UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

TIG Insurance Company

v. Case No. 22-cv-165-SE Opinion No.

National Indemnity Company

O R D E R

At issue in this case is the scope of in-state activity

necessary to establish specific jurisdiction over an out-of-

state declaratory-judgment defendant after a successor party to

the subject contract has relocated to the forum state. TIG

Insurance Company (“TIG”) argues that this court has personal

jurisdiction over an out-of-state insurance company, Defendant

National Indemnity Company (“NICO”), for the purpose of a

declaratory judgment action determining the rights and

obligations of the parties to a reinsurance contract originally

issued in 1973. The contract was formed out of state and had not

yet been breached when this suit was filed. Relying on Baskin-

Robbins Franchising LLC v. Alpenrose Dairy, Inc.,

(1st Cir. 2016), TIG argues that the court has jurisdiction

because NICO’s communications relating to the claim were

directed to TIG in New Hampshire beginning in 2018. But there is

no evidence that TIG’s asserted claim meaningfully implicates

any of NICO’s contacts with New Hampshire. Rather, it involves only the rights and obligations of the parties under a

previously existing agreement with respect to an

extrajurisdictional settlement. Consequently, the court does not

have jurisdiction and the case is dismissed.

Background

NICO is an insurance company based in Nebraska that issued

liability insurance to the State of Montana in effect from July

1, 1973, until July 1, 1975 (“Montana liability policy”). The

Montana liability policy covered Montana for, among other

things, claims asserted against the state that alleged bodily

injury arising out of the state’s errors or omissions.

To mitigate the potential for loss under the Montana

liability policy, NICO bought reinsurance coverage from several

insurance companies, including TIG’s predecessor, Skandia

Insurance Company Ltd. (“Skandia”). Skandia, a foreign insurance

company based in Stockholm, Sweden with a U.S. Branch in New

York, issued the reinsurance contract through a broker based in

Chicago, Illinois. TIG succeeded Skandia at some point after

Skandia and NICO entered into the reinsurance contract.

Beginning in 2000, workers at the Liberty Mine in Libby,

Montana (“Libby Mine”), brought claims against the State of

Montana to recover for asbestos-related injuries they allegedly

suffered from working in the mine. Montana tendered the claims

2 to NICO in 2002. NICO and Montana litigated and negotiated

NICO’s defense and indemnity obligations over the next 20 years

as claims continued to be made against Montana.

In 2009, Montana and certain Libby Mine claimants entered

into a settlement agreement in the amount of $43 million. In

2011, NICO paid Montana a portion of the settlement amount under

the Montana liability policy. NICO submitted a reinsurance bill

to TIG for a portion of the amount NICO had paid. TIG paid part

of the amount NICO billed in 2017.1

NICO brought a declaratory judgment action against Montana

in February 2012 in Montana state court, seeking a determination

of NICO’s rights, liabilities, and duties, if any, under the

Montana liability policy. Montana brought a counterclaim,

seeking coverage for the miners’ claims. Nat’l Indem. Co. v.

State of Montana, XDDV-20120-140. Litigation related to that

case lasted more than a decade. Montana and NICO eventually

resolved it by entering a settlement agreement on April 19,

2022. The Montana court approved the settlement on May 25, 2022.

While in litigation with Montana, NICO sent status reports

to TIG and its other reinsurers. Prior to 2018, TIG managed and

received communications from NICO regarding the reinsurance

contract, including NICO’s litigation status reports, through

1 The 2009 settlement and TIG’s 2017 payment are not part of this case.

3 TIG’s affiliate in Connecticut. Beginning in 2018, TIG began

managing and receiving communications from NICO regarding the

reinsurance contract through a different affiliate, RiverStone

Claims Management, LLC. RiverStone is located in New Hampshire.

After NICO and Montana entered into the April 2022

settlement agreement, NICO advised TIG that it would bill TIG

under the reinsurance contract for part of the settlement amount

after the Montana court approved the settlement. On May 11,

2022, before the Montana court approved the settlement, and

before NICO billed TIG, TIG filed this declaratory judgment

action. TIG alleges that any amount NICO owes under the

settlement agreement is not covered under the reinsurance

contract. Doc. no. 1, ¶ 29. TIG alleges only one cause of

action, seeking a declaratory judgment “regarding the parties’

rights and obligations under the [reinsurance contract] in

connection with or arising out of the ‘loss’ and ‘loss expense’

actually incurred by NICO under” the Montana liability policy.

Id., ¶ 33. On or around the same day TIG filed this action, two

other reinsurers brought similar suits against NICO in other

jurisdictions. See Global Reinsurance Corp. of Am. v. Nat’l

Indem. Co., 22-cv-3785(JSR) (S.D.N.Y. May 10, 2022); R&Q Ins.

Co. v. Nat’l Indem. Co., C.A. No. 2:22-cv-01807-NIQA (E.D. Pa.

May 10, 2022).

4 On June 6, 2022, after the Montana court approved the

settlement, NICO billed its reinsurers, including TIG, for the

portions of the settlement amount it believed due under their

respective reinsurance agreements. On the same day, NICO filed a

declaratory judgment action in the District of Nebraska against

its reinsurers, including TIG. Nat’l Indem. Co. v. Aioi Nissay

Dowa Ins., et al., 8:22-cv-199 (D. Neb. June 6, 2022).2 The suits

brought by the other reinsurers in the Southern District of New

York and the Eastern District of Pennsylvania have since been

dismissed without prejudice by agreement of the parties in favor

of litigation in the District of Nebraska. Therefore, the cases

currently proceeding in the District of Nebraska include all of

the reinsurers for NICO’s obligations under the Montana

liability policy. TIG’s suit here is the only case regarding

reinsurance obligations for the Montana liability policy that is

not proceeding in the District of Nebraska.

NICO now moves to dismiss, arguing that the court lacks

personal jurisdiction over NICO. Alternatively, NICO argues that

the court should transfer the case to Nebraska. TIG objects,

2 NICO also brought a separate declaratory judgment action against certain other reinsurers in Nebraska on that same day. See Nat’l Indem. Co. v. Liberty Mutual Insur. Co, et al., 22-cv- 200 (D. Neb. Apr. 6, 2022). The reason for, and the existence of, the second Nebraska declaratory judgment action are not material to the court’s order.

5 arguing that this court can exercise personal jurisdiction over

NICO and that transfer to Nebraska would be inappropriate.

I. Personal Jurisdiction

NICO contends that this court lacks personal jurisdiction

over it because NICO has not had sufficient contacts with New

Hampshire to support general personal jurisdiction and its

contacts with TIG in New Hampshire related to this case do not

support specific personal jurisdiction. In response, TIG

contends that specific personal jurisdiction exists based on the

parties’ communications and NICO’s other contacts with New

Hampshire.

A. Standard of Review

When, as here, the court does not hold an evidentiary

hearing on a Rule 12(b)(2) motion, the prima facie approach

applies. Rodriguez-Rivera v. Allscripts HealthCare Solutions,

Inc.,

, 157 (1st Cir. 2022). Under that approach,

the court acts “as a data collector” but not as a factfinder.

(quotation omitted).

As a data collector, the court takes the plaintiff’s

“properly documented evidentiary proffers as true and

construe[s] them in the light most favorable to [the

plaintiff’s] jurisdictional claim.” A Corp. v. All Am. Plumbing,

6 Inc.,

(1st Cir. 2016). The plaintiff cannot

establish jurisdiction based on allegations in the complaint but

instead “must put forward evidence of specific facts to

demonstrate that jurisdiction exists.”

The court “also

consider[s] facts offered by [the defendant], to the extent that

they are not disputed.”

The plaintiff bears the burden of

showing that specific personal jurisdiction exists. Rodriguez-

Rivera, 43 F.4th at 160.

B. Specific Personal Jurisdiction

Because subject matter jurisdiction is based on diversity

in this case, the court “must determine whether the defendant’s

contacts with the state satisfy both the state’s long-arm

statute as well as the Due Process Clause of the Fourteenth

Amendment.” Vapotherm, Inc. v. Santiago,

, 258 (1st

Cir. 2022). New Hampshire’s long-arm statute permits personal

jurisdiction over an out-of-state defendant to the extent

allowed by due process.

TIG relies on specific personal

jurisdiction, which “exists when there is a demonstrable nexus

between a plaintiff’s claims and a defendant’s forum-based

activities, such as when the litigation itself is founded

directly on those activities.” Massachusetts Sch. of L. at

Andover, Inc. v. Am. Bar Ass’n,

(1st Cir. 1998).

7 To show that specific jurisdiction exists over a defendant, a

plaintiff must prove all three of the following elements:

(1)[its] claim directly arises out of or relates to the defendant’s forum-state activities; (2) the defendant’s contacts with the forum state represent a purposeful availment of the privilege of conducting activities in that state, thus invoking the benefits and protections of that state's laws and rendering the defendant’s involuntary presence in that state’s courts foreseeable; and (3) the exercise of jurisdiction is ultimately reasonable.

Vapotherm, 38 F.4th at 258. “Contacts made after the filing of

the complaint are not considered in the analysis of personal

jurisdiction.” AmTrans Health, LLC v. Z-Medica Corp., No. CV 08-

0044ML,

, at *2 (D.R.I. Aug. 20, 2008) (citing

Harlow v. Children’s Hosp.,

, 64–65 (1st Cir.

2005) and Noonan v. Winston,

, 93 n.8 (1st Cir.

1998)); see also Matlin v. Spin Master Corp.,

(7th Cir. 2019).

1. Relatedness

In the context of a contract claim, determining whether a

claim is related to the defendant’s contacts with the forum

requires the court to examine the defendant’s contacts during

“prior negotiations and contemplated future consequences, along

with the terms of the contract and the parties’ actual course of

dealing.” Burger King Corp. v. Rudzewicz,

, 479

8 (1985). Where the “cause[] of action sound[s] in contract

. . . . the relatedness inquiry hinges on whether the

defendants’ contacts were instrumental in either the formation

or breach of the agreements in question.” Carreras v. PMG

Collins, LLC,

(1st Cir. 2011); see Vapotherm,

38 F.4th at 258-59.

Here, TIG points to no evidence to show that NICO’s

contacts with New Hampshire were instrumental to either the

formation or breach of the reinsurance contract for purposes of

the relatedness inquiry. It is undisputed that TIG’s

predecessor, a Sweden-based company with a New York branch,

issued the reinsurance contract through a Chicago broker to

NICO, a Nebraska company. Thus, regardless of the exact location

where the agreement was formed, it is plain that it was not

formed in New Hampshire.

In addition, neither TIG nor NICO had breached the

reinsurance contract at the time TIG initiated this action. At

that point, the Montana court had not yet approved NICO’s

settlement with Montana, NICO had not yet billed TIG for

coverage under the reinsurance contract, and TIG had not yet

denied coverage.3 Therefore, NICO’s contacts with New Hampshire

3 The circumstances that existed when the complaint was filed could raise a jurisdictional question as to whether a live case or controversy existed at that time. Although neither party raised subject matter jurisdiction as an issue, the court has a

9 cannot have been “instrumental” to any alleged breach of the

reinsurance contract. See, e.g., Harlow, 432 F.3d at 64–65.

TIG argues that, nevertheless, its claim arises out of or

relates to NICO’s activities in New Hampshire. TIG concedes that

the Montana liability policy, the litigation between NICO and

Montana, and all communications between TIG and NICO regarding

the reinsurance contract prior to 2018, are unrelated to New

Hampshire.4 It contends that the relatedness prong is satisfied,

responsibility to inquire sua sponte into its own jurisdiction. Amyndas Pharmas., S.A. v. Zealand Pharma A/S,

, 27 (1st Cir. 2022). The court is satisfied that the Article III jurisdictional requirements are met here because the legal issues pertaining to the parties’ obligations under the reinsurance contract were “certainly impending” when the complaint was filed, the relief requested would address those issues, and the dispute is ripe. SPARTA Ins. Co. v. Penn. Gen. Ins. Co., --- F. Supp. 3d ---,

, at *3-*7 (D. Mass. Aug. 9, 2022); Tocci Bldg. Corp. of N.J., Inc. v. Virginia Sur. Co.,

(D. Mass. 2010).

4 In support of its motion, TIG relies on the declaration of William Bouvier, the Vice President, Director, Assumed Reinsurance for RiverStone. Doc. 20-2. The declaration states that although TIG’s affiliate in Stamford, Connecticut “handled” matters related to the Reinsurance Claim until 2018, Bouvier, who was located in New Hampshire, was “responsible for supervising the handling of the Reinsurance Claim since 2014.” Id., ¶ 7. This supervision purportedly meant that either Bouvier or someone of more senior management in New Hampshire had to give “approval for financial transactions for large claims (such as the Reinsurance Claim).” Id. TIG does not appear to contend that NICO had any pre-2018 contact with New Hampshire regarding the Reinsurance Claim or the reinsurance contract to support the exercise of personal jurisdiction. To the extent that TIG intended to make that contention based on these statements in Bouvier’s declaration, that argument is not sufficiently developed to alter the court’s analysis.

10 however, because, beginning in 2018, “all material activities,

communications, and demands from NICO relating to the

Reinsurance Claim were directed to TIG in New Hampshire.” Doc.

no. 20-1 at 14. These activities and communications purportedly

include:

• NICO regularly communicated and corresponded with TIG regarding the Reinsurance Claim in New Hampshire;

• NICO regularly provided information relating to the Reinsurance Claim to TIG in New Hampshire;

• NICO provided regular updates to TIG in New Hampshire, including, significantly, how NICO intended to allocate and bill the Reinsurance Claim once the State/NICO settlement was approved by the court in Montana;

• TIG, in New Hampshire, reviewed and evaluated the information that had been provided by NICO and made the determination that NICO’s intended approach did not comply with the parties’ contract;

• NICO provided its formal notice and report of the finalized settlement to TIG in New Hampshire;

• NICO issued its demand for payment under the Reinsurance Contract to TIG in New Hampshire, in the amount of $56,808.283, and NICO demanded that TIG issue that payment from New Hampshire; and

• NICO now alleges that TIG has breached the Reinsurance Contract by virtue of its activities and determinations, including its refusal to make the demanded payment, all of which occurred in New Hampshire.

Id. at 14-15.

11 In support of its contention that the above activities

satisfy the relatedness element, TIG relies on Baskin-Robbins

Franchising LLC v. Alpenrose Dairy, Inc.,

(1st Cir.

2016), which it calls “instructive.” Doc. no. 21 at 15. In

Baskin-Robbins, Alpenrose, a dairy-products manufacturer located

in Oregon, entered into a franchise agreement in 1965 with

Baskin-Robbins, which then had its principal place of business

in California.

. The agreement, which the parties

negotiated in California, gave Alpenrose the right to operate

Baskin-Robbins franchises in Washington and Oregon for a six-

year term.

The agreement also gave Alpenrose the option to

renew its franchises for successive six-year terms so long as it

gave Baskin-Robbins written notice at least one year prior to

the expiration of the current term.

In 1998, Baskin-Robbins

moved its headquarters from California to Massachusetts.

.

Alpenrose sent Baskin-Robbins formal notice of its election

to renew the agreement every six years through 2007.

Alpenrose sent the 2001 and 2007 renewal notices to Baskin-

Robbins’ headquarters in Massachusetts.

In December 2013, shortly before its deadline to notify

Baskin-Robbins of its intent to renew the agreement for another

six-year term, Alpenrose gave Baskin-Robbins written notice that

it would not renew the agreement.

The parties then began

12 negotiating the terms of Alpenrose’s transition out of the

franchise arrangement.

In July 2014, after negotiations

stalled, Alpenrose wrote to Baskin-Robbins that it wished to

revoke its decision not to renew, and instead requested another

six-year extension.

Alpenrose’s letter also stated that if

Baskin-Robbins did not agree to renew, Alpenrose would be due

compensation under Washington law.

Baskin-Robbins responded that Alpenrose had waited too long

and was not entitled to renew the agreement or to receive any

compensation.

Baskin-Robbins then brought suit in the

District of Massachusetts seeking judicial declarations that the

agreement would expire on December 8, 2014, and that Alpenrose

was not entitled to compensation under the agreement.

Alpenrose moved to dismiss for lack of personal

jurisdiction or in the alternative to transfer the case to the

Western District of Washington.

The district court concluded

that it did not have personal jurisdiction and dismissed the

case.

On appeal, the First Circuit Court of Appeals

concluded that Baskin-Robbins had satisfied the elements of

personal jurisdiction and reversed, remanding the case for

further proceedings.

.

With regard to the relatedness element of the analysis, the

First Circuit stated: “In its complaint, Baskin–Robbins seeks

declarations both that Alpenrose’s second letter did not

13 effectively renew the Agreement (with the result that the

Agreement expired on December 8, 2014) and that Alpenrose is not

entitled to any compensation in connection with the expiration

of the Agreement.”

. In resolving that those claims

arose directly out of Alpenrose’s in-forum contacts, the First

Circuit concluded that “[a]lthough it is transparently clear

that the Agreement itself ultimately determines the effect of

Alpenrose’s two letters (that is, whether those letters

collectively resulted in renewal of the Agreement), it is the

letters that set the present controversy in motion.”

.

Because the letters were sent to Baskin-Robbins in

Massachusetts, the First Circuit held that there was “a

sufficient nexus between Alpenrose’s letters and Baskin–Robbins’

claims” to satisfy the relatedness prong of the jurisdictional

analysis.

TIG argues that, as with Alpenrose, NICO’s contacts with

TIG in New Hampshire are what “set the present controversy in

motion.” TIG contends that, as such, they are sufficient to

establish the relatedness prong of the jurisdictional analysis.

The court disagrees.

In Baskin-Robbins, the plaintiff sought a declaration that

the defendant’s letters did not effectively renew the parties’

agreement (and therefore that it owed no damages). The court

held that the fact that those letters — the legal effect of

14 which were the subject of and basis for the declaratory judgment

action — were sent to Massachusetts created a sufficient nexus

to satisfy the relatedness standard.

Unlike the plaintiff in Baskin-Robbins, TIG does not seek a

declaration as to the meaning or legal effect of any document

sent to New Hampshire. Instead, it seeks a declaration of its

rights and obligations under the reinsurance contract as it

pertains to the settlement agreement. Both the reinsurance

contract and the settlement agreement were negotiated and formed

outside of New Hampshire. Neither had been breached, here or

elsewhere, at the time that NICO filed this suit.

Nonetheless, TIG contends that NICO’s purported activity

and communications with TIG in New Hampshire regarding the

Reinsurance Claim are sufficient to satisfy the relatedness

prong. There are two problems with that argument. The first is

that TIG, which bears the burden of adducing evidence of

specific facts to show the existence of personal jurisdiction,

provides almost no specifics about NICO’s communications and

activity. Rather, it states simply that NICO “regularly”

communicated and gave information regarding the claim, without

offering any details as to the content or frequency of that

activity. Indeed, TIG points to and incudes with its objection

only a single pre-litigation communication from NICO to TIG in

New Hampshire: an April 21, 2022 email advising TIG that NICO

15 has finalized its settlement agreement with Montana and which

states that a “reinsurance billing will be submitted after court

approval is received.” Doc. no. 20-20 at 2. Thus, TIG has not

offered specific facts to show that NICO had regular contact

with New Hampshire regarding the Reinsurance Claim or the

reinsurance contract.

Second, even if TIG had provided those details, it offers

no support for its contention that those communications would

bring this case within Baskin-Robbins’ ambit. Baskin-Robbins

does not establish relatedness over every party who sends

communications into the forum with respect to an existing

contract. As mentioned, in that case, the defendant’s

connections to the forum state that the court deemed sufficient

to establish the relatedness prong were the defendant’s letters

sent to the forum state attempting to renew the parties’

agreement. Whether those letters successfully renewed the

agreement was the issue before the court. The contacts were not,

as TIG offers here to support jurisdiction, communications

generally about the parties’ dispute or the plaintiff’s own

activity in the forum state evaluating the parties’ contract.

TIG cites to no authority extending Baskin-Robbins’ holding to

the lengths it urges here.

At bottom, to support relatedness, TIG is left with NICO’s

notice of its not-yet-approved settlement with Montana and its

16 notice of how it intended to bill TIG and other reinsurers when

and if the Montana court approved the settlement. TIG believes

that the fact that NICO sent these communications to it in New

Hampshire is enough to satisfy the relatedness prong of the

personal jurisdiction analysis. Neither Baskin-Robbins, on which

TIG primarily relies, nor other First Circuit case law, supports

that contention. See Connell Ltd. P’ship v. Associated Indem.

Corp., No. 1:22-cv-10639,

(D. Mass. Jan. 6,

2023). As such, TIG has failed to carry its burden to show

relatedness.

2. Remaining Factors

TIG’s failure to demonstrate relatedness between its claim

in this case and NICO’s contacts with New Hampshire means that

this court cannot exercise personal jurisdiction over NICO in

this case. A Corp.,

. Therefore, the court does

not address whether TIG has carried its burden to show that NICO

purposefully availed itself of the privilege of conducting

activities within the forum state or whether the exercise of

personal jurisdiction would be reasonable.

II. Transfer

NICO also moves in the alternative to transfer the case to

the District of Nebraska, where its suit against TIG and other

17 reinsurers is proceeding, relying on

(a).

Because the court grants NICO’s motion to dismiss on personal

jurisdiction grounds, it does not address whether transfer would

be appropriate if it could exercise personal jurisdiction over

NICO.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 7) is granted. The clerk of court shall

enter judgment accordingly and close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge March 27, 2023

cc: Counsel of record.

18