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Polito v. The Hanover Insurance Group, Inc.

United States District Court, W.D. New York

July 26, 2018

WILLIAM P. POLITO, Plaintiff,
v.
THE HANOVER INSURANCE GROUP, INC. d/b/a The Hanover Insurance Group, 440 Lincoln Street Worcester MA 01653, Defendant.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         This action involves a contractual dispute over a homeowner's insurance policy. Defendant removed the action to this Court on the basis of diversity. Now before the Court is Plaintiff's motion to remand the action to state court. (Docket No. [#4]). The application is granted and the action is remanded to New York State Supreme Court, Monroe County.

         BACKGROUND

         Plaintiff is suing in connection with a homeowner's insurance policy bearing the “policy number” HNS A661560.[1] The policy documents bear the heading “The Hanover Insurance Group, ” and indicates that “COVERAGE IS PROVIDED IN THE THE [SIC] HANOVER INSURANCE COMPANY.” In connection with the policy, Plaintiff received a “Privacy Policy Disclosure” which includes the statement:

If you have questions about our customer privacy policy (including any applicable state-specific policies) or our online privacy statement, or if you would like to request information we have on file, please write to us at our Privacy Office, N435, The Hanover Insurance Group, Inc., 440 Lincoln Street, Worcester, MA 01653. Please provide your complete name, address and policy number(s). A copy of our Producer Compensation Disclosure is also available upon written request addressed to the attention of the Corporate Secretary, N435, The Hanover Insurance Group, 440 Lincoln Street, Worcester MA 01653.
***
This notice is being provided on behalf of the following Hanover Companies: The Hanover Insurance Group, Inc. -- Allmerica Financial Alliance Insurance Company - Allmerica Financial Benefit Insurance Company - Allmerica Plus Insurance Agency, Inc. -- Citizens Insurance Company of America - Citizens Insurance Company of Illinois --Citizens Insurance Company of the Midwest - Citizens Insurance Company of Ohio - Citizens Management, Inc. -- AIX Ins. Services of California, Inc. -- Campania Insurance Agency Co. Inc. --Campmed Casualty & Indemnity Co. Inc. -- Chaucer Syndicates Limited - Educators Insurance Agency, Inc. -- Hanover Specialty Insurance Brokers, Inc. -- The Hanover American Insurance Company - The Hanover Insurance Company --The Hanover New Jersey Insurance Company - The Hanover National Insurance Company - Hanover Lloyd's Insurance Company - Massachusetts Bay Insurance Company - Opus Investment Management, Inc. -- Professionals Direct Insurance Services, Inc. -- Professional Underwriters Agency, Inc. -- Verlan Fire Insurance Company - Nova Casualty Company - AIX Specialty Insurance Company.

(emphasis added).

         After Plaintiff's home suffered water damage purportedly due to a plumbing leak, Plaintiff received correspondence from both Hanover Insurance Group and Hanover Insurance Company. For example, Plaintiff received a letter, on stationery from “The Hanover Insurance Group, ” signed by “Jaime Mackay Outside Property Adjuster Hanover Insurance Company.”[2] Plaintiff also received correspondence from “Dionysi McGowan, AIC-M, AINS, AIS, WRT/ASD Field Property Claims Unit Manager, The Hanover Insurance Group 440 Lincoln Street PO Box 15147 Worcester MA 01615.”[3] Additionally, before commencing this action, Plaintiff sent a copy of his proposed pleading to “The Hanover Insurance Group, ” at 440 Lincoln Street, PO Box 15147 Worcester, MA 01615.

         On March 7, 2018, Plaintiff commenced this action in New York State Supreme Court, Monroe County. The Complaint indicates that Plaintiff is a resident of New York. Regarding Defendant's citizenship, the Complaint states:

Upon information and belief, Defendant, The Defendant Hanover Insurance Group Inc., d/b/a The Hanover Insurance Group (herein, “Defendant” or “Defendant Hanover” or “The Insurer”) is a Holding Corporation for several property insurance companies, the relevant one of which is the Hanover Insurance Company, and are New York Insurance Companies [sic] with principal places of business located in New York, and in Massachusetts at 440 Lincoln Street, Worcester MA, 01653.

         Verified Complaint at ¶ 2. The Complaint purports to assert the following causes of action: 1) Breach of Contract; 2) Declaratory Judgment; 3) Breach of Contract - Breach of Implied Covenant of Good Faith and Fair Dealing; and 4) Breach of Contract - Breach of New York State Statutory Standard of Covenant of Good Faith and Fair Dealing. The Complaint demands, inter alia, $25, 000 in compensatory damages on the First Cause of Action; $50, 000 in punitive damages on the Third Cause of Action; and $50, 000 in punitive damages on the Fourth Cause of Action. Attached to the Complaint are various exhibits (Exhibits A-D(2)), including a copy of the subject homeowner's policy.

         On March 16, 2018, Plaintiff attempted to have the Summons and Complaint served through the Office of the New York Secretary of State, pursuant to Section 306 of the Business Corporation Law. The form that Plaintiff used to request such service indicated that the “entity or person to be served” was “HANOVER SPECIALTY INSURANCE BROKERS, INC., ” whose agent was “CT CORPORATION SYSTEM 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011.”[4] It appears that the New York Secretary of State, Division of Corporations, gave notice of such service to CT Corporation System, which in turn notified its principal, Hanover Specialty Insurance Brokers, Inc., which in turn notified Hanover Insurance Company.

         On May 1, 2018, a “Petition for Removal” was filed by “Hanover Insurance Company.” In that regard, Hanover Insurance Company describes itself as “Defendant, Hanover Insurance Company, incorrectly sued herein as ‘The Hanover Insurance Group, Inc., d/b/a The Hanover Insurance Group.'” The purported basis for removing the action is diversity of citizenship. In particular, the Petition for Removal indicates that Plaintiff is a citizen of New York, while Hanover Insurance Company is a New Hampshire corporation with its principal place of business in Massachusetts.

         The removal took place 46 days after the Summons and Complaint were served on the New York Secretary of State. Nevertheless, Hanover Insurance Company contends that removal is timely, because it occurred within 30 days of the date Hanover Insurance Company actually received notice of the lawsuit. Hanover Insurance Company further suggests that the delay in removing the action “perhaps” may be attributable to Plaintiff having purportedly mis-identified Hanover Insurance Company as “The Hanover Insurance Group, Inc. d/b/a The Hanover Insurance Group, ” rather than “Hanover Insurance Company”:

Plaintiff's summons and complaint were served on the New York Secretary of State, as the statutory agent of Hanover Specialty Insurance Brokers, Inc., on March 16, 2018[.] . . . Perhaps due to the plaintiff's misidentification of the proper insurance defendant, Hanover Insurance Company did not receive the summons and complaint, however, until April 6, 2018. A copy of the April 6, 2018 email Hanover received from its process agent, CT Corporation, is attached[.] As such, removal of this action is timely under 28 U.S.C. ยง 1446(b)(1), as made within 30 days of the ...

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