Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, No. 491

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore MESKILL and NEWMAN, Circuit Judges, and POLLACK; MILTON POLLACK
Citation896 F.2d 674
Decision Date14 February 1990
Docket NumberD,No. 491
PartiesRHULEN AGENCY, INC., Plaintiff-Appellant, v. ALABAMA INSURANCE GUARANTY ASSOCIATION, Arizona Property and Casualty Insurance Guaranty Fund, Connecticut Insurance Guaranty Association, Florida Insurance Guaranty Association, Georgia Insurance and Insolvency Pool, Iowa Insurance Guaranty Association, Illinois Insurance Guaranty Fund, Kansas Insurance Guaranty Association, Louisiana Insurance Guaranty Association, Maryland Property and Casualty Insurance Guaranty Corporation, Massachusetts Insurers Insolvency Fund, Michigan Property and Casualty Guaranty Association, Minnesota Insurance Guaranty Association, Nevada Insurance Guaranty Association, New Jersey Property and Liability Insurance Guaranty Association, North Carolina Insurance Guaranty Association, North Dakota Insurance Guaranty Association, Ohio Insurance Guaranty Association, Oklahoma Property and Casualty Insurance Guaranty Association, South Carolina Insurance Guaranty Association, South Dakota Insurance Guaranty Association, Tennessee Insurance Guaranty Association, Vermont Property and Casualty Insurance Guaranty Association, Washington Insurance Guaranty Association, West Virginia Insurance Guaranty Association, Wisconsin Insurance Security Fund, Defendants-Appellees. ocket 89-7735.

Page 674

896 F.2d 674
RHULEN AGENCY, INC., Plaintiff-Appellant,
v.
ALABAMA INSURANCE GUARANTY ASSOCIATION, Arizona Property and
Casualty Insurance Guaranty Fund, Connecticut Insurance
Guaranty Association, Florida Insurance Guaranty
Association, Georgia Insurance and Insolvency Pool, Iowa
Insurance Guaranty Association, Illinois Insurance Guaranty
Fund, Kansas Insurance Guaranty Association, Louisiana
Insurance Guaranty Association, Maryland Property and
Casualty Insurance Guaranty Corporation, Massachusetts
Insurers Insolvency Fund, Michigan Property and Casualty
Guaranty Association, Minnesota Insurance Guaranty
Association, Nevada Insurance Guaranty Association, New
Jersey Property and Liability Insurance Guaranty
Association, North Carolina Insurance Guaranty Association,
North Dakota Insurance Guaranty Association, Ohio Insurance
Guaranty Association, Oklahoma Property and Casualty
Insurance Guaranty Association, South Carolina Insurance
Guaranty Association, South Dakota Insurance Guaranty
Association, Tennessee Insurance Guaranty Association,
Vermont Property and Casualty Insurance Guaranty
Association, Washington Insurance Guaranty Association, West
Virginia Insurance Guaranty Association, Wisconsin Insurance
Security Fund, Defendants-Appellees.
No. 491, Docket 89-7735.
United States Court of Appeals,
Second Circuit.
Argued Jan. 10, 1990.
Decided Feb. 14, 1990.

Page 675

Glen Feinberg, New York City (Of Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, of counsel for Tepper, DuBois & Billig, Monticello, N.Y.), for plaintiff-appellant Rhulen Agency, Inc.

Edith K. Payne, Newark, N.J. (Of Stryker, Tams & Dill, Newark, N.J.), for defendants-appellees Alabama Ins. Guar. Ass'n, et al., (Bressler, Amery & Ross, Florham Park, N.J., of counsel).

Edward M. Cohen, New York City (Raskin & Rappoport, P.C., New York City), for defendant-appellee Maryland Property and Cas. Ins. Guar. Corp.

Before MESKILL and NEWMAN, Circuit Judges, and POLLACK, Senior District Judge. *

MILTON POLLACK, Senior District Judge.

In this suit in which jurisdiction is based on diversity of citizenship, plaintiff, the Rhulen Agency, Inc. ("Rhulen"), appeals from an order of the Southern District of New York, 715 F.Supp. 94, dismissing without prejudice its action for lack of personal jurisdiction over the defendant unincorporated associations. For the reasons appearing hereafter the order below will be affirmed but on the ground that the Court

Page 676

lacks subject matter jurisdiction, which precludes consideration of the existence of personal jurisdiction.

I.

Plaintiff Rhulen, a New York corporation, was the broker and program manager for Transit Casualty Co. ("Transit"), a Missouri insurance carrier with its principal place of business in California and authorized to do business in New York. It was Rhulen's customary practice as an agent for Transit to advance monies to the Transit customers Rhulen had obtained for Transit, when Rhulen decided that they had meritorious claims.

The defendants (referred to hereafter in short as the "Guaranty Associations") are unincorporated associations 1 created in various states throughout the country pursuant to their state statutes based upon the Post-Assessment Property and Liability Insurance Guaranty Association Model Act (the "Model Act"). 2 The purpose of the Model Act is to protect policyholders and claimants through a local Guaranty Association against the insolvency of a local insurer with whom they have contracted. 3 The Guaranty Associations are comprised of all insurance companies who are authorized to write casualty and property insurance policies in the particular state. At least one member insurance company of each Guaranty Association sued herein is a citizen of New York.

The Guaranty Associations cover claims:

... which arise[ ] out of and [are] within the coverage and [are] subject to the applicable limits of an insurance policy to which this Act applies issued by an insurer ... and (a) the claimant or insured is a resident of this state at the time of the insured event, or (b) the property from which the claim arises is permanently located in this state.

Model Act Sec. 5(6). In general, coverage of such claims is provided by the member insurance companies based upon an assessment according to the dollar amount of the premiums written on property or casualty insurance policies sold by those companies in the state. Model Act Sec. 8(c). However, under the Model Act, the Guaranty Association itself bears liability for any such claims, not the individual members.

In the event of an insurer's insolvency, the Guaranty Association is "deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent." Model Act (1)(b). The Model Act further provides that the Guaranty Association may "sue or be sued." Model Act Sec. 8(2)(c). However, the Model Act does not designate the forum for such a suit.

Transit became insolvent and, on December 3, 1985, was ordered into liquidation....

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374 practice notes
  • Saint-Guillen v. U.S., No. 08-cv-441(DLI)(JO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2009
    ...12(b)(1) motion first. Sherman v. Black, 510 F.Supp.2d 193, 197 (E.D.N.Y.2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d "[T]he terms of [the United States's] consent to be sued in any court define that court's jurisdiction to entertain the suit." United......
  • Alliance of Auto. Mfrs., Inc. v. Currey, Civil Action No. 3:13–CV–398 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 26, 2013
    ...since lack of subject matter jurisdiction may render the other challenges moot. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990); 5B Charles Alan Wright et al., Federal Practice and Procedure § 1350 (3d ed.2013) (“[W]hen the motion [to dismiss] is based o......
  • U.S. ex rel. Smith v. Yale University, No. 3:00CV1359 (PCD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 14, 2006
    ...accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n., 896 F.2d 674, 678 (2d b. Whether Rule 12(b)(1) is the Proper Vehicle for Challenging Subject Matter Jurisdiction under Section 3730(e)(4) Relator challeng......
  • Williams v. Bank of N.Y. Mellon Trust Co., 13-CV-6814 (SJF)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 2, 2015
    ...first." Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 703 (S.D.N.Y. 2011); see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990) ("Where, as here, the defendant moves for dismissal under Rule 12(b)(1), as well as other grounds, the court should conside......
  • Request a trial to view additional results
380 cases
  • Saint-Guillen v. U.S., No. 08-cv-441(DLI)(JO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2009
    ...12(b)(1) motion first. Sherman v. Black, 510 F.Supp.2d 193, 197 (E.D.N.Y.2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d "[T]he terms of [the United States's] consent to be sued in any court define that court's jurisdiction to entertain the suit." United......
  • Alliance of Auto. Mfrs., Inc. v. Currey, Civil Action No. 3:13–CV–398 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 26, 2013
    ...since lack of subject matter jurisdiction may render the other challenges moot. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990); 5B Charles Alan Wright et al., Federal Practice and Procedure § 1350 (3d ed.2013) (“[W]hen the motion [to dismiss] is based o......
  • U.S. ex rel. Smith v. Yale University, No. 3:00CV1359 (PCD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 14, 2006
    ...accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n., 896 F.2d 674, 678 (2d b. Whether Rule 12(b)(1) is the Proper Vehicle for Challenging Subject Matter Jurisdiction under Section 3730(e)(4) Relator challeng......
  • Williams v. Bank of N.Y. Mellon Trust Co., 13-CV-6814 (SJF)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 2, 2015
    ...first." Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 703 (S.D.N.Y. 2011); see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990) ("Where, as here, the defendant moves for dismissal under Rule 12(b)(1), as well as other grounds, the court should conside......
  • Request a trial to view additional results

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