I. GENERAL LIABILITY

The Thirty-Day Period for Removal Does Not Commence with Service on a Statutory Agent, But Instead When the Defendant Receives the Summons and Complaint

The case Tucci v. The Hartford Financial Services Group, Inc., --- F.Supp.2d ---, 2009 WL 458690 (D.N.J. February 25, 2009), involved a dispute over insurance coverage, which began in state court in New Jersey. Plaintiff served a copy of a summons and complaint on the New Jersey Commissioner of Banking and Insurance ("the Commissioner"), as permitted by Section 17:32-2(c), N.J. Stat. Ann. The Commissioner mailed the summons and complaint to Defendant Twin City Fire Insurance Company. Thirty-five days after the Commissioner was served, but twenty-nine days after the Commissioner mailed the initial pleadings to Defendants, Defendants filed a notice of removal with the Federal Court. Plaintiff filed a motion to remand.

The sole issue before the Court was whether the thirty-day statutory period to seek removal under 28 U.S.C. § 1446(b) commenced when the summons and complaint were served only on a defendant's statutory agent, that being the Commissioner of Banking and Insurance.

The court noted that although there are no published circuit court opinions on the subject, the vast majority of courts to consider this question have held that the thirty-day period for removal does not commence with service on a statutory agent, but instead when the defendant receives the summons and complaint, the rationale being that statutory agents, unlike agents in fact, have both limited purpose and limited power. Therefore, the court held that "in light of the statutory agent's limited authority, . . ." receipt by a statutory agent does not constitute "receipt by the defendant" under Section 1446(b). The court stated, "[t]o find to the contrary would contravene Congress' intent to ensure that defendants know that they are the subject of a suit and as well as the basis for the suit before the removal period begins."

Plaintiff argued that service on a statutory agent should begin the time for removal because this formal service is more uniform and certain. The court noted that "were this true, it would nevertheless be contrary to text of the statute and the intent of Congress to find that uniformity and certainty require a shortening of the period of time which defendants, in reality, have to decide whether to remove a case to federal court." The Court rejected the contention that calculating the time for removal based upon a named defendant's actual receipt would introduce more uncertainty into the matter.

Therefore, the court found that in the present case, there was no dispute that defendants filed their notice of removal within thirty days of receipt of the initial pleadings from the Commissioner. As such, the court denied plaintiff's motion to remand.

II. PROFESSIONAL LIABILITY

Pennsylvania Claims Identified as Contract Claims Still May Require Certificates of Merit if They Depend on Evidence that the Defendant Failed to Meet Professional Standards of Performance.

In Zokaites Contracting Inc. v. Trant Corp., --- A.2d ---, 2009 WL 475289 (Pa. Super. February 26, 2009), Zokaites Contracting Inc. and Woodside Development ("Appellants") appealed from the trial court's order denying in part Appellants' petition to open a judgment of non pros for failing to file a certificate of merit (COM) pursuant to Pa.R.C.P. 1042.3. On appeal, Appellants argued, among other things, that the trial court erred in requiring them to file a COM to support allegations they made in a breach of contract count and that the trial court erred in finding that they failed to proffer a reasonable explanation for failing to file a COM.

In the underlying matter, plaintiff filed a multi-count complaint against defendants concerning the performance of professional engineering services. After the time passed for filing a certificate of merit or moving to extend the time for such filing, plaintiff filed such a motion for extension but this motion was not docketed because Appellants did not have the correct caption on the motion. Consequently, the trial court never ruled on Appellants' motion to extend. Defendants later filed a praecipe for a judgment non pros, which was granted. Plaintiff petitioned to open, which was granted in part, but denied to the extent the complaint alleged a professional negligence count and a count in contract that included claims about such alleged breaches as "design errors."

Appellants first argued that the trial court erred in denying, in part, their petition to open because its breach of contract claims did not require the filing of a COM. Appellants maintained that their breach of contract claims were grounded on the existence of written contracts between the parties and thus, the trial court erred in extending the judgment of non pros to encompass these claims. However, it is the substance of the complaint rather than its form that is the controlling factor to determine whether the claim against a defendant sounds in professional negligence or contract.

The court examined the averments in the complaint to determine whether the action was a professional negligence claim as opposed to another theory of liability. The court held that the allegations in the contract counts that sounded in professional negligence, such as those claiming that defendants "negligently" performed or "improperly designed" certain work and the allegations that would require expert testimony about the standard of acceptable professional care, were properly subject to the certificate of merit requirement. To hold otherwise, the court's decision would permit Appellants to circumvent the mandates of Pa.R.C.P. 1042.3, by simply recasting a negligence claim into a breach of contract claim, even though the averments in support of the contract claim fundamentally question the professional's exercise of due care.

Accordingly, the Superior Court affirmed the decision of the trial court.

III. INSURANCE COVERAGE

Insurance Company Must Indemnify and Pay Defense Costs of Insured in a Civil Rights Lawsuit Stemming from Death of a Police Officer who was Accidentally Shot by a Fellow Officer .

In Scottsdale Insurance Co. v. City of Easton, Slip Copy, 2009 WL 673291 E.D.Pa. March 9, 2009, plaintiff sought a declaratory judgment that it had no obligation to defend or indemnify its insured, the City of Easton, in a civil rights suit brought by the widow of a police officer.

The City of Easton had a Public Entity Insurance Policy from Scottsdale Insurance Company covering law enforcement liability occurrence coverage. It covered losses resulting from law enforcement wrongful acts, which the policy defined as any actual or alleged act, error or omission, neglect or breach of duty by the insured while conducting law enforcement activities.

While this policy was in effect, Officer Matthew Renninger shot and killed a second officer, Jesse E. Sollman. A grand jury investigated the death and concluded Sollman's death was the result of the deficiency of the firearm safety facilities; the absence of appropriate firearm safety standards; the failure of the Easton Police Department command structure to establish and enforce safety standards and procedures; and, the series of negligent actions by Officer Renninger. Sollman's widow filed suit against Renninger, other individual officers, police supervisors, city officials, and the City of Easton. Subsequently, Scottsdale filed this action.

The court considered the language of the policy in question, and concluded the intent of the parties was that Scottsdale would insure the City against any civil rights suit arising from law enforcement activities. The court noted that the underlying case alleged a loss which arose from the "ownership, maintenance or use of premises by you for the purpose of conducting law enforcement activities."

While the policy excluded "injuries arising out of and in the course of employment by the insured," the court noted that the phrase "in the course of employment" is black letter worker's compensation law. As such, the court found that the repetition of worker's compensation language defined the exclusion as permitting suits falling outside of workers' compensation claims. As such, the court held that under the plain language of the policy, the underlying case fell within Scottsdale's obligation to indemnify the City.