Nicholas Malfitano Jun. 27, 2015, 1:16pm

PHILADELPHIA – A federal judge has decreed a lawsuit against a home and auto insurance company will not be transferred elsewhere in the state, and remain in his district.

Senior Judge Ronald L. Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania, ruled June 10 that Harrisburg resident Delaine Andrews’ litigation against Encompass Home & Auto Insurance Company would remain in that court, and denied her motion to transfer the case to the U.S. District Court for the Middle District of Pennsylvania.

Andrews’ lawsuit is in connection with a motor vehicle accident she sustained while visiting Philadelphia on Jan. 1, 2011, caused by another driver who did not have automobile insurance. Andrews subsequently submitted a claim for underinsured motorist benefits to Encompass, pursuant to the policy it issued to her.

Andrews alleges Encompass “wrongfully denied, failed, and/or refused to pay underinsured motorist benefits under the terms and conditions of the policy and the Pennsylvania Motor Vehicle Financial Responsibility Law.”

Andrews filed suit against Encompass on Dec. 16 in the Philadelphia County Court of Common Pleas, charging it with breach of contract. As it is headquartered in Northbrook, Ill., Encompass removed the case to federal court on Jan. 21.

At around the same time, on Dec. 29, Andrews filed a separate breach of contract lawsuit against both Encompass & Progressive Specialty Insurance Company, stemming from a separate and unrelated motor vehicle accident. That case was both removed to federal court and transferred to the U.S. District Court for the Middle District of Pennsylvania on March 17. That transfer of venue was caused by a clause in Progressive’s insurance policy with Andrews, allowing it the ability to select venue for cases brought against it.

As a result, Andrews filed to transfer the action in question the U.S. District Court for the Middle District of Pennsylvania on May 5, which the defendant opposed.

At that time, Buckwalter examined the case and ultimately ruled it would remain in the U.S. District Court for the Eastern District of Pennsylvania. Buckwalter explained a plaintiff’s preference for venue is something that “should not be disturbed lightly.”

“Plaintiff lives in Harrisburg, Pennsylvania, but originally chose to file this case in the Philadelphia [County] Court of Common Pleas. Defendant subsequently removed the case to the Eastern District of Pennsylvania. The underlying automobile accident occurred in Philadelphia, but plaintiff’s medical treatment – and presumably communications between plaintiff and defendant concerning her insurance claim – occurred in Harrisburg,” Buckwalter said.

“Nonetheless, plaintiff filed her breach of contract claim in Philadelphia rather than in Harrisburg. Plaintiff also filed her other action against defendant and Progressive in Philadelphia, despite the fact that the underlying accident in that case occurred in Harrisburg. Thus, plaintiff originally demonstrated a preference for a forum in Philadelphia,” Buckwalter added.

Buckwalter also gave separate consideration to the defendant’s venue preference.

“[The] defendant’s primary argument for keeping this case in the Eastern District of Pennsylvania is that, because the case is already in a court of competent jurisdiction as required by language in the policy, there is no valid basis for a transfer to another forum,” Buckwalter said.

“Thus, according to defendant, the policy language has been satisfied and there is no need to transfer the case to a different forum. Moreover, this case is currently scheduled for arbitration on July 29, 2015, at the federal courthouse for the Eastern District of Pennsylvania. Thus, defendant’s preference weighs against transfer, particularly because defendant is not the party seeking to transfer the case to a different venue.”

After weighing the various factors involved, Buckwalter decided the case should remain in its present location.

“The Eastern District of Pennsylvania is an appropriate venue for this case. Plaintiff originally chose this forum, and seeks to transfer this case to a different forum for reasons related to a different case. Although defendant is a party in both of plaintiff’s cases, it prefers that this case not be transferred out of the Eastern District of Pennsylvania. In addition, this case is already scheduled for arbitration in the Eastern District of Pennsylvania,” Buckwalter explained.

“Finally, while it would be more convenient for plaintiff if the case were transferred to the Middle District of Pennsylvania, transferring this case would not, from a public interest perspective, make the case easier, more expedient, or less expensive. Accordingly, the Court will deny plaintiff’s motion to transfer this case to the Middle District of Pennsylvania,” Buckwalter concluded.

The plaintiff is seeking an amount in excess of $50,000, along with court costs, interest and other such relief as the Court deems just.

The plaintiff is represented by Jeffrey C. Wong of Cevallos & Wong, in Newtown.

The defendants are represented by Kevin R. McNulty and Kelly J. Fox of Gerolamo McNulty Divis & Lewbart, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00268

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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