United States Court of Appeals, District of Columbia Circuit
Submitted September 18, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00380)
Rehearing Glenn H. Silver was on the briefs for appellants.
Erik B. Lawson entered an appearance.
D. Bogris was on the brief for appellee R.W. Home Services,
Inc., d/b/a Gale Force Cleaning and Restoration.
Charles B. Peoples was on the brief for appellee
Windsor-Mount Joy Mutual Insurance Co.
Before: Griffith and Katsas, [*] Circuit Judges, and Sentelle,
Senior Circuit Judge.
Griffith, Circuit Judge
issued our initial opinion in this case on July 31, 2018.
Because of a concern with the disposition, we vacated that
opinion and sua sponte ordered rehearing and
supplemental briefing. We now substitute the following
opinion in its place.
Katopothis and Francesca Dahlgren (the "Dahlgrens")
own a beach home that flooded in a plumbing accident while
they were away. They sued their insurance company for breach
of contract when it refused to cover the damage. They also
sued their cleaning-and-restoration company for failing to
adequately remedy the damage and prevent mold. The district
court granted summary judgment in favor of the insurance
company based on the plain language of the Dahlgrens'
insurance policy and transferred the claims against the
cleaning-and-restoration company to the district court in
Delaware for lack of personal jurisdiction. We lack
jurisdiction to review the transfer order but affirm the
grant of summary judgment.
2000, the Dahlgrens, who reside in the District of Columbia,
purchased a beach home in Rehoboth Beach, Delaware, where
they spend most of their weekends. At all times relevant to
this litigation, the house was a second residence and
remained fully furnished with the accessories of daily life,
such as furniture, clothes, food, toiletries, and medicine.
When not at their beach home, the Dahlgrens routinely left
the heat on to prevent the pipes from freezing and asked a
friend to check on the house and retrieve the mail. They did
not, however, shut off the water supply.
February 2013, Ms. Dahlgren returned to the beach home to
find two inches of standing water throughout the main level
and additional water "gushing" from the ceiling
overhead. The Dahlgrens had been away for ten days, and, in
their absence, a pressurized hot water pipe in the upstairs
bathroom had separated at the joint and flooded the house.
Dahlgrens notified their insurance company, Windsor-Mount Joy
Mutual Insurance Co. ("Windsor-Mount"), about the
flooding. They also contracted with R.W. Home Services, Inc.,
doing business as Gale Force Cleaning and Restoration
("Gale Force"), to remedy the damage and prevent
mold. According to the Dahlgrens, Gale Force was negligent in
its clean-up effort and mold spread through the house, so the
Dahlgrens eventually decided to tear it down and build a new
Dahlgrens timely filed an insurance claim with Windsor-Mount
to cover the damage from the accident. The insurance company
denied the claim because, while they were away, the Dahlgrens
had failed to shut off the water where it entered the house.
Dahlgrens sued Windsor-Mount for breach of contract and
alleged $800, 000 in damages. They filed suit in the Superior
Court of the District of Columbia, but Windsor-Mount, a
Pennsylvania corporation with its principal place of business
in Pennsylvania, invoked federal diversity jurisdiction and
removed the case to the district court. See 28
U.S.C. §§ 1332(a), 1441(a). Windsor-Mount impleaded
Gale Force as a third-party defendant on the theory that if
Windsor-Mount was liable to the Dahlgrens, the extent of its
liability turned on Gale Force's conduct. The Dahlgrens
amended their complaint to add claims against Gale Force as
well for breach of contract, negligence, negligent
misrepresentation, and violations of the Delaware Consumer
Fraud Act, 6 Del. Code §§ 2511-27. The Dahlgrens
and Windsor-Mount then filed cross-motions for summary
judgment, and Gale Force moved to be dismissed from the case
for lack of personal jurisdiction.
district court determined that the Dahlgrens could not
recover under the clear terms of their insurance policy and
granted summary judgment against them on that issue. See
Katopothis v. Windsor-Mount Joy Mut. Ins. Co., 211
F.Supp.3d 1, 13-21 (D.D.C. 2016). While the Dahlgrens argued
that Delaware law should apply and Windsor-Mount argued for
District of Columbia law, the district court was not put to
the choice because the insurance claim failed under the law
of both jurisdictions. See id. at 13-14; see
also City of Harper Woods Emps.' Ret. Sys. v. Olver,
589 F.3d 1292, 1298 (D.C. Cir. 2009) ("A federal court
sitting in diversity applies the conflict of law rules of the
forum in which it sits." (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)));
USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032
(D.C. 2008) ("A conflict of laws does not exist when the
laws of the different jurisdictions are identical or would
produce the identical result on the facts presented.").
district court also concluded that the Dahlgrens did not
allege that Gale Force, a Delaware corporation with its
principal place of business in Delaware, had sufficient
contacts with the District of Columbia to establish personal
jurisdiction. The district court accordingly did not resolve
the Dahlgrens' claims against Gale Force, but instead
transferred them to the district court in Delaware.
Katopothis, 211 F.Supp.3d at 21-27; see 28
U.S.C § 1406(a); Sinclair v. Kleindienst, 711
F.2d 291, 293-94 (D.C. Cir. 1983) (construing 28 U.S.C.
§ 1406(a) to authorize transfer of venue for lack of
district court issued its order on September 26, 2016. On
October 7, 2016, the clerk transferred the case file to the
district court in Delaware, where the Dahlgrens' claims
against Gale Force have been stayed pending the outcome of
this litigation. The Dahlgrens filed their notice of appeal
to this court on October 11, 2016. The Dahlgrens argue that
the district court below ...