Opinion
Civil Action No. 04-2548, Section: I/2.
May 27, 2005
ORDER AND REASONS
Before the Court is a motion, filed on behalf of plaintiff, New York Marine and General Insurance Company ("NYMAGIC"), to dismiss the counterclaims filed on behalf of defendant, McDermott International, Inc. ("McDermott"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. McDermott opposes the motion. For the following reasons, the motion is DENIED.
Rec. Doc. No. 9.
Rec. Doc. No. 11.
BACKGROUND
On June 16, 2004, the Intermac 404("I404"), a cargo-laden barge owned by McDermott sank in deep water approximately 375 miles off the coast of Argentina. The barge and the cargo were a total loss. At the time the I404 sank, McDermott was insured pursuant to an ocean marine cargo insurance policy issued by Southern Marine and Aviation Underwriters, Inc., located in Houston, Texas. The insurance policy is in subscription form, with NYMAGIC subscribing to 37.5% of the policy and various underwriting syndicates at Lloyds London subscribing to 62.5% of the policy (the "Cargo Policy").After the I404 was lost at sea, McDermott commenced the claims adjustment process by submitting a claim to its hull insurers seeking to recover for the loss of the I404 itself and a claim to NYMAGIC seeking to recover for the loss of cargo onboard the I404. During that process, a dispute arose between NYMAGIC and McDermott with respect to whether the Cargo Policy provided coverage for McDermott's losses. Due to that dispute, NYMAGIC filed the instant declaratory judgment action seeking a declaration that it was not liable to McDermott for any of the losses arising from the sinking of the I404.
In its complaint for declaratory judgment, NYMAGIC asserts three grounds in support of voiding coverage pursuant to the Cargo Policy. First, NYMAGIC alleges that McDermott failed to comply with a policy provision which allegedly required a Baxter Marine Surveyor or Lloyd's agent to attend and supervise cargo loading operations and, therefore, no coverage is owed. Second, NYMAGIC alleges that McDermott cannot recover pursuant to the Cargo Policy because the I404 was unseaworthy. Third, NYMAGIC contends that all or part of the losses claimed by McDermott are covered under McDermott's hull and machinery insurance policy rather than the Cargo Policy.
See Rec. Doc. No. 1.
See Rec. Doc. No. 4, amended complaint.
On March 11, 2005, McDermott answered the complaint for declaratory judgment and filed a counterclaim asserting (1) a claim for coverage pursuant to the Cargo Policy; (2) a claim for damages pursuant to Texas Insurance Code § 21.21 for NYMAGIC's alleged bad faith in filing the declaratory judgment action with knowledge that the losses are covered pursuant to the Cargo Policy; and (3) a claim for intentional interference with McDermott's contract with its hull insurers.
Rec. Doc. No. 5.
On April 6, 2005, NYMAGIC filed the instant motion to dismiss seeking dismissal of McDermott's claims of bad faith conduct and intentional interference with contract. NYMAGIC argues that (1) pursuant to Louisiana law, it had a good faith basis for questioning coverage and, therefore, filing the declaratory judgment action cannot constitute bad faith; (2) it cannot be held liable for statutory damages pursuant to the Texas Insurance Code because, pursuant to a choice of law provision in the Texas Insurance Code, V.A.T.S. Insurance Code, art. 21.42, Texas law cannot apply to McDermott's bad faith counterclaim; and (3) McDermott's intentional interference with contract claim is not cognizable pursuant to Louisiana law.
NYMAGIC does not seek dismissal of McDermott's counterclaim for coverage pursuant to the Cargo Policy.
See Rec. Doc. No. 7.
McDermott responded to the motion to dismiss arguing (1) that it has adequately plead claims for damages due to NYMAGIC's alleged bad faith conduct and intentional interference with contract; (2) NYMAGIC's declaratory judgment action does not preclude its claim for bad faith; and (3) that Texas law rather than Louisiana law applies to its bad faith claim and its claim for intentional interference with contract pursuant to federal maritime choice of law principles.
See Rec. Doc. No. 11.
LAW AND ANALYSIS
I. Standard for a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the [claimant] can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing a claim, a court must accept all well-pleaded facts in the pleading as true and liberally construe all factual allegations in the light most favorable to the claimant. See Spivey, 197 F.3d at 774; Lowrey v. Tex. AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). "However, '[i]n order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations. . . .'" Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989)) (alteration in original). "'[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). Moreover, "'legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Blackburn, 42 F.3d at 931 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal quotation and citation omitted).
II. McDermott's Bad Faith Claim
The threshold issue present in this case pertains to the question of what law applies to McDermott's bad faith claim. It is well-settled that a marine insurance contract is a marine contract within federal admiralty jurisdiction. New Hampshire Ins. Co. v. Martech USA., Inc., 993 F.2d 1195, 1198 (5th Cir. 1993) (citation omitted); Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 886 n. 2 (5th Cir. 1991) (citations omitted). However, the regulation of marine insurance is, in most instances, properly left to the states. Martech, 993 F.2d at 1198 (citing Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed.2d 337 (1955); 5801 Assocs., Ltd. v. Continental Ins. Co., 983 F.2d 662 (5th Cir. 1993)). The Fifth Circuit has ruled that "'the interpretation of a contract of marine insurance is — in the absence of a specific and controlling federal rule — to be determined by reference to appropriate state law.'" Albany Ins., 927 F.2d at 886 (quoting Ingersoll-Rand Fin. Corp. v. Employers Ins. of Wausau, 771 F.2d 910, 912 (5th Cir. 1985)). Therefore, state law governs a disputed issue pertaining to a marine insurance contract unless a controlling federal maritime rule applies to the issue. See Albany Ins., 927 F.2d at 886; Austin v. Servac Shipping Line, 794 F.2d 941, 948 (5th Cir. 1986). "This presumption of state law is, by now, 'axiomatic.'" Albany Ins., 927 F.2d at 886 (quoting INA of Tex. v. Richard, 800 F.2d 1379, 1380 (5th Cir. 1986)).
Neither party contends that there is a federal maritime rule that controls McDermott's claim for alleged bad faith conduct in adjusting the insurance claim at issue. See P.T. Tugs, Inc. v. United States Fire Ins. Co., 796 F.2d 125, 127-28 (5th Cir. 1986) (applying Louisiana bad faith law to an insured's claim of bad faith denial of coverage pursuant to a maritime insurance policy); see also Pace v. Ins. Co. of N. Am., 838 F.2d 572, 579-80 (1st Cir. 1988) (holding that insured's bad faith claim against a marine insurer was not preempted by federal maritime law); Hull Co., Inc. v. R. Chandler, 889 S.W.2d 513, 517 (Tex.App. 14th Dist. 1994) (applying state bad faith law because there is no federal maritime law governing an insured's bad faith claim). Instead, the dispute in this case focuses on whether Texas or Louisiana law applies to McDermott's claim.
Although a federal court ordinarily applies the choice of law rules of the forum in which it is located, a federal court exercising admiralty jurisdiction over a claim must apply general federal maritime choice of law rules. See Albany Ins., 927 F.2d at 890 (citations omitted). Generally, a choice of law analysis, whether maritime or not, requires the application of the law of the state with the "most significant relationship" to the substantive issue in question. Id. at 891 (citation and internal quotations omitted). The most significant relationship approach "examines the relative interests of all of the states which share a sufficient relationship with the transaction and the parties." Id. (citation omitted) (emphasis in original). In order to determine which states' laws may permissibly be applied, this Court must first identify the state in which the policy was formed and the state in which the policy was issued and delivered. Id. Such an analysis identifies the states which have sufficient contact with the policy and the parties that such states' laws can be applied. Id. If the first step of the choice-of-law inquiry yields multiple eligible states, the second step is to identify the state with the greatest interest in the resolution of the particular issue Id. The second step in the choice of law analysis identifies the state law which should be applied. Id. Both parties contend that, in this case, factors which bear on this Court's determination of the state with the greatest interest include the corporate citizenship of the vessel owner and the insurer, the site of the vessel's home port, and the vessel's location at the time of the alleged loss. See Truehart v. Blandon, 884 F.2d 223, 226 (5th Cir. 1989).
Neither party contends that the state in which the alleged bad faith conduct occurred is a factor in the choice-of-law analysis.
McDermott's counterclaim alleges that the Cargo Policy was issue by Southern Marine and Aviation Underwriters, Inc., a company located in Houston, Texas. There are no allegations demonstrating the state in which the policy was executed or the state in which the policy was delivered. Although both parties make various factual assertions in their briefs bearing on where the policy was executed and delivered, this Court is confined to the pleadings on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Spivey, 197 F.3d at 774. Moreover, the parties' pleadings reveal a factual dispute with respect to the corporate citizenship of McDermott and there are no allegations in McDermott's counterclaim demonstrating the vessel's home port. McDermott's counterclaim alleges that the vessel was located off the coast of Argentina at the time of the loss alleged to be covered pursuant to the Cargo Policy, but such a fact does not favor either the application of Texas or Louisiana law. Because the choice of law issue cannot be resolved by reference to the allegations in McDermott's counterclaim, the Court cannot conclude, at this juncture, that Texas law will necessarily not apply. Therefore, McDermott's claim is not subject to dismissal for failure to state a claim pursuant to Texas law.
Additionally, because neither party has submitted any evidence in support of their contentions, it is not an option in this case to convert the present motion to dismiss to a motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b)(6).
NYMAGIC does not contend that McDermott has failed to state a claim of bad faith pursuant to Texas substantive law governing claims of bad faith denial of insurance coverage. Instead, NYMAGIC's argues that Texas law does not apply and that McDermott has failed to state a bad faith claim pursuant to Louisiana law.
NYMAGIC argues that the choice of law provision in the Texas Insurance Code, V.A.T.S. Insurance Code, art. 21.42, precludes the application of Texas law in this case. Article 21.42 provides:
Any contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and entered into under and by virtue of the laws of this State relating to insurance, and governed thereby, notwithstanding such policy or contract of insurance may provide that the contract was executed and the premiums and policy (in case it becomes a demand) should be payable without this State, or at the home office of the company or corporation issuing the same.
For article 21.42 to apply, a contract of insurance must satisfy three requirements: (1) the insurance proceeds must be payable to a citizen or inhabitant of Texas; (2) the policy issued pursuant to the contract must be issued by a company doing business in Texas; and (3) the policy must be issued in the course of the insurance company's Texas business. Hefner v. Republic Indem. Co. of Am., 773 F.Supp. 11, 13 (S.D. Tex. 1991); Scottsdale Ins. Co. v. Nat'l Emergency Servs., Inc., 2004 WL 1688540, at *5 (Tex.App. 1st Dist. July 29, 2004). NYMAGIC contends that Texas law does not apply pursuant to art. 21.42 because McDermott is not a citizen or inhabitant of Texas and, therefore, the first requirement for the application of Texas law is not met.
NYMAGIC's argument is unpersuasive. As noted above, the choice of law issue with respect to McDermott's claim of bad faith conduct with respect to coverage afforded pursuant to the Cargo Policy is not governed by the state choice of law principle found in article 21.42, but by federal maritime choice of law principles. Furthermore, while article 21.42 mandates the application of Texas law if the statutory requirements set forth in that provision exist, it does not, by its terms, preclude the application of Texas law if such requirements are not met. See Scottsdale Ins. Co., 2004 WL 1688540, at *5-6 (applying Texas law pursuant to the "most significant relationship" test after concluding that article 21.42 did not apply because the statutory requirements for the application of Texas law pursuant to that article were not met). Accordingly, article 21.42 does not preclude the application of Texas law in this case.
NYMAGIC also claims that McDermott cannot state a claim pursuant to the Texas Unfair Competition and Unfair Practices Act. The Court need not address this argument because no such claim has been plead in McDermott's counterclaim.
Finally, even assuming, as NYMAGIC contends, that Louisiana law governs McDermott's bad faith claim, NYMAGIC's argument that McDermott has failed to state a claim is not well taken. Pursuant to Louisiana law, an insurer owes to its insured a duty of good faith and fair dealing. La.Rev.Stat. § 22:1220(A); Delahoussaye v. Madere, 733 So.2d 679, 688 (La.App. 5th Cir. 1999); Holt v. Aetna Cas. Surety Co., 680 So.2d 117, 129 (La.App. 2d Cir. 1996). Pursuant to § 22:1220(A), an insurer has "an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured. . . ." Generally, an insurer's failure to pay the amount of a claim due to an insured once the insurer receives adequate notice of the loss subjects an insurer to claims for damages, penalties and attorney's fees if such failure is "arbitrary, capricious, or without probable cause." See La.Rev.Stat. § 22:658(B)(1); § 22:1220(B)(5), (C); Ibrahim v. Hawkins, 845 So.2d 471, 476-77 (La.App. 1st Cir. 2003); Maurice v. Prudential Ins. Co., 831 So.2d 381, 387-88 (La.App. 4th Cir. 2002).
In order to prevail on a claim of breach of the duty of good faith, "the insured must prove that the insurer knowingly committed actions which were completely unjustified, without reasonable or probable cause or excuse." Holt, 680 So.2d at 130. "Whether an insurer's refusal to pay a claim is arbitrary, capricious, or without probable cause, warranting imposition of statutory penalties and attorney's fees, depends on the facts known to the insurer at the time of its action." Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Cagle, 68 F.3d 905, 913-14 (5th Cir. 1995) (citation and internal quotations omitted). Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and it acts in good faith reliance on that defense. Block v. St. Paul Marine Ins. Co., 742 So.2d 746, 752 (La.App. 2d Cir. 1999) (citing La. Health Servs. Indem. Co., 385 So.2d 767 (La. 1979)). Because the statutes providing for damages, penalties and attorney's fees for an insurer's bad faith conduct are penal in nature, such damages and penalties should be employed "only in those instances where the facts negate probable cause for nonpayment." Holt, 680 So.2d at 130. When an insurer has legitimate doubts about coverage for a particular claim, the insurer has the right to litigate such a questionable claim without being subjected to damages and penalties. Calogero v. Safeway Ins. Co. of Louisiana, 753 So.2d 170, 173 (La. 2000). (citation omitted); Holt, 680 So.2d at 131. However, where there is no reasonable basis pursuant to the terms of the policy to deny coverage, an insurer may be found to have acted arbitrarily, capriciously, or without probable cause. See Calogero, 753 So.2d at 173; Holt, 680 So.2d at 131.
The determination of whether in insurer acted in bad faith is a factual finding which depends on the facts and circumstances of each case. Block v. St. Paul Marine Ins. Co., 742 So.2d 746, 752 (La.App. 2d Cir. 1999); see Calogero v. Safeway Ins. Co. of La., 753 So.2d 170, 173 (La. 2000).
NYMAGIC filed the instant declaratory judgment action alleging that McDermott was not entitled to coverage pursuant to the Cargo Policy because (1) McDermott failed to comply with a special condition in the Cargo Policy requiring certain supervision of cargo loading operations; (2) the 1404 was unseaworthy; and (3) some of the losses claimed were covered pursuant to McDermott's hull insurance policy. NYMAGIC contends that it cannot be found in bad faith because it filed the instant declaratory judgment action to litigate questionable claims based upon good faith defenses.
Regardless of the ultimate factual merits of NYMAGIC's argument, the argument is unavailing on a motion to dismiss. McDermott has plead in its counterclaim detailed factual allegations supporting its claim that NYMAGIC filed the instant action with knowledge that (1) the special cargo supervision condition in the Cargo Policy did not apply to the kind of cargo being transported aboard the 1404; (2) that the 1404 had been inspected and approved as a seaworthy vessel just prior to and during the voyage in which the loss occurred; and (3) that McDermott's hull underwriters confirmed coverage for the hull claim and had paid the hull claim in full.
See Rec. Doc. No. 5, at pp. 8-12.
Taking these allegations as true, this Court cannot conclude that it appears beyond doubt that McDermott could not prevail on its claim that NYMAGIC breached the duty of good faith by failing to pay McDermott pursuant to the Cargo Policy and, instead, choosing to litigate the claim by filing a declaratory judgment action. McDermott has adequately plead facts that, if true, would support its claim that at the time NYMAGIC filed the instant action, there was no reasonable basis to conclude that the special condition in the Cargo Policy voided coverage for the losses at issue in this case and no reasonable ground to conclude that the 1404 was unseaworthy. Moreover, NYMAGIC's third claim, i.e. that some of the losses claimed by McDermott for equipment and supplies aboard the 1404 were covered pursuant to the hull policy, even if true, does not support dismissal of McDermott's bad faith claim. Even if some of the losses claimed were disputed, NYMAGIC nonetheless has a duty to pay any undisputed amounts due McDermott for covered cargo. See Ibrahim, 845 So.2d at 476-77 (noting that an undisputed amount of an insured's claim "must be tendered unconditionally, not in settlement of the case, but to show good faith and the insurer's compliance with its contractual duties"). Accordingly, NYMAGIC is not entitled to dismissal of McDermott's bad faith claim.
III. Intentional Interference with Contract
NYMAGIC moves to dismiss McDermott's intentional interference with contract claim contending that, pursuant to Louisiana law, such a claim is restricted to a claim against corporate officers alleged to have interfered with their employer's contractual relations. See 9 to 5 Fashions v. Spurney, 538 So.2d 228, 231 (La. 1989). Relying on federal maritime choice of law principles, McDermott argues that Texas law applies to its intentional interference with contract claim and that it has adequately plead such a cause of action pursuant to Texas law.
Initially, the Court notes that both parties have argued the choice of law issue with respect to McDermott's intentional interference with contract claim by reference to federal maritime choice of law principles applicable to contractual actions. However, pursuant to both Texas law and Louisiana law, McDermott's interference with contract claim is a tort. See Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 470 n. 17 (Tex.App. Austin 2004) (Texas law); Spurney, 538 So.2d at 232 (Louisiana law).
Furthermore, the parties' arguments assume that maritime law applies to McDermott's intentional interference with contract claims. "[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995); Egorov, Puchinsky, Afanasiev Juring v. Terriberry, Carroll Yancey, 183 F.3d 453, 455 (5th Cir. 1999). A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. Grubart, 513 U.S. at 534, 115 S.Ct. at 1048. In order to determine whether the alleged tort occurred on navigable water, a district court is to look "to where the alleged wrong took effect rather than to the locus of the allegedly tortious conduct." Egorov, 183 F.3d at 456 (citations omitted); see Kuehne Nagel v. Geosource, Inc., 874 F.2d 283, 288-89 (5th Cir. 1989); Wiedemann Fransen A.P.L.C. v. Hollywood Marine, Inc., 811 F.2d 864, 866 (5th Cir. 1986). Fifth Circuit law instructs that when, as in this case, the alleged tortious conduct forming the basis of a tortious interference with a contract claim occurs on land, such conduct must "directly produce a major injury on navigable waters" in order to fall within a federal court's admiralty jurisdiction. Kuehne, 874 F.2d at 289. Moreover, "interference with a maritime contract does not vest the court with admiralty tort jurisdiction absent an impact on navigable waters." Id. at 289-90 (citing Wiedemann, 811 F.2d at 866). Applying the foregoing principles, the Fifth Circuit has repeatedly held that a tortious interference with contract claim does not fall within federal admiralty jurisdiction when the effect of the alleged tortious conduct is felt on land where the contracts were to be performed. Egorov, 183 F.3d at 456; Kuehne, 874 F.2d at 289; Wiedemann, 811 F.2d at 866.
McDermott has plead 28 U.S.C. § 1333 as the sole basis for jurisdiction over its counterclaims.
In the present case, McDermott has alleged that NYMAGIC interfered with McDermott's contract with its hull insurers by attempting to persuade the hull insurers to breach their contracts with McDermott. McDermott alleges that this has caused damages in the form of lost insurance proceeds, negative impact on business relationships, loss of good will, damage to reputation, and increased premiums. These allegations make clear that, as in Egorov, Kuehne, and Wiedmann, the effect of NYMAGIC's alleged conduct took place on land where the hull insurance claims were being adjusted pursuant to the hull insurance policy. Therefore, the alleged tort is not a maritime tort within this Court's admiralty jurisdiction.
See Rec. Doc. No. 5, at pp. 12-13.
Because McDermott's claim is a non-maritime state law tort claim, state law governs. See e.g., Wiedemann, 811 F.2d at 866; Smith v. Mitlof, 198 F. Supp.2d 492, 501 (S.D.N.Y. 2000) ("State law, however, governs plaintiffs' non-maritime claims.") (citation omitted); In re Horizon Cruises Litig., 101 F. Supp.2d 204, 207 (S.D.N.Y. 2000). Consequently, this Court applies the Louisiana choice of law rules to McDermott's tort claim. See Coghlan, III v. Wellcraft Marine Corp., 240 F.3d 449, 452 (5th Cir. 2001) (considering supplemental state law claims and noting that "[w]hen deciding matters of state law, a federal court must apply the choice-of-law rules of the state in which it sits") (citation omitted); see also N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43 (2d Cir. 1999) (noting that a federal court adjudicating a supplemental state law claim applies the choice of law rules of the forum state); Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1164 (9th Cir. 1996) (same); Mitlof, 198 F. Supp.2d at 501 (same); In re Combustion, Inc., 960 F.Supp. 1056, 1059 (W.D. La. 1997) (same). As stated by one district court:
Article 3542 of the Louisiana Civil Code, which sets out the general factors governing choice-of-law for delictual obligations, provides in relevant part:
an issue of delictual . . . obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence, or place of business of the parties, and the state in which the relationship, if any, between the parties was centered; and (2) the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts.
The policies enumerated in La.Civ.Code. art. 3515 are:
(1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.In re Bank of La./Kenwin Shops Inc., Contract Litig., 1999 WL 1042242, *1-2 (E.D.La. Nov. 16, 1999).
Neither party has briefed or argued the choice of law question by reference to Louisiana tort choice-of-law rules. Additionally, as noted above with respect to McDermott's bad faith claim, the allegations in the counterclaim do not form a sufficient basis upon which this Court may make a determination with respect to the myriad of factors relevant to a choice-of-law analysis. Although the Court notes that, based upon the arguments presented in the briefs, it appears doubtful that Texas law would apply to McDermott's tortious interference with contract claim, this Court cannot conclude that Louisiana law applies solely by virtue of the allegations in the counterclaim alone. Therefore, McDermott's tortious interference with contract claim cannot be dismissed at this stage of the litigation on the ground that Louisiana law precludes such a claim.
NYMAGIC has advanced no argument that McDermott has failed to adequately plead a tortious interference with contract claim pursuant to Texas law. Therefore, the Court does not address McDermott's contention that the claim survives a motion to dismiss if analyzed pursuant to Texas law.
For the above and foregoing reasons,
IT IS ORDERED that the motion, filed on behalf of plaintiff, New York Marine and General Insurance Company ("NYMAGIC"), to dismiss the counterclaims filed on behalf of defendant, McDermott International, Inc. ("McDermott"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, is DENIED.