and delivered outside the State was specifically passed upon
by the Wisconsin Supreme Court in Ritterbusch v. Sex-smith,
256 Wis. 507, 41 N.W.2d 611, 16 A.L.R.2d 873 (1950). In that
case the Court held that a similar "no action" clause was
effective in Wisconsin to postpone action against the insurer
until after adjudication of liability against the insured,
where the policy was issued in Massachusetts, even though the
insured was a Wisconsin resident and ordinarily kept and used
the insured automobile in Wisconsin and the accident also
occurred in that State. The Court specifically concluded that
the law of the State where the contract was made, not the law
of the State of performance, was controlling.
In Klabacka v. Midwestern Mutual Automobile Ins. Co.,
D.C.W.D.Wis., 1956, 146 F. Supp. 243, the United States
District Court for the Western District of Wisconsin granted
the motion of the defendant insurance company to dismiss on
the grounds that it was not a proper party. In that case, the
policy, which contained a "no action" clause, was executed in
Missouri where such a clause was valid and enforceable. Again,
the insured was a resident of Wisconsin and the accident,
which was the subject matter of the litigation, took place in
In light of the clear holdings of the Wisconsin Supreme
Court and the United States District Court for the Western
District of Wisconsin, the "no action" clause of the instant
policy is valid and precludes joinder of the insurance company
as a defendant in this action. It becomes unnecessary
therefore to consider whether the question of such joinder is
substantive or procedural or whether the public policy of
Illinois precludes such joinder and is controlling.
The erroneous joinder of the insurance company does not,
however, warrant dismissal of the action as to the defendant
Camp Ramah in Wisconsin since the complaint clearly states a
cause of action against that defendant.
With respect to the second contention that the Court is
without jurisdiction because the principal place of business
of the defendant Camp Ramah in Wisconsin is in Chicago,
Illinois, the following facts are undisputed. The defendant is
a Wisconsin corporation organized for the purpose of operating
a summer camp in the State of Wisconsin and, in fact, does
operate such a camp at Conover, Wisconsin. It maintains a
Chicago office, having desk space in Room 505 at 72 East
Eleventh Street, Chicago, Illinois. The latter office is open
for approximately nine months of each year while the Camp is
operated for approximately three months of each year.
Title 28 U.S.C. § 1332(c) provides that for purposes of
determining diversity of citizenship "a corporation shall be
deemed a citizen of any State by which it has been incorporated
and of the State where it has its principal place of business."
While it is clear that the corporation maintains an office in
the City of Chicago for approximately nine months of the year
and operates its summer camp for only approximately three, the
Chicago office is but an adjunct to the corporation's principal
activity which is the conduct of the summer camp in the State
of Wisconsin. Accordingly, it would appear that the requisite
diversity of citizenship exists.
It follows from all of the foregoing that defendant's motion
to dismiss the action should be granted as to defendant
Indemnity Insurance Company of North America and denied as to
defendant Camp Ramah in Wisconsin.
An order consistent with the above will be entered.
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