Redmond v. Sirius Int'l Ins. Corp.

Decision Date15 January 2014
Docket NumberCase No. 12-CV-587
CourtU.S. District Court — Eastern District of Wisconsin

Ryan M. Redmond ("Redmond") was seriously injured while skiing at Grand Teton National Park on July 2, 2011. When his health insurer, Sirius International Insurance Corporation ("Sirius"), denied coverage for his injuries, Redmond filed the present action, initially in Waukesha County Circuit Court. Sirius removed the action to federal court on June 8, 2012 based upon the diversity of the parties. On June 14, 2012, Sirius filed its answer and a counterclaim along with a motion to transfer the case to the Southern District of Indiana. Redmond responded to the motion and also filed motions asking that the court strike the defendant's answer and counterclaim and asking the court to require the defendant to post bond in accordance with Wisconsin law.

On August 7, 2012, the court denied the plaintiff's motions. With respect to Sirius' motion to transfer the action to the Southern District of Indiana, the court found that the record was insufficient to permit the court to resolve the motion and therefore held the motion inabeyance as the parties engaged in discovery. On March 20, 2013, the court denied without prejudice the motion to transfer.

On September 9, 2013, the parties filed a total of eight separate motions. (Docket Nos. 54, 56, 58, 60, 63, 66, 70, 75.) The plaintiff subsequently filed two additional motions. (Docket Nos. 84, 107.) Of these 10 motions, the court must first address the defendant's renewed motion to transfer the case to Southern District of Indiana, (Docket No. 54), and thus decide whether this court or the Southern District of Indiana should resolve the 9 other motions.


The relevant policy contains a forum selection clause providing that venue for any action related to the policy shall be in "the Circuit and/or Superior Courts of Marion County [Indiana] and in the United States District Court for the Southern District of Indiana, Indianapolis Division (assuming that federal jurisdiction is otherwise appropriate and lawful)." (Docket No. 7 at 3-4.) If the forum selection clause is valid, pursuant to 28 U.S.C. § 1404(a), the "court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer." Atl. Marine Constr. Co. v. United States Dist. Court, 517 U.S. __, __, 187 L. Ed. 2d 487, 494 (2013).

Wisconsin law bars such forum selection clauses in insurance policies. Wis. Stat. § 631.83(3)(b). But Wisconsin's prohibition applies to only "insurance policies and group certificates delivered or issued for delivery in this state, on property ordinarily located in this state, on persons residing in this state when the policy or group certificate is issued, or on business operations in this state." Wis. Stat. § 631.01(1). The defendant's argument against the application of this provision is limited to its view that Redmond was not "residing in" Wisconsin at the time the policy was issued. Sirius does not present, and therefore the court shall notconsider any other arguments that may be raised as to why this statutory proscription may be inapplicable to the present dispute.

As the court discussed at length in its prior order, Redmond v. Sirius Int'l Ins. Corp., 2012 U.S. Dist. LEXIS 110594 (E.D. Wis. Aug. 7, 2012), there is a dispute as to whether Redmond was "residing in" Wisconsin when the policy was issued. The court concluded that "residing in" "include[s] not only those who dwell within the state for a long-term or extended period of time, but also, to the extent that the categories are not redundant, those who have Wisconsin as their domicile, i.e. 'an individual's true, fixed, and permanent home where the individual intends to remain permanently and indefinitely and to which, whenever absent, the individual intends to return.'" Id. at 21 (quoting Wis. Stat. §§ 71.01(1n), 71.22(1t)).

Redmond traveled frequently. In fact, the insurance policy that is at issue here was designed specifically to serve the needs of such travelers. He lived in his mother's home in Delafield, Wisconsin until November 5, 2006 when he left for about six months of missionary work in Peru. He returned to Wisconsin and lived in Wisconsin until August 29, 2010, aside from a total of 30 days of missionary work in Peru and a month working on a Canadian dude ranch.

On August 25, 2010, from his home in Wisconsin, Redmond electronically submitted an application for renewal of his health insurance for the period of October 20, 2010 to October 20, 2011. (Docket No. 88, ¶8.) In doing so, he requested that the policy documents be sent to him in Vermont where he would be attending school. The application was approved the following day and the declaration and certificate were issued. (Docket No. 88, ¶9.) On August 29, 2010, Redmond left Wisconsin to travel to Vermont where he leased an apartment and attended school from August 30, 2010 through May 20, 2011, returning to Wisconsin in the interim for holidays.(Docket No. 88, ¶¶11-12.) Following May 20, 2011, Redmond returned to Wisconsin. (Docket No. 88, ¶13.)

The court finds that notwithstanding his travels and attendance at school in Vermont, Wisconsin remained Redmond's domicile, and thus he was "residing in" Wisconsin when the policy was issued. This conclusion is further supported by the facts that Redmond filed taxes, had bank accounts, voted, and registered a vehicle in only Wisconsin. (Docket No. 88, ¶¶16-19.) Consequently, the policy's forum selection clause is unenforceable under Wis. Stat. § 631.83(3)(b).

Having concluded that the forum selection clause is invalid, the court must turn to Sirius' alternative argument and consider whether, after balancing all relevant factors, transfer to the Southern District of Indiana remains appropriate pursuant to 28 U.S.C. § 1404(a). "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a).

Section 1404 (a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. Thus, as the Court recognized in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, [(1960)], the purpose of the section is to prevent the waste "of time, energy and money" and "to protect litigants, witnesses and the public against unnecessary inconvenience and expense...."

Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (footnotes omitted). There is no dispute that this action could have been filed in the Southern District of Indiana. Thus, the court's analysis is limited to consideration of the convenience of the parties and witnesses and the interest of justice. The movant "has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986).

"With respect to the convenience evaluation, courts generally consider the availability of and access to witnesses, and each party's access to and distance from resources in each forum. Other related factors include the location of material events and the relative ease of access to sources of proof." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (citations omitted). "The 'interest of justice' is a separate element of the transfer analysis that relates to the efficient administration of the court system." Id.

For this element, courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court's relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy. The interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result.

Id. (citations omitted).

Neither forum is especially more convenient for the parties or witnesses. Of the witnesses identified by the parties as likely to testify at trial, four live in Wyoming, one lives in Colorado, two (or three using the defendant's count of potential witnesses) live in Indiana, one (the plaintiff) lives in Wisconsin (not Vermont as the defendant states), and one lives in Florida but maintains an apartment and office in Wisconsin. (Docket Nos. 87 at 15; 55 at 10.) The plaintiff's attorneys have offices in Milwaukee, Wisconsin; the defendant's attorneys are located in San Antonio, Texas, and are assisted by local counsel. Thus, a number of people are going to have to travel for trial. When traveling from Wyoming, Colorado, or Texas, it makes little difference whether the destination is Indianapolis or Milwaukee. The convenience of a trial in Indianapolis for the witnesses in Indiana would be countered by the inconvenience to the plaintiff, his attorneys, as well as his expert.

The defendant also notes that evidence, such as the plaintiff's insurance documents, is more likely to be found at offices in Indiana. (Docket No. 55 at 10.) The court finds that in the usual case, the location of documentary evidence is generally an inconsequential consideration. Routine discovery in any case will involve digitizing documents and thus whether parties are separated by city blocks or time zones, the means and ease of exchange will be the same. The court has no reason to believe this would not be the case here. And after all, discovery is complete so this truly is a non-issue.

The court also recognizes that, although it is unenforceable under Wisconsin law, the fact...

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