Appeal from the United States District Court for the Eastern District of Wisconsin. No. 78-C-328 -- John W. Reynolds, Judge.
Before Sprecher, Bauer and Cudahy, Circuit Judges.
This action arose from an automobile accident in Ohio between Utz, allegedly a resident of Wisconsin, and Levick, a resident of Pennsylvania. Plaintiff-appellant Utz, joined by her insurer, Classified Insurance Corporation, brought this diversity action in the district court against defendant-appellee Levick and her insurer, Nationwide Insurance Company ("Nationwide"). Defendants' motion to dismiss the complaint as to both plaintiffs was granted by the district court, and plaintiffs appeal. We find that the record below is insufficient to support the action of the district court, and we, therefore, reverse and remand for further proceedings consistent with this opinion.
Nationwide is not a Wisconsin corporation, but it is qualified to do business in Wisconsin and has negotiated a partial settlement of Utz's claims through its Wisconsin agent, Crawford and Company ("Crawford"). Levick has not had any contacts with Wisconsin except insofar as the negotiations conducted by Nationwide through Crawford may be deemed to be activities undertaken on her behalf (i. e., insofar as Nationwide and Crawford may be deemed to be Levick's agents).
Defendants sought dismissal on only three grounds: (1) lack of diversity jurisdiction, (2) lack of personal jurisdiction over Levick because she had no contacts with the state of Wisconsin and (3) improper venue. The district court granted the motion on ground (2) as to Levick, finding that her contacts with Wisconsin were not sufficient to sustain jurisdiction. The court did not rule on the diversity or venue issues but held, sua sponte, that Nationwide could not be joined as a defendant because the requirements of the Wisconsin direct action statute had not been met.
2. The Action Against Nationwide
The Wisconsin direct action statute allows a plaintiff to join an insurer as a proper party defendant in an action against the insured for damages resulting from the negligence of the insured. Wis.Stat. § 803.04(2)(a).*fn1 However, the second sentence of this subsection limits its application, stating that "(i)f the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state." Thus, in order to join an insurance company in the action, the accident must have occurred in Wisconsin, or the insurance policy must have been issued or delivered in Wisconsin. In the instant case, the accident occurred in Ohio, not Wisconsin, so Nationwide would not be a proper party defendant unless the insurance policy was issued or delivered in Wisconsin. Nationwide had not sought dismissal on grounds of place of issuance of the policy so neither side briefed the question where the insurance policy was issued or delivered. The insurance policy itself was never introduced into evidence. In spite of this apparent gap in the evidence, the district court dismissed Nationwide, noting that "plaintiffs have not alleged in any way that defendant Levick's policy was issued to her by Nationwide in Wisconsin. Consequently, there is no jurisdiction over defendant Nationwide. . . ."
There are several difficulties with this disposition. While we find it unlikely that Nationwide issued or delivered the policy in Wisconsin since Levick was a resident of Pennsylvania, under these circumstances plaintiffs' failure to allege facts pertaining to issuance or delivery should not be dispositive of this question. Plaintiffs are not, under existing case law, required to plead facts relating to the place of issuance or delivery of the policy. There is at least one case applying the direct action statute to similar facts in which the defendant insurance company's motion to dismiss was denied because there was nothing in the record to indicate where the insurance policy was issued. Scribbins v. State Farm Mutual Automobile Insurance Co., 304 F. Supp. 1268 (E.D.Wis.1969). Thus, under existing case law (in the Eastern District of Wisconsin), the burden is on the defendant insurer to introduce evidence relating to the limitations of the direct action statute when it seeks dismissal on that basis. It follows that the burden is not on plaintiff to make allegations or present evidence about the place of issuance or delivery of the policy when defendant has not raised the issue, as was the situation in the instant case.
Further and most importantly, since the district court reached the question of the direct action statute on its own motion and without the question's having been raised by the parties, the plaintiff did not have an opportunity to present any evidence which might have indicated that Nationwide should be estopped from asserting the limitations of the direct action statute as a defense.
In Kirchen v. Orth, 390 F. Supp. 313 (E.D.Wis.1975), the defendant insurance company was held to be estopped from raising the limitations of the direct action statute as a defense because Crawford, its Wisconsin agent, had entered into negotiations with the plaintiff in Wisconsin and had thus lulled the plaintiffs into believing that the insurance company could be sued in Wisconsin. In the instant case, plaintiffs have also negotiated with Crawford (Nationwide's agent in Wisconsin), and, therefore, it is possible that Nationwide may be held to be estopped, as was the insurance company in Kirchen v. Orth.*fn2
We, therefore, find it necessary to reverse and remand this aspect of the case for a fuller consideration whether the insurance policy was issued and delivered in Wisconsin and whether Nationwide should be deemed to be estopped from asserting the limitations of the direct action statute as a defense to the action.
3. Jurisdiction over Levick
The district court dismissed the complaint as to Levick, finding that Levick had no contacts with Wisconsin other than the negotiations conducted by Nationwide (through Crawford) in Wisconsin. As to these negotiations, the court stated that "Levick had no control whatsoever ...