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Buckingham Properties, LLC v. Atlantic Casualty Insurance Co.

United States District Court, E.D. New York

September 6, 2017

BUCKINGHAM PROPERTIES, LLC, MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiffs,
v.
ATLANTIC CASUALTY INSURANCE COMPANY, Defendant.

          For the Plaintiff: MICHAEL J. CASE LeClairRyan, A Professional Corporation

          For the Defendant: DEBRA MILLER KREBS ROBERT WALKER LEWIS Keidel, Weldon & Cunningham, LLP

          MEMORANDUM AND ORDER

          FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE

         Buckingham 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.

         Defendant 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.

         I.

         On May 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.

         Buckingham 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.

         On 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.

         Buckingham 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.

         II.

         Defendant 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 airports.

         Pursuant 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 ...

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