Opinion
No. 12–P–183.
2012-11-29
COLGATE–PALMOLIVE COMPANY v. ONEBEACON AMERICA INSURANCE COMPANY & others.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
From early 2007 through April of 2011, claimants brought eleven lawsuits (the underlying actions) against the Colgate–Palmolive Company (Colgate) for personal injuries alleged to have resulted from use of Colgate products purportedly containing asbestos material. The lawsuits arose in Delaware, Pennsylvania, Rhode Island, Connecticut, Texas, and New York. Four of the underlying actions lodged in New York.
Colgate's liability insurers for the underlying claims are OneBeacon America Insurance Company (OneBeacon) and Liberty Mutual Insurance Company (Liberty Mutual). OneBeacon and Liberty Mutual undertook the defense of the asbestos claims under a reservation of rights and assigned a New York law firm (McGiveny & Kruger) to the cases during 2008 and onward. By 2010, a dispute had arisen between Colgate, on the one hand, and both insurance companies, on the other, over conduct of the defense of the underlying actions. Colgate then selected an alternative New York law firm (Quinn Emanuel) as lead defense counsel for the eleven underlying actions. Quinn Emanuel has proceeded to conduct the underlying cases and brought a number of them to a conclusion. Colgate has called upon the insurers to pay the fees and expenses of Quinn Emanuel. Colgate contends that, under the governing insurance policies, it was entitled to retain independent counsel and to charge the insurers with compensation of independent counsel. The insurers have taken the position that the policies do not permit Colgate to select independent counsel and to impose compensation for such counsel upon the insurers.
By their appellate briefs, the parties inform us that additional actions have arisen since the submission of the present dispute to the Massachusetts Superior Court motion judge in mid–2011. They report also the dispositions of some of the underlying cases from the group of eleven and from subsequent lawsuits. We shall confine our discussion to the state of the record confronting the Superior Court motion judge and its referenced original eleven underlying suits.
On April 29, 2011, Colgate brought this action in Superior Court for, among other claims, a declaratory judgment of its right to obtain independent counsel under the terms of the policies. It sued both insurers and the codefendant Resolute Management Inc. (Resolute), as OneBeacon's claims administrator. Four days later, OneBeacon filed suit in the New York Supreme Court seeking, inter alia, a declaratory judgment of its rights and duties under the same policies. Resolute is not a party to the New York action.
OneBeacon, Resolute, and Liberty Mutual promptly moved to dismiss the Massachusetts action upon the ground of forum non conveniens, as codified in G.L.c. 223A, § 5. Over Colgate's opposition, a judge of the Superior Court allowed the motion and a judgment of dismissal entered.
.General Laws c. 223A, § 5, inserted by St.1968, § 760, provides, “When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.”
Analysis. As the statutory language authorizing a trial judge to stay or dismiss an action upon grounds with terms “that may be just” would indicate, a motion judge's consideration of convenience of forum will typically be an exercise of discretion. The appellate court will review a dismissal only upon grounds of abuse of discretion. W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. 572, 584 (1990). Traditionally dismissal has been uncommon because a presumption arises in favor of a plaintiff's choice of forum. New Amsterdam Cas. Co. v. Estes, 353 Mass. 90, 95 (1967). However, a defendant may overcome the presumption by demonstration (1) that the plaintiff enjoys an adequate alternative forum for presentation of its claim; and (2) that the balance of private and public interest factors weighs strongly in favor of dismissal. Gianocostas v. Interface Group–Massachusetts, Inc., 450 Mass. 715, 723 (2008).
1. Alternatve forum availability. In this instance, we have no doubt that “the law of the alternative forum permits recovery for the plaintiff [ ].” Id. at 725. A “possibly less favorable” body of law for the plaintiff “does not render the alternative system inadequate.” Ibid., and cases cited. The New York Supreme Court provides a fully adequate trial forum for Colgate.
2. Interest factor consideration. (a) Private interest factors. These weigh the burdens of the parties. They include “ease of access to proof, the availability of compulsory process, and the cost of attendance of witnesses.” W.R. Grace & Co. v. Hartford Acc. & Indem. Co., supra at 578. In that instance, the motion judge concluded that the alternative forum hosted the bulk of nonparty witnesses and documents, and would enable a trial substantially less expensive and complicated. Id. at 584–585.
Similarly, in our case, the motion judge soundly concluded that the preponderance of sources of proof lay in New York State. She characterized as the “most important” factor the location of “crucial witnesses” in New York law firms. Colgate's complaint substantiates that view. Its account of the growing dispute between the company and its insurers indicates the potential appearance of a chain of New York attorneys as witnesses: lawyers from McGiveny & Kluger; from Quinn Emanuel; and from two New York law firms which Resolute proposed in place of Quinn Emanuel, i.e., Barry McTiernan & Moore, and Mound Cotton Wollan & Greengrass.
(Colgate claims conflicts with both firms.) All of the those potential witnesses and related documents lay within the subpoena power of the New York Supreme Court, and none within the analogous power of the Massachusetts Superior Court. Additionally, Colgate's personnel were located in its New York City headquarters.
Colgate's complaint presented two additional pools of potential New York witnesses: (a) “vendors, including experts” whom OneBeacon and Resolute allegedly instructed to report to the McGivney firm despite Colgate's desired retention of Quinn Emanuel; and (b) attorneys involved in the underlying New York asbestos actions.
Colgate points out that OneBeacon, Liberty Mutual, and Resolute all maintain offices in Massachusetts as the location of their witnesses. Those witnesses, of course, would be subject to the subpoena power of the Superior Court. However, since OneBeacon and Liberty Mutual are parties in the New York litigation, they have accepted the jurisdiction and authority of that court to compel their presence. In addition, Resolute reported its willingness to submit to joinder as a party in the New York litigation. In sum, the judge correctly concluded that the great majority of potential nonparty witnesses resided beyond the compulsory process of the Massachusetts court and within the authority of the New York court. See W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. at 584–585 (emphasizing the superior convenience of the alternative jurisdiction containing witnesses and documents more easily “found and made subject to process”).
(b) Public interest factors. These include (i) administrative efficiency, and (ii) preference for interpretation and application of the governing law by a court of the jurisdiction creating that law. Id. at 578. As a matter of administration, the judge observed that a Massachusetts trial might have to employ video depositions for the witnesses beyond its subpoena power, an alternative which she characterized as a “less than desirable substitute for live witnesses at trial.” By contrast, New York's compulsory process would procure the live witnesses and avoid the logistics of video depositions. See New Amsterdam Cas. Co. v. Estes, 353 Mass. at 98–99 (affirming the trial court's dismissal, in part, by reason of the expense and burden of procurement of witnesses and documentary material).
Finally, the judge opined that New York law governed the interpretation and application of the critical insurance policy provisions. See W.R. Grace & Co. v. Hartford Acc. & Indem. Co., supra at 585 (finding New York the “distinctly preferable forum” because its law governed the disputed insurance policy).
As a final public interest consideration, the judge observed that four of the open underlying asbestos claims were located in the New York court system and gave it a “special relationship to the underlying factual issues.”
Colgate disputes the applicability of New York law to the policies. At the motion hearing, Colgate did not indicate a position about the controlling State law. However, in prelitigation correspondence with Resolute, Colgate did strongly suggest the view that New York law would control. The motion judge was justified in her appraisal of the likely applicability of New York law.
The judge acknowledged Colgate's contention that Massachusetts courts would implement a regulatory interest in the compliance of the Massachusetts insurers with their proper duties. However, she found that consideration overridden by the evidentiary and administrative advantages of litigation in New York.
Conclusion. For these reasons, the judge's ruling and order lay well within the boundaries of sound discretion.
Judgment affirmed.