United States District Court, E.D. New York
BUCKINGHAM PROPERTIES, LLC, MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiffs,
ATLANTIC CASUALTY INSURANCE COMPANY, Defendant.
the Plaintiff: MICHAEL J. CASE LeClairRyan, A Professional
the Defendant: DEBRA MILLER KREBS ROBERT WALKER LEWIS Keidel,
Weldon & Cunningham, LLP
MEMORANDUM AND ORDER
FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE
Properties, LLC (“Buckingham”) and Massachusetts
Bay Insurance Company (“MBI”) (collectively,
“Plaintiffs”) brought this declaratory judgment
action against Atlantic Casualty Insurance Company
(“ACIC” or “Defendant”), alleging
that ACIC improperly declined to defend and indemnify
Buckingham against litigation in New York state court as
required by the terms of an ACIC policy under which
Buckingham is insured.
moves to either dismiss for improper venue pursuant to
Federal Rule of Civil Procedure 12(b)(3), or transfer to a
more convenient venue - the Western District of New York -
pursuant to 28 U.S.C. § 1404.
15, 2015, ACIC issued insurance policy no. L068018045
(“the ACIC policy”) to Christopher Haitz dba Real
Renovations (“Haitz”) with policy period May 16,
2015 to May 16, 2016. The policy was issued by ACIC agents H.
R. Keller and Co. Inc. and A/C Associates of NY, Inc. On July
22, 2015, Buckingham was added as an additional insured.
owns real property located at 1450 Lyell Avenue, Rochester,
NY (“the Premises”). On July 26, 2015, non-party
Kristopher Hanson (“Hanson”), who had been
retained by Haitz to do work on the Premises, allegedly fell
and was injured. Hanson filed a suit against Buckingham in
the Supreme Court for the State of New York, Genesee County,
Index No.: 64564/2015 (the “Underlying Action”)
arising from his injuries.
October 29, 2015, MBI tendered the defense and
indemnification in the Underlying Action and sought
additional coverage from ACIC under its policy. On or about
March 1, 2016, American Claims Service (“ACS”),
claims manager for ACIC, denied coverage on three basic
grounds: (1) the ACIC Policy excludes coverage for
obligations under worker's compensation law, disability
benefit law or unemployment compensation law; (2) the ACIC
Policy does not provide Medical Payments coverage for
“bodily injury”; and (3) the ACIC Policy does not
cover injuries to employees.
and MBI then brought this declaratory judgment action seeking
a declaration that ACIC must defend and indemnify Buckingham
in the Underlying Action and reimburse MBI for related
defense costs and attorneys' fees.
ACIC seeks to change venue to the Western District of New
York, where the accident, underlying litigation, and creation
of the ACIC Policy occurred. Plaintiffs Buckingham and MBI
respond that the Eastern District of New York is a more
convenient venue because parent companies to several of the
involved business entities have offices in the Eastern
District, and that the New York City metropolitan area is
more convenient for out-of-state parties due to its better
to 28 U.S.C. § 1404(a), “[f]or the convenience of
parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district . .
. where it might have been brought.” “‘The
determination whether to grant a change of venue requires a
balancing of conveniences, which is left to the sound
discretion of the district court.'” Forjone v.
Cal., 425 Fed.Appx. 73, 74 (2d Cir. 2011), (quoting
Filmline (Cross-Country) Prods., Inc. v. United Artists
Corp., 865 F.2d 513, 520 (2d Cir. 1989). The relevant
factors under 28 U.S.C. § 1404(a) are:
(1) the plaintiff's choice of forum, (2) the convenience
of witnesses, (3) the location of relevant documents and
relative ease of access to sources of proof, (4) the
convenience of parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of