Billings Clinic v. Am. Guarantee & Liab. Ins. Co., CV21-32-BLG-SPW-TJC

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Writing for the Court: SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE
• Parties: BILLINGS CLINIC, Plaintiff, v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Defendant.
• Decision Date: 08 February 2022
• Docket Number: CV21-32-BLG-SPW-TJC

BILLINGS CLINIC, Plaintiff,
v.
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Defendant.

No. CV21-32-BLG-SPW-TJC

United States District Court, D. Montana, Billings Division

February 8, 2022

ORDER ADOPTING MAGISTRATE'S FINDINGS AND RECOMMENDATIONS

SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

United States Magistrate Judge Cavan filed Findings and Recommendations on Plaintiff Billings Clinic's Motion for Remand on November 9, 2021. (Doc. 24). The Magistrate recommended that Billings Clinic's Motion be denied. (Doc. 24 at 2). Billings Clinic objected to Judge Cavan's Findings and Recommendations on November 22, 2021. (Doc. 25). Defendant American Guarantee and Liability Insurance Company ("AGLIC") responded to the objection on December 6, 2021. (Doc. 26). The matter is deemed ripe and ready for adjudication. For the following reasons, the Court adopts Judge Cavan's Findings and Recommendations in full and denies Billings Clinic's Motion.

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I. RELEVANT BACKGROUND

Neither party objected to Judge Cavan's factual findings. As such, those findings are repeated here for convenience.

This action concerns insurance coverage for lost business income resulting from the COVID-19 pandemic and the related government orders either suspending or limiting business operations. Billings Clinic is a non-profit health care system organized under Montana law, and serves Montana, Wyoming and the western Dakotas, with its principal place of business in Billings, Montana. AGLIC is an insurance company organized and existing under New York law, with its headquarters in Schaumburg, Illinois, and is licensed and authorized to do business in Montana.

AGLIC issued an all-risk "Zurick EDGE Healthcare Policy" to Billings Clinic for the period of July 1, 2019 to July 1, 2020, which provides up to $650, 000, 000 for covered losses. In April 2020, Billings Clinic initiated a claim under the Policy for losses arising out of the COVID-19 pandemic. Billings Clinic alleges AGLIC has improperly withheld coverage proceeds, and therefore, filed this action in Montana state court, asserting claims for breach of contract and declaratory judgment.

AGLIC removed the suit to this Court. Billings Clinic now moves to remand on the basis of the Policy's forum selection clause.

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Section 6.09 of the Policy provides:

JURISDICTION

Any disputes arising hereunder will be exclusively subject to the jurisdiction of a court of competent jurisdiction within the USA

(Doc. 8 at 86).

II. LEGAL STANDARD

A party is entitled to de novo review of those portions of Judge Cavan's Findings and Recommendation to which they properly object. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The Court may accept, reject, or modify, in whole or in part, those findings and recommendations properly objected to. 28 U.S.C. § 636(b)(1). "A party makes a proper objection by identifying the parts of the magistrate's disposition that the party finds objectionable and presenting legal argument and supporting authority, such that the district court is able to identify the issues and the reasons supporting a contrary result." Lance v. Salmonson, 2018 WL 4335526, at * 1 (D. Mont. Sept. 11, 2018) (quoting Montana Shooting Sports Ass 'n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)). Simply restating the party's argument previously made before the magistrate judge is not a sufficient objection. Id.

Absent an objection, a court reviews a magistrate's findings and recommendations for clear error. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Clear error exists if the Court is left with a "definite and firm

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conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).

III. DISCUSSION

In their motion to remand, Billings Clinic argued that the case should be remanded back to the state court because the Policy's forum selection clause effectively waived AGLIC's right to remove the lawsuit. Judge Cavan disagreed and found that the Policy's forum selection clause did not constitute a waiver of AGLIC's removal right. Instead, Judge Cavan determined that the clause "plainly states that any dispute arising under the Policy will be litigated in the United States, in a court with subject matter jurisdiction over the dispute and personal jurisdiction over the parties. It does not suggest that AGLIC is waving its removal rights, that Billings Clinic has the right to choose venue, or otherwise establish a specific venue." (Doc. 24 at 9).

Billings Clinic objected to Judge Cavan's Findings and Recommendations asserting that (1) Judge Cavan erred because AGLIC could have included terms reserving the right to remove in the forum selection clause but failed to do so, and (2) Judge Cavan erred because the plain terms of the clause required AGLIC to submit to the jurisdiction of the court chosen by Billings Clinic. AGLIC responded that the right to removal is a statutory right and requires no express contractual reservation to enforce. AGLIC also argued that Judge Cavan's interpretation of the

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forum selection clause was correct based on the plain language employed and this Court should therefore adopt Judge Cavan's recommendations.

Neither party contests that federal subject matter jurisdiction exists in this case based on diversity of parties and the amount in controversy. The Court agrees and finds that diversity jurisdiction exists under 28 U.S.C. § 1332 as Billings Clinic (Montana) and AGLIC (Illinois) are citizens of different states and the amount in controversy exceeds $75, 000.

A. Whether A GLIC needed to Expressly Reserve its Right to Removal in the Policy's Forum Selection Clause,

Billings Clinic asserts that AGLIC's failure to include language reserving the...