The opinion of the court was delivered by: Will, District Judge.
This is a personal injury action by a resident of Illinois
against a Wisconsin corporation which operates a summer camp
in that State, where the accident occurred, and its insurer.
The policy was written, executed and delivered in the State of
Defendant insurance company has moved to dismiss the action
on the grounds that (1) the complaint fails to state a cause
of action upon which relief can be granted, and (2) the Court
is without jurisdiction in that the defendant Camp Ramah in
Wisconsin maintains its principal place of business in the
City of Chicago and therefore the necessary diversity of
citizenship does not exist.
In support of its contention that the complaint fails to
state a claim upon which relief can be granted, the insurance
company asserts that its joinder as a defendant is a violation
of the well settled public policy of the State of Illinois
against joinder of insurance companies, as enunciated in
numerous decisions, as well as a violation of the "no action"
clause of the policy, a copy of which is before the Court as
Plaintiff contends that such joinder is proper since the
cause of action arose in the State of Wisconsin and Section
260.11 of the Wisconsin Statute permits such joinder.
Plaintiff further contends that by virtue of that section, the
"no action" clause is not enforceable.
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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