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CALVERT INSURANCE COMPANY v. STATE INSURANCE FUND

United States District Court, Southern District of New York


June 12, 2003

CALVERT INSURANCE COMPANY, PLAINTIFF, AGAINST THE STATE INSURANCE FUND, DEFENDANT.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

ORDER

The New York State Insurance Fund (the "Fund") brought a third party action against an entity known as Poseidon as part of a state court litigation. Plaintiff, Poseidon's general liability carrier, assumed Poseidon's defense in the state court action, allegedly under an agreement with the Fund whereby the latter would pay a share of the cost of doing so. It here seeks a determination that the Fund has breached that undertaking as well as a declaration that the Fund is obliged to indemnify it, in whole or in part, in the event it pays any judgment or settlement in the state court action. Jurisdiction allegedly is based on diversity of citizenship.

The Fund is a state agency within the New York State Department of Labor. Methodist Hospital of Brooklyn v. State Insurance Fund, 64 N.Y.2d 365, 375, 486 N.Y.S.2d 905, 910 (1985); N.Y. WORKERS' COMP. L. § 76, subd. 1 (West 2003). The State is responsible for all its liabilities. Lipofsky v. Steingut, 86 F.3d 15, 17 (2d Cir.), cert. denied, 519 U.S. 971 (1996). In consequence, it is not a "citizen" for purposes of the diversity jurisdiction. E.g., Krisel v. Duran, 386 F.2d 179, 180 (2d Cir. 1967), cert. denied, 390 U.S. 1042 (1968). In view of this conclusion, it is unnecessary to consider whether the action is barred by the Eleventh Amendment.

The case is dismissed for lack of subject matter jurisdiction.

SO ORDERED.

20030612

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