of jurisdiction is less strong. See Picketts, supra, at 500-02. Nowhere in its memorandum in opposition to dismissal does the plaintiff mention any reason for bringing this action in Connecticut. In Durkin, the plaintiffs argued that if they could not bring the action in Connecticut, they could not bring it at all because the alternate jurisdiction, Australia, did not allow contingency fees. Notwithstanding that prejudice to the plaintiffs, the court held that the lower court had erred when it failed to dismiss the action on forum non conveniens grounds. The court held that the prejudice to the defendants, whose defense relied substantially on witnesses and evidence in Australia, outweighed the presumption favoring the plaintiffs’ choice of forum and the prejudice to the plaintiffs.
Trying this case in Connecticut will increase the costs of defense, interfere with the defendant’s ability to obtain the testimony of witnesses at trial, and require a Connecticut judge to apply another jurisdiction’s substantive law. Holding a trial in Massachusetts will keep it in the view of interested persons and allow the matter to be decided in its local forum. Unlike the plaintiffs in Durkin, the plaintiff here will not be prejudiced at all by bringing this case in Massachusetts and can reinstate this action in Massachusetts without inconvenience or prejudice. The analysis of the relevant factors set forth in Durkin favors Massachusetts as the proper forum in this matter. The motion to dismiss is granted.