Edward R. Roybal federal building and U.S. courthouse.

This story is reprinted with permission from FC&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.

A federal district court in California has ruled that it did not have personal jurisdiction over an insurance company despite a nationwide coverage clause in the insurance policy issued by the insurer.

The Case

CDC San Francisco entered into a contract with Webcor Construction, for construction of the InterContinental San Francisco Hotel.

Webcor contracted with Architectural Glass & Aluminum Co. Inc. (AGA) for the design, construction, and installation of a curtain wall glazing system to consist of an interconnected system of blue glass forming the building's entire exterior.

AGA subcontracted with Midwest Curtainwalls to design, engineer and fabricate the aluminum curtain wall frames.

AGA purchased insulated glass units (IGUs) for the glazing system from their manufacturer, Viracon Inc.

Viracon purchased a sealant, polyisobutylene (PIB), used to manufacture the IGUs from Quanex I.G. Systems Inc.

Viracon shipped the IGUs to Midwest, and Midwest fabricated the individual aluminum curtain wall units to be installed on the project by AGA.

CDC subsequently brought a construction defect case against Webcor, AGA, Midwest, Viracon and Quanex in a California state court (the SF action). CDC alleged that the IGUs used to create the curtain walls for the project developed a film and discoloration due to use of incompatible materials. CDC sought to hold the defendants in the SF action liable for the cost of replacing and repairing 6,400 IGUs.

The parties ultimately settled the action.

The litigation was not over. Webcor and AGA filed an insurance coverage action in federal district court in California against National Union Fire Insurance of Pittsburgh, Old Republic General Insurance Corp., Liberty Insurance Underwriters Inc. and Zurich American Insurance Co. Webcor and AGA alleged that Old Republic was AGA's insurer, and that Webcor was an additional insured on the policies.

Old Republic then filed a third-party complaint against Acuity Mutual Insurance Co. and Motorists Mutual Insurance Co. Old Republic alleged that it paid out monies to provide a defense for AGA and Webcor in the SF action and incurred other costs of defense. Old Republic alleged that the policy issued to Midwest, the material supplier, by Acuity required that Acuity defend Webcor and AGA as well. Old Republic sought contribution from Acuity for the defense costs it had paid.

Acuity moved to dismiss Old Republic's third-party complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure.

The District Court's Decision

The district court granted Acuity's motion, finding that Old Republic had not established a basis for personal jurisdiction over Acuity in the district court.

In its decision, the district court first ruled that general jurisdiction had not been established over Acuity. The district court reasoned that Acuity:

• was a Wisconsin insurance company with its principal place of business in Sheboygan, Wisconsin;
• conducted no business in California, was not licensed to do business in California, did not sell insurance in California, and had no brokers or agents based in California; and
• did not accept insurance applications, collect premiums or maintain any offices, bank accounts, or employees in California.

The district court rejected Old Republic's contention that Acuity's filing of two prior, unrelated claims in litigation in California courts established general jurisdiction over it. The district court pointed out that the two other actions were (1) when Acuity filed a complaint-in-intervention on behalf of an involuntarily dissolved insured; and (2) a small claims action. Those “unrelated litigation,” the district court said, did “nothing to establish continuous and systematic activity in California by Acuity.”

The district court also ruled that Acuity's online workers' compensation claim form, which included language specific to claims in California, did not support general jurisdiction in California, given that the form was a standardized form produced by the Association for Cooperative Operations Research and Development (ACORD), was meant to be used by any insurance company, agent, or broker throughout the country, and included language specific to many states in addition to California.

The district court then rejected the Old Republic argument that the district court had “specific jurisdiction” over Acuity based on a provision in Acuity's policy that stated that the policy applied to claims in the “coverage territory,” which included the entire United States and which, therefore, contractually bound Acuity to defend Midwest in California.

The district court ruled that the existence of a nationwide coverage provision in the Acuity policy, and an underlying lawsuit brought in California, did not constitute sufficient contact with California to support specific jurisdiction. It pointed out that Acuity was an insurer licensed to do business in Ohio and had an Ohio agent who sold a policy to Midwest, an Ohio corporation with an Ohio principal place of business. “No part of Midwest's application for insurance had any contact or involvement with California,” the district court said. Simply put, the district court said that the facts were insufficient to establish ”purposeful availment” of a California forum by Acuity.

Given that the only contacts Acuity had with California appeared to be letters from Acuity's counsel in Ohio sent to AGA's counsel stating the reasons Acuity was declining tender under the policy, the district court also ruled that Acuity had no forum-related activities sufficient to support specific jurisdiction.

The case is Webcor Construction v. Zurich American, No. 17-cv-02220-YGR (N.D. Cal. Nov. 3, 2017). Attorneys involved include: For Webcor Construction, a California limited partnership, doing business as, Webcor Builders, Plaintiff: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Christopher Aaron Rheinheimer, Manatt, Phelps & Phillips, San Francisco; Susan White, Manatt Phelps & Phillips, Los Angeles. For Architectural Glass and Aluminum Co., Inc., a California corporation, plaintiff, counter-defendant: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Brandt Louis Wolkin, David Francis Myers, Jennifer L. Elowsky, Wolkin Curran, San Francisco. For Zurich American Insurance Co., a New York corporation, defendant, cross-claimant, cross-defendant: Blaise S. Curet, Sinnott Puebla Campagne & Curet, APLC, Emeryville. For Old Republic General Insurance Corp., an Illinois corporation, defendant, counter-claimant, third-party plaintiff: John R. Campo, Attorney at Law, Redwood City. For National Union Fire Insurance Co. of Pittsburgh, a Pennsylvania corporation, defendant: Joshua A. Zlotlow, lead attorney, Samuel J. Morris, Herold & Sager, Encinitas. For Liberty Insurance Underwriters Inc., an Illinois corporation, defendant, cross-defendant: Susan Jacqueline Field, lead attorney, Musick, Peeler and Garrett, Los Angeles; Chad A. Westfall, Musick Peeler & Garrett, San Francisco. For Old Republic General Insurance Corp., an Illinois corporation, Zurich American Insurance Co., a New York corporation, cross-defendants: Blaise S. Curet, Sinnott Puebla Campagne & Curet, APLC, Emeryville. For Old Republic General Insurance Corp., an Illinois corporation, cross-claimant: A. Geoffrey Hutchinson, Redwood City; John R. Campo, Attorney at Law, Redwood City, CA. For National Union Fire Insurance Co. of Pittsburgh, a Pennsylvania corporation, cross-defendant: Joshua A. Zlotlow, Samuel J. Morris, Herold & Sager, Encinitas. For Webcor Construction, a California limited partnership, counter-defendant: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Susan White, Manatt Phelps & Phillips, Los Angeles. For Motorists Mutual Insurance Company, third-party defendant: James Hugh Wilkins, lead attorney, Wilkins,Drolshagen & Czeshinski, Fresno. For Acuity Mutual Insurance Co., third-party defendant: Alan Edward Swerdlow, lead attorney, Boornazian Jensen & Garthe, Oakland; Kenneth Andrew Calderone, pro hac vice, Hanna, Campbell & Powell, Akron, Ohio.

FC&S Legal Comment

There is a split of authority in the Ninth Circuit as to whether the existence of a coverage territory clause constitutes sufficient contact with the forum to support specific jurisdiction.

The U.S. Court of Appeals for the Ninth Circuit, in Hunt v. Erie Ins. Group, 728 F.2d 1244 (9th Cir. 1984), rejected an assertion that a “substantial connection” for purposes of specific jurisdiction was established by the existence of a nationwide coverage territory clause. There, Linda Jean Hunt was a passenger involved in an automobile accident in Colorado, and made a claim as a third-party beneficiary to the driver's insurance carrier, Erie Insurance Group. The Erie policy included a clause covering accidents occurring anywhere in the United States. After the accident in Colorado, Hunt moved to California to continue her recovery, and brought suit in California against Erie for denying her coverage for medical and rehabilitation expenses. Hunt alleged breach of contract, breach of fiduciary duty, and bad faith. Erie had no other contacts with California and moved for dismissal based on lack of personal jurisdiction. The Ninth Circuit found there was no support for specific jurisdiction based upon the coverage clause alone. “[The insurer's] failure to structure its policy to exclude the possibility of defending a suit wherever an injured claimant requires medical care cannot, in our view, fairly be characterized as an act by which [the insurer] has purposefully availed itself of the privilege of conducting activities in California.”

A few years later, in Farmers Ins. Exchange v. Portage La Prairie Mut. Ins., 907 F.2d 911 (9th Cir. 1990) (Portage), the Ninth Circuit held that an insurer had shown purposeful availment of the forum where it included a nationwide coverage clause in its policy. The dispute arose from a single vehicle accident that occurred in Montana, and as to which both Farmers and Portage La Prairie were obligated to provide coverage. The driver was covered by her own policy issued by Farmers in Montana, and by the vehicle owner's insurance issued by Portage. Farmers defended and settled the underlying litigation, although it claimed that Portage was the primary insurer, and that Farmers was an “excess” insurer under the circumstances. Farmers subsequently filed an action against Portage for declaratory relief and damages, alleging bad faith and breach of contract for its refusal to reimburse Farmers. The Ninth Circuit reversed a dismissal by the district court, finding that Portage's territorial policy limit included Montana in its scope, and thereby purposefully availed itself of a Montana forum by contracting to indemnify and defend claims there. “[L]itigation requiring the presence of the insurer is not only foreseeable, but it was purposefully contracted for by the insurer.”

More recently, in King v. American Family Mut. Ins, 632 F.3d 570, 578 (9th Cir. 2011), the Ninth Circuit held that there were not sufficient contacts with the forum to find specific jurisdiction over an insurer, even though the accident triggering coverage took place in the forum and the policy at issue included a nationwide coverage clause. King involved a motorcycle accident occurring in Montana. Timothy King and his wife, Gwynne King were insured by the defendant insurance companies; the vehicles involved in the accident were not covered by their policies. Citing Montana case law, Carter v. Miss. Farm Bureau Cas. Ins., 109 P.3d 735, 742 (Mont. 2005), the court held that the lack of any other contacts with the forum other than the accident and the nationwide coverage clause precluded personal jurisdiction.

The court distinguished Portage, noting that it concerned an indemnity dispute, while King concerned a claim for breach of contract by the insured.

Several subsequent cases in the Ninth Circuit have found that a nationwide coverage clause, without more, was insufficient to establish purposeful availment. Scott, Blane & Darren Recovery v. Auto-Owners Ins., No. 2:14-CV-03675-ODW (C.D. Cal. Aug. 27, 2014) (King “made clear that [the Ninth Circuit's] reasoning in Portage La Prairie applies in indemnity actions, while King applies in duty-to-defend actions brought by the insured”); Dokoozian Constr. v. Exec. Risk Specialty Ins., No. C15-703 MJP (W.D. Wash. July 28, 2015) (“The Ninth Circuit has rejected the notion that nationwide coverage provisions automatically give rise to personal jurisdiction over a defendant in a case where an insured brings breach-of-contract claims against its insurer in a foreign state,” citing King); Hunt v. Auto-Owners Ins., No. 2:15-CV-JCM NJK (D. Nev. June 10, 2015) (“the Ninth Circuit suggested that a nationwide territory clause alone is insufficient to subject defendants to personal jurisdiction over any contractual dispute in any given forum . . . but is limited to cases arising out of defendants' duties to indemnify and defend claims in any state”); cf. Hawthorne v. Mid-Continent Cas., No. C16-1948RSL (W.D. Wash. Apr. 4, 2017) (“Because this is a duty-to-defend case and not a simple coverage action, the court follows [Portage] and finds that the combination of nationwide coverage and the occurrence of an insured event in Washington is sufficient for the exercise of jurisdiction over plaintiff's case”).

One district court in the Ninth Circuit has found, subsequent to King, that an insurer purposely availed itself of the privilege of conducting activities in the forum through its policy's nationwide territorial coverage clause. See Evanston Ins. v. W. Cmty. Ins., 13 F. Supp. 3d 1064, 1070 (D. Nev. 2014). The district court, citing Portage, stated that if the insurer “had wished to avoid suit in all fora except Idaho, it could have limited the coverage territory to the state of Idaho.” Based on this premise, the court determined that the claim for declaratory relief and equitable contribution “arose from” the insurer's agreement to defend a suit against its insured, and denied the motion to dismiss for lack of personal jurisdiction. The court did not reference King or the cases following it.

Steven A. Meyerowitz is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. As FC&S Legal director, Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.

Edward R. Roybal federal building and U.S. courthouse.

This story is reprinted with permission from FC&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.

A federal district court in California has ruled that it did not have personal jurisdiction over an insurance company despite a nationwide coverage clause in the insurance policy issued by the insurer.

The Case

CDC San Francisco entered into a contract with Webcor Construction, for construction of the InterContinental San Francisco Hotel.

Webcor contracted with Architectural Glass & Aluminum Co. Inc. (AGA) for the design, construction, and installation of a curtain wall glazing system to consist of an interconnected system of blue glass forming the building's entire exterior.

AGA subcontracted with Midwest Curtainwalls to design, engineer and fabricate the aluminum curtain wall frames.

AGA purchased insulated glass units (IGUs) for the glazing system from their manufacturer, Viracon Inc.

Viracon purchased a sealant, polyisobutylene (PIB), used to manufacture the IGUs from Quanex I.G. Systems Inc.

Viracon shipped the IGUs to Midwest, and Midwest fabricated the individual aluminum curtain wall units to be installed on the project by AGA.

CDC subsequently brought a construction defect case against Webcor, AGA, Midwest, Viracon and Quanex in a California state court (the SF action). CDC alleged that the IGUs used to create the curtain walls for the project developed a film and discoloration due to use of incompatible materials. CDC sought to hold the defendants in the SF action liable for the cost of replacing and repairing 6,400 IGUs.

The parties ultimately settled the action.

The litigation was not over. Webcor and AGA filed an insurance coverage action in federal district court in California against National Union Fire Insurance of Pittsburgh, Old Republic General Insurance Corp., Liberty Insurance Underwriters Inc. and Zurich American Insurance Co. Webcor and AGA alleged that Old Republic was AGA's insurer, and that Webcor was an additional insured on the policies.

Old Republic then filed a third-party complaint against Acuity Mutual Insurance Co. and Motorists Mutual Insurance Co. Old Republic alleged that it paid out monies to provide a defense for AGA and Webcor in the SF action and incurred other costs of defense. Old Republic alleged that the policy issued to Midwest, the material supplier, by Acuity required that Acuity defend Webcor and AGA as well. Old Republic sought contribution from Acuity for the defense costs it had paid.

Acuity moved to dismiss Old Republic's third-party complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure.

The District Court's Decision

The district court granted Acuity's motion, finding that Old Republic had not established a basis for personal jurisdiction over Acuity in the district court.

In its decision, the district court first ruled that general jurisdiction had not been established over Acuity. The district court reasoned that Acuity:

• was a Wisconsin insurance company with its principal place of business in Sheboygan, Wisconsin;
• conducted no business in California, was not licensed to do business in California, did not sell insurance in California, and had no brokers or agents based in California; and
• did not accept insurance applications, collect premiums or maintain any offices, bank accounts, or employees in California.

The district court rejected Old Republic's contention that Acuity's filing of two prior, unrelated claims in litigation in California courts established general jurisdiction over it. The district court pointed out that the two other actions were (1) when Acuity filed a complaint-in-intervention on behalf of an involuntarily dissolved insured; and (2) a small claims action. Those “unrelated litigation,” the district court said, did “nothing to establish continuous and systematic activity in California by Acuity.”

The district court also ruled that Acuity's online workers' compensation claim form, which included language specific to claims in California, did not support general jurisdiction in California, given that the form was a standardized form produced by the Association for Cooperative Operations Research and Development (ACORD), was meant to be used by any insurance company, agent, or broker throughout the country, and included language specific to many states in addition to California.

The district court then rejected the Old Republic argument that the district court had “specific jurisdiction” over Acuity based on a provision in Acuity's policy that stated that the policy applied to claims in the “coverage territory,” which included the entire United States and which, therefore, contractually bound Acuity to defend Midwest in California.

The district court ruled that the existence of a nationwide coverage provision in the Acuity policy, and an underlying lawsuit brought in California, did not constitute sufficient contact with California to support specific jurisdiction. It pointed out that Acuity was an insurer licensed to do business in Ohio and had an Ohio agent who sold a policy to Midwest, an Ohio corporation with an Ohio principal place of business. “No part of Midwest's application for insurance had any contact or involvement with California,” the district court said. Simply put, the district court said that the facts were insufficient to establish ”purposeful availment” of a California forum by Acuity.

Given that the only contacts Acuity had with California appeared to be letters from Acuity's counsel in Ohio sent to AGA's counsel stating the reasons Acuity was declining tender under the policy, the district court also ruled that Acuity had no forum-related activities sufficient to support specific jurisdiction.

The case is Webcor Construction v. Zurich American, No. 17-cv-02220-YGR (N.D. Cal. Nov. 3, 2017). Attorneys involved include: For Webcor Construction, a California limited partnership, doing business as, Webcor Builders, Plaintiff: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Christopher Aaron Rheinheimer, Manatt, Phelps & Phillips, San Francisco; Susan White, Manatt Phelps & Phillips, Los Angeles. For Architectural Glass and Aluminum Co., Inc., a California corporation, plaintiff, counter-defendant: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Brandt Louis Wolkin, David Francis Myers, Jennifer L. Elowsky, Wolkin Curran, San Francisco. For Zurich American Insurance Co., a New York corporation, defendant, cross-claimant, cross-defendant: Blaise S. Curet, Sinnott Puebla Campagne & Curet, APLC, Emeryville. For Old Republic General Insurance Corp., an Illinois corporation, defendant, counter-claimant, third-party plaintiff: John R. Campo, Attorney at Law, Redwood City. For National Union Fire Insurance Co. of Pittsburgh, a Pennsylvania corporation, defendant: Joshua A. Zlotlow, lead attorney, Samuel J. Morris, Herold & Sager, Encinitas. For Liberty Insurance Underwriters Inc., an Illinois corporation, defendant, cross-defendant: Susan Jacqueline Field, lead attorney, Musick, Peeler and Garrett, Los Angeles; Chad A. Westfall, Musick Peeler & Garrett, San Francisco. For Old Republic General Insurance Corp., an Illinois corporation, Zurich American Insurance Co., a New York corporation, cross-defendants: Blaise S. Curet, Sinnott Puebla Campagne & Curet, APLC, Emeryville. For Old Republic General Insurance Corp., an Illinois corporation, cross-claimant: A. Geoffrey Hutchinson, Redwood City; John R. Campo, Attorney at Law, Redwood City, CA. For National Union Fire Insurance Co. of Pittsburgh, a Pennsylvania corporation, cross-defendant: Joshua A. Zlotlow, Samuel J. Morris, Herold & Sager, Encinitas. For Webcor Construction, a California limited partnership, counter-defendant: Amy B. Briggs, lead attorney, Manatt Phelps & Phillips, San Francisco; Susan White, Manatt Phelps & Phillips, Los Angeles. For Motorists Mutual Insurance Company, third-party defendant: James Hugh Wilkins, lead attorney, Wilkins,Drolshagen & Czeshinski, Fresno. For Acuity Mutual Insurance Co., third-party defendant: Alan Edward Swerdlow, lead attorney, Boornazian Jensen & Garthe, Oakland; Kenneth Andrew Calderone, pro hac vice, Hanna, Campbell & Powell, Akron, Ohio.

FC&S Legal Comment

There is a split of authority in the Ninth Circuit as to whether the existence of a coverage territory clause constitutes sufficient contact with the forum to support specific jurisdiction.

The U.S. Court of Appeals for the Ninth Circuit, in Hunt v. Erie Ins. Group , 728 F.2d 1244 (9th Cir. 1984), rejected an assertion that a “substantial connection” for purposes of specific jurisdiction was established by the existence of a nationwide coverage territory clause. There, Linda Jean Hunt was a passenger involved in an automobile accident in Colorado, and made a claim as a third-party beneficiary to the driver's insurance carrier, Erie Insurance Group. The Erie policy included a clause covering accidents occurring anywhere in the United States. After the accident in Colorado, Hunt moved to California to continue her recovery, and brought suit in California against Erie for denying her coverage for medical and rehabilitation expenses. Hunt alleged breach of contract, breach of fiduciary duty, and bad faith. Erie had no other contacts with California and moved for dismissal based on lack of personal jurisdiction. The Ninth Circuit found there was no support for specific jurisdiction based upon the coverage clause alone. “[The insurer's] failure to structure its policy to exclude the possibility of defending a suit wherever an injured claimant requires medical care cannot, in our view, fairly be characterized as an act by which [the insurer] has purposefully availed itself of the privilege of conducting activities in California.”

A few years later, in Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. , 907 F.2d 911 (9th Cir. 1990) (Portage), the Ninth Circuit held that an insurer had shown purposeful availment of the forum where it included a nationwide coverage clause in its policy. The dispute arose from a single vehicle accident that occurred in Montana, and as to which both Farmers and Portage La Prairie were obligated to provide coverage. The driver was covered by her own policy issued by Farmers in Montana, and by the vehicle owner's insurance issued by Portage. Farmers defended and settled the underlying litigation, although it claimed that Portage was the primary insurer, and that Farmers was an “excess” insurer under the circumstances. Farmers subsequently filed an action against Portage for declaratory relief and damages, alleging bad faith and breach of contract for its refusal to reimburse Farmers. The Ninth Circuit reversed a dismissal by the district court, finding that Portage's territorial policy limit included Montana in its scope, and thereby purposefully availed itself of a Montana forum by contracting to indemnify and defend claims there. “[L]itigation requiring the presence of the insurer is not only foreseeable, but it was purposefully contracted for by the insurer.”

More recently, in King v. American Family Mut. Ins , 632 F.3d 570, 578 (9th Cir. 2011), the Ninth Circuit held that there were not sufficient contacts with the forum to find specific jurisdiction over an insurer, even though the accident triggering coverage took place in the forum and the policy at issue included a nationwide coverage clause. King involved a motorcycle accident occurring in Montana. Timothy King and his wife, Gwynne King were insured by the defendant insurance companies; the vehicles involved in the accident were not covered by their policies. Citing Montana case law, Carter v. Miss. Farm Bureau Cas. Ins. , 109 P.3d 735, 742 (Mont. 2005), the court held that the lack of any other contacts with the forum other than the accident and the nationwide coverage clause precluded personal jurisdiction.

The court distinguished Portage, noting that it concerned an indemnity dispute, while King concerned a claim for breach of contract by the insured.

Several subsequent cases in the Ninth Circuit have found that a nationwide coverage clause, without more, was insufficient to establish purposeful availment. Scott, Blane & Darren Recovery v. Auto-Owners Ins., No. 2:14-CV-03675-ODW (C.D. Cal. Aug. 27, 2014) (King “made clear that [the Ninth Circuit's] reasoning in Portage La Prairie applies in indemnity actions, while King applies in duty-to-defend actions brought by the insured”); Dokoozian Constr. v. Exec. Risk Specialty Ins., No. C15-703 MJP (W.D. Wash. July 28, 2015) (“The Ninth Circuit has rejected the notion that nationwide coverage provisions automatically give rise to personal jurisdiction over a defendant in a case where an insured brings breach-of-contract claims against its insurer in a foreign state,” citing King); Hunt v. Auto-Owners Ins., No. 2:15-CV-JCM NJK (D. Nev. June 10, 2015) (“the Ninth Circuit suggested that a nationwide territory clause alone is insufficient to subject defendants to personal jurisdiction over any contractual dispute in any given forum . . . but is limited to cases arising out of defendants' duties to indemnify and defend claims in any state”); cf. Hawthorne v. Mid-Continent Cas., No. C16-1948RSL (W.D. Wash. Apr. 4, 2017) (“Because this is a duty-to-defend case and not a simple coverage action, the court follows [Portage] and finds that the combination of nationwide coverage and the occurrence of an insured event in Washington is sufficient for the exercise of jurisdiction over plaintiff's case”).

One district court in the Ninth Circuit has found, subsequent to King, that an insurer purposely availed itself of the privilege of conducting activities in the forum through its policy's nationwide territorial coverage clause. See Evanston Ins. v. W. Cmty. Ins. , 13 F. Supp. 3d 1064, 1070 (D. Nev. 2014). The district court, citing Portage, stated that if the insurer “had wished to avoid suit in all fora except Idaho, it could have limited the coverage territory to the state of Idaho.” Based on this premise, the court determined that the claim for declaratory relief and equitable contribution “arose from” the insurer's agreement to defend a suit against its insured, and denied the motion to dismiss for lack of personal jurisdiction. The court did not reference King or the cases following it.

Steven A. Meyerowitz is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. As FC&S Legal director, Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.