Encompass Insurance Co v. Stone Mansion Restaurant Inc, No. 17-1479 (3d Cir. 2018)Annotate this Case
Viviani left Stone Mansion with Hoey. Their vehicle crashed, killing Viviani and seriously injuring Hoey. Hoey sued Viviani’s estate, which tendered the defense to Encompass, which paid Hoey $600,000. Hoey released her claims. Encompass sued Mansion, alleging: it stands in the shoes of the insured estate; Mansion served Viviani alcohol while he was visibly intoxicated; under Pennsylvania’s Dram Shop law, a business that serves alcohol to a visibly intoxicated person is legally responsible for any damage that person might cause; and under the Uniform Contribution Among Tortfeasors Act (UCATA).
In email correspondence, Mansion’s counsel informed Encompass that “I will be authorized to accept service.” Encompass sent counsel a copy of the filed complaint and an acceptance form via email. Counsel replied, “I will hold the acceptance ... [for] the docket n[umber].” That same day, Encompass provided the docket number. Mansion later claimed that, because it had not been properly served, it could remove the case to federal court. Encompass sought remand. The court concluded that the forum defendant rule precludes removal only if any of the parties in interest properly joined and served as defendants is a citizen of the state and that counsel did not accept service. The court then dismissed: The Dram Shop law indicates that a licensee is liable only to third persons (Hoey), for damages inflicted upon the third person (off premises) by the licensee's customer when the licensee furnishes that customer with alcohol when he was visibly intoxicated. … Encompass is acting as if it were Viviani in order to recover under [UCATA]. Because there is no potential cognizable Dram Shop claim between Viviani/Encompass and Mansion, there is no contribution claim.
The Third Circuit upheld removal of the case, rejecting an argument that it is “inconceivable” that Congress intended the rule to permit an in-state defendant to remove an action by delaying service of process. Stone Mansion’s conduct did not preclude removal. The court reversed the dismissal. Encompass does not argue that it is entitled to recovery in tort against Stone Mansion but presents a distinct claim for contribution under the UCATA. Pennsylvania’s Dram Shop law does not prohibit this manner of recovery.