Etienne v. Wartsila N. Am., Inc.

667 F.Supp.3d 235

Lisa Floyd ETIENNE, as Guardian and Conservator of Cory Etienne, Ward, Plaintiff v. WARTSILA NORTH AMERICA, INC.; Eric Ramon James; Vanguard Risk Management, LLC;Enersense International Oyj; Crum & Forster Specialty Insurance Company;Wartsila Projects Oy; Wartsila Finland Oy; and XL Insurance Company SE, Defendants

CIVIL ACTION NO. 1:20-cv-229-TBM-RPM

United States District Court, S.D. Mississippi, Southern Division

Signed March 31, 2023

Kenneth Michael Altman, Jason J. Ruiz, Morrisbart, Ltd., Gulfport, MS, for Plaintiff.

James G. Wyly, III, Lauren Reeder McCrory, Phelps Dunbar, LLP, Gulfport, MS, Katie R. Van Camp, Edward Coleman Taylor, Daniel, Coker, Horton & Bell, Gulfport, MS, for Defendant Wartsila North America, Inc.

Walter W. Dukes, Mara M. L. Joffe, Dukes, Dukes, Keating & Faneca, PA, Gulfport, MS, for Defendant Eric Ramon James.

William Abram Orlansky, Steven D. Orlansky, Watkins & Eager, PLLC, Jackson, MS, for Defendant Enersense International Oyj.

Christina A. Culver, Pro Hac Vice, Thompson, Coe, Cousins & Irons, LLP, Houston, TX, Mark Hill, Pro Hac Vice, Marne Ann Jones, Pro Hac Vice, Thompson Coe Cousins & Irons, LLP, New Orleans, LA, Matthew M. Williams, Galloway, Johnson, Tompkins, Burr & Smith, Gulfport, MS, for Defendant Crum & Forster Specialty Insurance Company.

James G. Wyly, III, Phelps Dunbar, LLP, Gulfport, MS, for Defendants Wartsila Projects Oy, Wartsila Finland Oy.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

TAYLOR B. McNEEL, UNITED STATES DISTRICT JUDGE

Eric James collided with Cory Etienne when James was driving a truck rented by Wartsila North America, Inc. Etienne was injured in the accident and filed suit against James and James' alleged employers. Etienne is also suing XL Insurance Company SE, an Irish insurance company, because Etienne believes XL Insurance SE insures Wartsila North America as an excess insurance carrier. XL Insurance SE meanwhile asserts that it does not do business in Mississippi and does not have the necessary minimum contacts for this Court to exercise personal jurisdiction over it. This Court agrees and finds that XL Insurance SE's Renewed Motion [141] to Dismiss is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

James collided with Etienne at an intersection on Highway 49 in Gulfport, Mississippi. [163], pps. 3-5. James was driving a Chevrolet Silverado rented by Wartsila North America. Id. at 4. It is "sorely disputed" as to who employed James at the time of the wreck. [147], p. 2; [163], p. 6. Etienne filed suit in the Circuit Court of Harrison County, Mississippi. [1]. Wartsila North America timely removed the suit to this Court. Id.

Etienne then moved to amend the Complaint to add XL Insurance SE and additional defendants. [50]; [58]; [162]; [163]. XL Insurance SE is "a Societas Europaea" that is domiciled and holds its principal place of business in Dublin, Ireland.¹ [119], p. 5. Etienne asserts XL Insurance SE "is a foreign Company doing business in the United States[.]" [163], p. 3. Etienne alleges that "Wartsila [ ] was insured under an excess policy of liability insurance issued by XL [Insurance SE.]" Id. at 14. Etienne seeks a judicial declaration that "James qualifies as an insured driver under the XL [Insurance SE] policy and that the policy provides excess liability coverage for James, Wartsila, Enersense, and/or Vanguard." Id. Etienne also added Wartsila North America's "parent/sister corporations" Wartsila Projects Oy and Wartsila Finland Oy. [162], p. 2. Both parties have answered claiming that this Court lacks personal jurisdiction. [187], p. 1.

Etienne asserts within the briefing that "there is another policy that directly ties into the Master Policy and the issues before the Court." [147], p. 3. Etienne identified this "local policy" which was issued by XL Insurance America, Inc. to Wartsila Holding, Inc., Wartsila North America's parent company. [146-7], p. 2. But XL Insurance America is not a party to this suit.

Wartsila North America is incorporated in Maryland with its principal place of business in Texas. [163], p. 2. Wartsila North America is licensed to do business in Mississippi. [138]; [146-3], p. 1. "Wartsila North America, Inc., is a subsidiary of Wartsila Holding, Inc. Wartsila Holding, Inc., Wartsila Projects Oy, and Wartsila Finland Oy are subsidiaries of Wartsila Corporation a/k/a Wartsila Group ('Wartsila Oyj Abp')." [162-3], p. 2. Wartsila Finland Oy and Wartsila Projects Oy are Finnish companies. [163], p. 2; [187], p. 2.

Etienne claims that there is inadequate insurance coverage, so the XL Insurance SE policy is essential to recovery. [147], p. 1. Etienne conflates the Wartsila and XL Insurance defendants.² The policy issued by XL Insurance America names "Wartsila Holding, Inc." as the "[first] Named Insured" within the schedule. [146-7], p. 20. But the policy issued by XL Insurance SE names Wartsila Oyj Abp as the "Policy Holder." [118-3], p. 2. The XL Insurance SE policy states that the geographical area of the policy is "worldwide" and covers "[a]ll activities, businesses and products of an insured(s)." [118-3], p. 2. Since Etienne asserts that Wartsila North America is insured by both policies, Etienne seeks to recover from the XL Insurance SE policy's €50,000,000 policy limit instead of XL Insurance America's $5,000,000 policy limit. [146], pps. 3-4.

XL Insurance SE filed the present Motion alleging lack of personal jurisdiction. [141]. XL Insurance SE provided the Court with an affidavit [118-1] signed by Florence Chevet, General Counsel for XL Insurance SE, which has been incorporated through its Renewed Motion to Dismiss [141]. [142], p. 1; [118-1]. Chevet declared that XL Insurance SE issued a policy of excess liability insurance to "Wartsila Oyj Abp, a Finnish corporation[ ]. The Policy was issued from [XL Insurance SE's] offices in Stockholm, Sweden." [118-1], p. 3. Chevet stated that XL Insurance SE has "no offices or subsidiaries in North America . . . . does not own, control, or lease any other real property" nor does it "have any corporate status in the United States." [118-1], p. 2.

XL Insurance SE "does not advertise in North America and does not otherwise solicit any business in the United States, including Mississippi." Id. Chevet also said XL Insurance SE "does not have agents" or "contracts with independent insurance agents serving Mississippi or the United States[.]" Id. Chevet declared the "policy and practice" of XL Insurance SE "is not to issue or deliver policies of insurance through United States brokers and not to otherwise engage with any insurance agent or broker located or headquartered in the United States with respect to placement or negotiation of any of its insurance policies." Id. XL Insurance SE "does not receive premium payments in or through the United States." Id. The Board of Directors "are domiciled in the European Union or the United Kingdom. None of the Directors are citizens of Mississippi or the United States." Id. at 3. XL Insurance SE "is not licensed to underwrite policies of insurance by any State insurance regulator in the United States." Id. XL Insurance SE "does not have any bank accounts in Mississippi or in the United States . . . [nor] paid income, franchise, or any other tax or fee in the State of Mississippi." Id. So, XL Insurance SE asserts that this Court lacks both general and specific jurisdiction. [119], p. 14.

Etienne refutes XL Insurance SE's claims by making two arguments about why this Court can exercise personal jurisdiction over XL Insurance SE: (1) XL Insurance SE's act of insuring Wartsila North America, a company doing business in Mississippi, should be considered to be doing business in Mississippi; and (2) XL Insurance SE's subsidiaries do business in North America, so XL Insurance SE should be considered doing business in Mississippi. [128], p. 3; [147], p. 8.

II. ANALYSIS

XL Insurance SE filed its Renewed Motion to Dismiss [141] for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Etienne alleges that XL Insurance SE is "doing business" in Mississippi because its insured, Wartsila North America, does business in Mississippi. [147]. Meanwhile, XL Insurance SE contends that the Mississippi long-arm statute does not permit the exercise of personal jurisdiction because XL Insurance SE is not doing business in Mississippi. [142], p. 5. Further, XL Insurance SE argues that even if the Court found jurisdiction proper under the Mississippi long-arm statute, there would be no specific jurisdiction because XL Insurance SE did not purposely direct any of its activities at Mississippi and the Court lacks the minimum contacts to assert specific personal jurisdiction. [119], p. 6; [142], p. 13. Accordingly, this Court must determine whether Etienne presented sufficient evidence to support that jurisdiction is proper in Mississippi. Diece-Lisa Indus. v. Disney Enters., 943 F.3d 239, 249 (5th Cir. 2019).

A. Personal Jurisdiction Generally

"A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over the defendant; and (2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution." Mink v. AAAA Dev., LLC, 190 F.3d 333, 335 (5th Cir. 1999). Unlike in other states, the Mississippi long-arm statute is not coextensive with federal due process. Allred v. Moore & Peterson, 117 F.3d 278, 282 (5th Cir. 1997) (citing Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616-17 (5th Cir. 1989)). The Court must address each inquiry. See Stripling v. Jordan Prod. Co., 234 F.3d 863, 869 (5th Cir. 2000). But if the long-arm statute does not allow for the assertion of personal jurisdiction over the defendant, the Court need not consider the due process issue. Cycles, 889 F.2d at 616 (quoting Thompson v. Chrysler Motors...