T.P.K. CONST. CORP. v. S. AM. INS.

The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Plaintiff, a New York corporation with principal place of business in New Jersey, brings this diversity action to recover losses allegedly caused by the rejection of its bid for construction contracts with the City of New York because bid bonds issued by defendant South American Insurance Company (SAIC) "did not comply with the IFB [Information for Bidders prepared by the City of New York] and were a nullity as a matter of law." Am.Comp. at 4, ¶ 14 (May 9, 1990). This is a motion by plaintiff to require SAIC to deposit security in conformance with New York State Insurance Law § 1213(c)(1).

Section 1213(c)(1) states:

Plaintiff first made this motion by letter dated April 23, 1990. SAIC responded by letter dated May 1, 1990, with three defenses: (1) the statute only requires that a security be filed before the filing of any "pleading"; (2) the statute does not apply when the plaintiff has obtained personal jurisdiction over defendant by means other than service through the Superintendent of Insurance pursuant to New York Insurance Law § 1213(b)(2); and (3) a security cannot be required before the filing of an answer because a court cannot determine the nature and extent of plaintiff's injuries at such an early juncture.

At oral argument on May 7, 1990, the Court denied the motion with leave to renew, based on SAIC's first defense. At the time of the oral argument there was a pending motion by SAIC to dismiss the complaint; however, an answer had not yet been filed by SAIC. Section 1213(c)(1) only requires the deposit of a security before an unauthorized insurer "files any pleading in any proceeding against it." Both Federal Rule of Civil Procedure 7 and N Y CPLR § 3011, define "pleading" as a complaint or answer, but not as a motion to dismiss. Accordingly, the Court ruled on May 7, 1990 that Section 1213(c)(1) was not applicable because SAIC had filed a motion to dismiss but not a pleading.

By letter dated June 11, 1990, plaintiff renewed its motion with respect to Section 1213(c)(1). SAIC opposed the motion by letter dated June 19, 1990. At this time, SAIC's motion to dismiss has been withdrawn, plaintiff has filed an amended complaint and SAIC has filed an answer. SAIC concedes that it has filed a pleading and therefore relies only on the second defense asserted in its letter of May 1, 1990. The Court finds that defense inadequate in light of the plain language of Section 1213(c)(1) and related New York caselaw.

The language of Section 1213(c)(1) mandates that a security "shall" be deposited whenever an unauthorized foreign insurer files a pleading. SAIC admits in its pleadings that it is an unauthorized foreign insurer and on this motion has not disputed that it falls within that categorization. The statute only provides for two exceptions from the security requirement: (1) when the superintendent certifies that the unauthorized insurer maintains within New York State sufficient funds to satisfy any final judgment, and (2) when the unauthorized insurer procures a license to do an insurance business in New York State. Neither of those conditions have been satisfied. Thus, the plain language of Section 1213(c)(1) dictates that plaintiff's motion should be granted.

SAIC contends that despite the language of Section 1213(c)(1), the statute only requires a security deposit when personal jurisdiction has been obtained through substituted service of process on the Superintendent of Insurance as attorney for the unauthorized insurers. The procedure for obtaining personal jurisdiction over unauthorized foreign insurers through service on the Superintendent is provided for in Section 1213(b). In the instant case, plaintiff served SAIC pursuant to New York's long arm statute, which provides for service upon foreign companies doing business in New York. SAIC readily concedes in its letters on this motion that service of process was conducted properly under the CPLR and that this Court has jurisdiction. SAIC argues, however, that when process has been served pursuant to the CPLR, rather than through the Superintendent under Section 1213(b), then 1213(c)(1) does not apply.

There is no language in the statute to support such a distinction between the two forms of service. Under New York case-law the two forms of service have been deemed equivalent, see Comprehensive Foot Care Group v. Lincoln National Life, 135 Misc.2d 862, 517 N.Y.S.2d 652, 655-56 (N.Y.City Civ.Ct. 1987), and Section 1213(b)(5) provides, "Nothing contained in this section shall limit or abridge the right to serve any process, notice or demand upon any insurer in any other manner permitted by law."

The only support offered by SAIC is a New York Supreme Court decision under a similar insurance statute in effect before the enactment of Section 1213. In Arnold Chait, Ltd. v. La Metropolitana, Compania Nacional de Seguros, S.A., 26 Misc.2d 751, 207 N.Y.S.2d 22 (N.Y. Sup. Ct. 1960), the court determined that an unauthorized alien insurer did not have to deposit a security. Process had been served by means other than through the Superintendent in Arnold Chait and the court, in part, relied upon that circumstance in its decision not to require a security. The basis for the court's attributing significance to the type of service of process utilized was its addition of emphasis to the following sentence from Richards, Law of Insurance, Fifth Edition: "`Section 3 of the model act describes specifically the necessary procedural steps for an unauthorized insurer in order to defend a suit in which service has been made under this act.' (Emphasis supplied.)." 207 N YS.2d at 23 (quoting Richards, supra, at 265). The New York court stated that this sentence indicated that the security requirement only applied when process was served through the Superintendent. SAIC has not provided the Court with a similar commentary on the current insurance statute and the Court finds the Richards quote less than persuasive.

More importantly, the ultimate basis for the holding in Arnold Chait was that there was already a warrant of attachment and levy by the sheriff on a New York bank account of the unauthorized insurer. According to the Arnold Chait decision, the purpose of the security deposit requirement is to ensure that the defendant insurer, if it "defends and is unsuccessful, . . . will be able to satisfy the judgment." 207 N.Y.S.2d at 24. Thus, the Arnold Chait court concluded, "Under the circumstances of this case presently before us, the relief afforded the plaintiff by this law is unnecessary, jurisdiction has been acquired and the Warrant of Attachment and ...