The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, United States District Judge
Schmid Laboratories, a manufacturer and distributor of an intra-uterine (IUD) birth control device which has given rise to a spate of lawsuits, brought this breach of contract action against two of its insurance companies, Hartford and Centaur. Plaintiff claims that the insurers breached their contractual duty to defend it against a series of tort actions brought by women who allegedly were injured using Schmid's IUD. Currently pending before the Court are a number of motions,
including a motion by both defendants to transfer this action to the Southern District of New York. For the reasons stated below, the Court grants the motion to transfer, and it necessarily leaves resolution of the remaining motions to the transferee court.
The plaintiff is a New Jersey corporation with its principal place of business in New Jersey, roughly 15 miles from New York City. From approximately 1970 to 1984, Schmid manufactured and sold the Saf-T-Coil, an IUD. Schmid has been sued by a number of women
who allege serious bodily injury as a result of using the Saf-T-Coil. These plaintiffs have alleged that at some time between 1970 and 1984, they had a Saf-T-Coil inserted and eventually suffered resulting bodily injury.
Schmid was insured by 15 different insurance companies during the 1970-1984 period, including both defendants. Hartford insured Schmid from April 1971 to April 1975, and Centaur insured Schmid from April 1983 to April 1984. Both insurance contracts contain a standard "duty to defend" clause which requires the insurance company to defend its insured against any lawsuit seeking damages for bodily injury within the insurance policy's coverage.
This lawsuit is confined to the issue of whether these insurance carriers breached their duty to defend Schmid when they refused the tender of defense from Schmid on the underlying tort claims. The resolution of this issue depends on a determination of when the duty to defend is triggered. Under the policy terms, the duty is triggered for bodily injuries incurred during the policy period. In claims alleging bodily injuries which have resulted from exposure to a harmful product over an extended period of time, such as IUDs or asbestos,
the question of when the bodily injury occurred within the meaning of the policy becomes very complex.
Defendants argue that this action should be transferred to the Southern District of New York under 28 U.S.C. § 1404(a). A District Court may transfer an action to any other district where it might have been brought originally if the transfer would serve the convenience of the parties and witnesses and is in the interest of justice.
In considering the merits of a transfer motion, the Court may consider factors subsumed by purpose of the statute as well as the factors enumerated in section 1404(a). SEC v. Page Airways, 464 F. Supp. 461, 463 (D.D.C. 1978).
Defendants argue that this case should be transferred for two reasons. First, they contend that neither the underlying tort actions nor the contract action in the case at bar provide any factual nexus with the District of Columbia, and that it would therefore be inconvenient to try the case in the District of Columbia as well as to be expensive for all litigants. Second, defendants argue that plaintiff engaged in blatant forum shopping by filing suit in the District of Columbia and that the interest of justice would be ill-served by allowing it to benefit from such activity.
As noted, defendants' first point is that the District of Columbia is an inappropriate forum because none of the underlying tort actions were brought here; no part of the insurance contracts at issue were negotiated, entered into, or performed here; none of Schmid's insurance companies are incorporated or maintain head offices here;
and none of the witnesses or records are located here. Plaintiff responds that since this case is national in scope, there is no one "appropriate" forum, and that New York is no more convenient a forum than the District of Columbia. Consequently, Schmid argues, plaintiff's choice of forum is entitled to substantial weight and should not be disturbed by the Court.
The Court finds that, on the bases enumerated above, the defendants have made a showing that the case has a closer factual relationship with New York than it does with the District of Columbia. If that factor were the only consideration in a section 1404(a) analysis, however, that showing would not alone justify transferring the case to New York because the nationwide scope of the case reduces somewhat the importance of those factual considerations.
However, the Court's inquiry does not end there.
Defendants' second and much more persuasive argument is that transfer is warranted in the interest of justice because Schmid engaged in forum shopping in choosing to file this lawsuit in the District of Columbia. Defendants contend that Schmid filed the lawsuit in the District of Columbia only in order to benefit from this Circuit's ruling in Keene Corporation v. Insurance Company of North America, 215 U.S. App. D.C. 156, 667 F.2d 1034 (D.C. Cir. 1981). That case, involving a very similar contractual dispute between an insured and its insurer over the duty to defend in underlying tort claims arising from asbestos exposure, held that the duty to defend in cases involving extended exposure injuries is extremely broad.
But the courts in ...