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Cavlam Business Ltd. v. Certain Underwriters at Lloyd's

March 16, 2009

CAVLAM BUSINESS LTD. AND JEAN MAURICE BERGERON, PLAINTIFFS,
v.
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

This is an insurance dispute about a sunken yacht -- the "Amira" (or, the "Yacht"). The owners of the Yacht were plaintiffs Cavlam Business Ltd. and its sole shareholder, Jean Maurice Bergeron ("Cavlam" and "Bergeron," respectively). The plaintiffs took out an insurance policy on the Yacht that was underwritten by defendants Certain Underwriters at Lloyd's, London ("Underwriters"). On December 18, 2004, the Yacht sunk while moored along a wharf off Venezuela, and the defendants denied coverage. The plaintiffs bring this action for a declaratory judgment that the sinking of the Yacht was covered by the insurance policy and that the value of the Yacht was the insured value of $510,000. The plaintiffs also seek punitive damages on the basis of the defendants' alleged bad faith in denying coverage.

The defendants move to dismiss the action on grounds of forum non conveniens, a forum selection clause in the insurance policy favoring English courts, and international comity.

I.

The following facts and procedural history, taken from the Complaint and the affidavits and declarations submitted by the parties in connection with this motion, are undisputed unless otherwise indicated.*fn1

Plaintiff Cavlam is a non-operating British Virgin Islands corporation formed by plaintiff Bergeron, the sole shareholder and principal thereof, for the purpose of holding formal title to a 1972 Bertram 63-foot motor yacht called the "Amira." Mr. Bergeron purchased the Yacht in 1999 at a boat show in Florida. He is a citizen of France but resides in the Bahamas on a permanent basis. (Bergeron Decl. ¶¶ 1-5.) The defendants are six syndicates at Lloyd's of London that underwrite marine insurance policies on yachts, among other things. They are located in London.*fn2 (Absolom Decl. ¶¶ 1-2, 7.)

In 2003, Mr. Bergeron, acting through his Maryland-based insurance broker International Marine Insurance Services (IMIS) and on behalf of Cavlam, took out an insurance policy on the Yacht for the period March 3, 2003 to March 3, 2004. (Bergeron Decl. ¶ 8; Absolom Decl. ¶ 6.) The insurance policy was underwritten by the defendants, (Absolom Decl. ¶ 7), and was executed in London (Absolom Decl. Ex. G). The Yacht was insured for $510,000, (Absolom Decl. Ex. G), an amount based on an appraisal conducted by a Florida-based surveyor in 2000 at the request of the plaintiffs (Bergeron Decl. ¶ 7). The insurance policy was renewed for the period March 3, 2004 to March 3, 2005. (Golden Decl. ¶¶ 4-6; Absolom Decl. Ex. G.)

On December 18, 2004, the Amira sank at her moorings alongside a wharf in Venezuela. (Bergeron Decl. ¶ 11; Absolom Decl. ¶ 10.) Mr. Bergeron was in Paris at the time of the sinking and professes no knowledge as to how it occurred. (Bergeron Decl. ¶¶ 10, 12.) The plaintiffs filed a claim of insurance on December 23, 2004. Both the plaintiffs and the defendants hired surveyors to investigate the cause of the sinking. Based on the opinion of at least one of the defendants' surveyors that the yacht sank because the plaintiffs failed to maintain it in a seaworthy condition, the defendants denied the plaintiffs' insurance claim. (Bosworth Decl. ¶¶ 2-6.) The defendants also dispute that the value of the Amira, and the consequent amount of the insurance claim, is $510,000. (Bosworth Decl. ¶ 8.)

On May 5, 2006, the defendants in this action, the underwriters, brought suit against the plaintiffs in the High Court in London. The defendants sought a declaration that the insurance policy did not cover the sinking of the Yacht. On August 17, 2007, Mr. Bergeron filed an acknowledgment of service in the English proceedings. (Bosworth Decl. ¶ 10.) On March 5, 2008, the plaintiffs filed this action in the Southern District of New York seeking a declaratory judgment that the insurance policy covered the sinking, the value of the claim is $510,000, and the plaintiffs are entitled to punitive damages because the defendants acted in bad faith in denying the claim. The parties have represented that the English proceedings have been stayed pending this Court's decision with respect to this motion.

The defendants move to dismiss this action on three grounds. First, they argue that the action should be dismissed pursuant to the doctrine of forum non conveniens. Second, they argue that a forum selection clause in the renewal quotation precludes the parties from litigating this case in the Southern District of New York. Third, they argue that the Court should abstain from exercising its jurisdiction as a matter of international comity.

II.

"[T]he doctrine of forum non conveniens contemplates the dismissal of lawsuits brought by plaintiffs in their favored forum in favor of adjudication in a foreign court." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000). The Court of Appeals for the Second Circuit has established a three-step framework for resolving a motion to dismiss based on forum non conveniens that involves: (1) determining the degree of deference to be afforded to the plaintiff's choice of forum; (2) examining whether an adequate alternative forum exists; and (3) balancing the private and public factors enumerated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). See Iragorri v. United Tech. Corp., 274 F.3d 65, 73-74 (2d Cir. 2001) (en banc); see generally Base Metal Trading, S.A. v. Russian Aluminum, 253 F. Supp. 2d 681, 693-713 (S.D.N.Y. 2003) (applying framework). The Court applies each part of the framework in turn.

A.

As an initial matter, the Court must determine the degree of deference that should be afforded to the plaintiff's choice of forum. See Iragorri, 274 F.3d at 70-73; accord Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukr., 311 F.3d 488, 498 (2d Cir. 2002); Base Metal Trading, 253 F. Supp. 2d at 693. The Supreme Court in Gulf Oil generally instructed that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, 330 U.S. at 508. The Court of Appeals for the Second Circuit has interpreted Gulf Oil to mean that "a court reviewing a motion to dismiss for forum non conveniens should begin with ...


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