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Sanderson v. First Liberty Insurance Corp.

United States District Court, N.D. New York

April 19, 2017

EDMUND G. SANDERSON, Plaintiff,
v.
FIRST LIBERTY INSURANCE CORPORATION, Defendant.

          EDMUND G. SANDERSON Plaintiff, Pro

          GOLDBERG, SEGALLA LAW FIRM JONATHAN SCHAPP, ESQ. SHARON ANGELINO, ESQ. Attorneys for Defendant

          MEMORANDUM-DECISION and ORDER

          DAVID N. HURD United States District Judge

         I. INTRODUCTION

         This is an insurance coverage dispute between pro se plaintiff Edmund G. Sanderson ("Sanderson" or "plaintiff") and defendant First Liberty Insurance Corporation ("First Liberty" or "defendant"), his homeowner's insurance carrier. Plaintiff purchased homeowner's insurance policy number H36-228-085080-70 from defendant to cover his home in Plattsburgh, New York. The policy's effective period ran between January 25, 2013 and January 25, 2014.

         As relevant here, the policy provided that "[n]o action can be brought against [the insurer] unless . . . the action is started within two years after the inception of the loss." The policy further explained that, for purposes of this limitation, "inception of the loss" means "the date on which the direct physical loss or damage occurred." See Townsend Decl. Ex. B, ECF No. 5-5.

         On January 7, 2014, Sanderson "discovered" some water and mold property damage at his home.[1] Plaintiff initially sought coverage for the loss from First Liberty in accordance with the policy and was assigned claim number 028787581. However, relations between the parties eventually broke down and plaintiff determined that a lawsuit would be the appropriate future course of action.[2]

         On January 6, 2016, Sanderson attempted to initiate suit in state court-he filed a Summons with Notice in Supreme Court, Clinton County, under index number 2016-00000023. Plaintiff's Summons with Notice named "Liberty Mutual Insurance" as the defendant in the action, but plaintiff did not serve this summons on defendant.

         On May 4, 2016, Sanderson filed an Amended Summons with Notice in Supreme Court under the same index number. This time, plaintiff's Amended Summons with Notice named "First Liberty Insurance Corporation" as the defendant in the action. And this time, plaintiff effected service on defendant through the New York State Department of Financial Services in accordance with New York Insurance Law § 1212.

         On June 6, 2016, First Liberty removed the action to the U.S. District Court for the Northern District of New York and thereafter moved to dismiss the action under Federal Rule of Civil Procedure ("Rule") 12(b)(4) and (6).[3] Plaintiff opposed and cross-moved under Rules 4 and 15 seeking leave to amend or correct his Amended Summons with Notice to relate back to the date of his original filing of the Summons with Notice. Both motions have been fully briefed and will be considered on the basis of the submissions without oral argument.

         II. DISCUSSION[4]

         First Liberty contends this whole action must be dismissed because Sanderson ran afoul of the two-year statute of limitations in his homeowner's policy, a limitations period which expired on January 7, 2016. According to defendant, plaintiff's original filing in state court on January 6 was defective because it incorrectly used defendant's trade name and, more importantly, was never served on defendant.

         Sanderson's opposition sets forth in significant detail his underlying rationale for first selecting "Liberty Mutual Insurance" as the name of the defendant in the state action. Plaintiff's declaration further explains that he undertook diligent efforts-including several calls and visits to the Clinton County Clerk's Office, various communications with First Liberty's representatives and counsel, and even attempts to contact New York State's Department of Financial Services-to navigate his way through the state court's filing and service requirements.

         After considering the matter, First Liberty's bid for outright dismissal under these circumstances is rejected. As defendant appears to acknowledge, the Federal Rules of Civil Procedure "apply to civil actions removed to the United States district courts and govern procedure after removal." Fed.R.Civ.P. 81(c); see also 14C Federal Practice & Procedure ยง 3738 (4th ed.) ("After the removal of an action from state ...


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