In any fight, the party who chooses the battleground often gains a crucial advantage. This maxim holds true for insurance coverage disputes: the choice of where a lawsuit is litigated, otherwise known as the forum, often shapes the entire course of the action. Policyholders are therefore well-advised to seize the initiative and file a coverage action in the forum of their choosing as soon it becomes clear that a coverage suit is unavoidable. In some instances, though, insurers win the race to the courthouse and file declaratory judgment suits in their preferred forum. Policyholders are then faced with a number of options: for instance, they may argue that the insurer breached the duty of good faith by pre-emptively filing the lawsuit, or that the forum should apply the law of a different state rather than its own. 

Another possible argument is based on the doctrine of forum non conveniens: that the insurer’s chosen forum should be rejected because it is simply inconvenient or inappropriate to try the case there. Forum non conveniens is a long-established principle which allows a court to decline to hear a case, even if the case and the parties are properly subject to the court’s jurisdiction. A successful forum non conveniens argument will result in a dismissal of the case in the plaintiff’s chosen forum; in some circumstances, the dismissal is conditioned on the defendant consenting to the jurisdiction of another forum. 

Generally, the plaintiff’s choice of forum is afforded a degree of deference because the court may reasonably assume the chosen forum is convenient for the plaintiff. However, when the plaintiff chooses a forum other than its home forum, that assumption becomes less reasonable and the plaintiff’s choice receives less deference. In the seminal case of Gulf Oil Corp. v. Gilbert, the United States Supreme Court separated facts relevant to the forum non conveniens analysis into two categories, which are known as private and public interest factors. Private interests relate to potential difficulties faced by the litigants themselves due to the plaintiff’s chosen forum, while public interests relate to the burdens the case imposes on the court and the public. No single private or public interest is dispositive, and courts have great discretion when confronting forum non conveniens arguments. 

Private interests include all “practical problems that make trial of a case easy, expeditious, and inexpensive.” Commonly considered private interests include whether relevant witnesses, documents, or other sources of evidence are located in the forum, and if not, whether it is feasible to bring them to the forum or compel their attendance at trial, and whether a final judgment obtained in the chosen forum will be enforceable. For instance, one Ohio court confronted with a coverage dispute reasoned that the action was better suited for trial in West Virginia because that was where the major events of the case had taken place and where evidence was more likely to be found: the injury underlying the dispute had occurred there, the policyholder was located there, and “all of the transactions of direct relevance” to the complaint occurred there.In another coverage case, an Ohio court affirmed a forum non conveniens dismissal in favor of an action filed by the policyholder in Illinois because that was where the policyholder’s “insurance department employees and insurance brokers” had been located during the period in which the policies in dispute were issued. The court reasoned that, since the case was “solely a contract dispute,” the location of those witnesses was of “greater concern than the location of the insured sites.” 

Public interests include whether the court is already burdened with a significant case load, especially where those cases bear a greater relationship to the forum than the case in dispute, and whether it would be fair to make citizens of the forum serve on a jury for a case which bears no relation to their home. It also serves the public interest to have cases with local implications be decided locally, not in far-away jurisdictions with no interest or stake in the outcome. Finally, a crucial public-interest factor is whether the chosen forum is familiar with the law that will be applied in the case. Many insurance policies contain choice-of-law provisions; therefore, to the extent the policy at issue calls for application of the substantive law of a different forum than the forum chosen by the insurer, this factor could be of particular utility to policyholders. 

Another common factor that courts consider is whether other litigation involving the same subject matter is already ongoing. If a policyholder can point to an action in another forum, particularly one that is more comprehensive than the action the insurer is attempting to bring, the court will be more likely to grant a forum non conveniens dismissal. For instance, in Travelers Cas. & Sur. Co. v. Cincinnati Gas & Elec. Co., the trial court granted the policyholder’s motion to dismiss for forum non conveniens in large part because a more comprehensive case was pending in Indiana. The Indiana case involved twenty-two insurers and four sites, including only one in Ohio, compared to the Ohio case’s one insurer and one site. The Ohio appellate court affirmed the dismissal, reasoning that the “majority of claims originat[ed] in Indiana” and that “the issue of insurance coverage for the Ohio plant was a small part of the controversy.” 

It is always preferable for policyholders to choose the forum of any coverage dispute. In those cases where insurers file first in an unfavorable forum, however, motions to dismiss for forum non conveniens can play an important role in changing the terms of engagement in policyholders’ favor.