Appeal from the Superior Court of the District of Columbia. (CA-5549-03). (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before SCHWELB and REID, Associate Judges, and FERREN, Senior Judge.
Appellant Patricia Lynn Hawkins, individually and on behalf of a minor, Syrita Hawkins, filed an action for declaratory judgment against appellee, W.R. Berkley Corporation. Hawkins claimed that the lead paint exclusion in a general liability insurance policy issued to her landlord, Albert Goins,*fn1 by a wholly-owned subsidiary of Berkley (Fireman's Insurance Company of Washington, D.C.) was void as against public policy.*fn2 The trial court granted Berkley's motion for summary judgment, and Hawkins appealed.*fn3
The trial court had not ruled on Berkley's earlier motion to dismiss for lack of personal jurisdiction over Berkley. Rather, the court deferred consideration of jurisdiction and ruled for Berkley on the merits. It is unclear from the record whether the court had personal jurisdiction -- either on the facts, or because Berkley waived its jurisdictional argument by going forward to defend the lawsuit. Accordingly, we must vacate the order granting summary judgment and remand the case to the trial court for such a determination. A merits ruling was inappropriate absent a preliminary ruling that the court had jurisdiction to enter a judgment.
In its Motion to Dismiss or for Summary Judgment in August 2003, Berkley argued that it is merely the holding company of Fireman's; that it is incorporated in Delaware and has its principal place of business in Greenwich, Connecticut; that it has never qualified to do business in the District of Columbia;*fn4 that it does not have an office or mailing address in the District of Columbia; and that it has not had any contact within the District of Columbia. In October 2003, the trial court denied Berkley's motion to dismiss and held in abeyance the determination of personal jurisdiction pending more discovery on the issue. In March 2004, Berkley filed its answer to the complaint and again contended that the trial court lacked personal jurisdiction.
In July 2004, Berkley filed a second Motion for Summary Judgment and claimed among other things that the trial court lacked personal jurisdiction. In response, Hawkins not only filed her opposition to the summary judgment motion but also filed a Motion to Compel Discovery contending that Berkley had not answered a supplemental interrogatory sent to Berkley in April 2004 regarding the factual basis for Berkley's jurisdictional contention. In this motion, Hawkins argued that she could not properly respond to the pending motion for summary judgment without Berkley's response to her supplemental interrogatory. In August 2004, Berkley filed its opposition to the motion to compel and attached all of its responses to Hawkins' requests for discovery. In response to Hawkins' request for "All documents supporting the contention that the Superior Court has no personal jurisdiction over Defendant," Berkley stated:
As indicated in the Affidavit appended hereto, W.R. Berkley Corporation is a holding company incorporated in the State of Delaware. Berkley's corporate headquarters are located in Greenwich, Connecticut. W.R. Berkley Corporation is not an insurance company, nor does it have any office or other business location in the District of Columbia.
In the affidavit attached to this response, Robert P. Cole, the Senior Vice President of Regional Operations for Berkley, simply affirmed what is stated above.
The trial court denied Hawkins' motion to compel as moot and granted summary judgment in favor of Berkley. The court relied on our decision in Redmond v. State Farm Ins. Co., 728 A.2d 1202 (D.C. 1999) -- a decision that did not consider the public policy argument advanced by Hawkins. The court thus disposed of the case without addressing whether Berkley was a proper defendant, or whether the court had personal jurisdiction over Berkley.
On appeal, Berkley expresses its jurisdictional objection as part of its contention that Hawkins had brought her claim for declaratory judgment against the wrong party. As a result, Berkley does not address the issue of personal jurisdiction separately from that contention; Berkley simply repeats that it is a holding company and that Fireman's -- the insurer -- is a wholly owned subsidiary. Nor does Hawkins address on appeal the issue of personal jurisdiction; she argues only the merits of her case.
From the record, it is unclear whether the trial court has personal jurisdiction over Berkley. See Leichtman v. Koons, 527 A.2d 745, 747 (D.C. 1987) (reversing summary judgment for plaintiff because "genuine factual dispute existed"as to whether trial court had personal jurisdiction over defendant). The trial court held that issue in abeyance in its order denying Berkley's motion to dismiss and never revisited the issue. The record does not contain evidence sufficient for this court to rule as a matter of law on whether personal jurisdiction over Berkley can be found under the District's Long Arm Statute,*fn5 or whether ...