Milmar Food Group v. Applied Underwriters, Inc.

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Milmar Food Group v. Applied Underwriters, Inc.

Additional Case Names
9:00am WEBEX
Case Number
Court Number
Call Date
December 9, 2020
Case Time
9:00 AM
Case Summary

A-20-0042, Milmar Food Group et al. v. Applied Underwriters et al. (appellant)

Douglas County, District Court, Judge Duane C. Dougherty

Attorney for Appellant: Jeffrey A. Silver

Attorney for Appellee: Kristopher J. Covi (McGrath North Mullin & Kratz, PC, LLO)

Civil Action: Forum Non Conveniens

Action Taken by Trial Court: Milmar (affiliated New York corporations) initially filed a lawsuit against Applied Underwriters in New York alleging claims based on a workers’ compensation reinsurance participation agreement (RPA) that Milmar asserted violated New York insurance law. A New York court ultimately determined that the RPA’s Nebraska forum selection clause was enforceable. Accordingly, the New York court dismissed Milmar’s claims without prejudice and Milmar was granted leave to recommence its action in Nebraska.   

Milmar subsequently filed an action against Applied Underwriters in the Douglas County District Court alleging several claims based on the RPA that Milmar asserted violated New York insurance law. Applied Underwriters filed a motion to dismiss Milmar’s complaint pursuant to Neb. Ct. R. Pldg.  § 6-1112(b)(6), alleging that Milmar failed to state a claim upon which relief can be granted. The district court did not get to the merits of Applied Underwriters’ § 6-1112(b)(6) motion to dismiss. Instead, the district court, sua sponte, dismissed Milmar’s action without prejudice, citing the doctrine of forum non conveniens, and gave Milmar leave to file its action in New York.

Assignments of Error on Appeal: Applied Underwriters assigns that the district court: (1) erred when it dismissed the complaint sua sponte on forum non conveniens grounds because (a) Milmar’s claims were dismissed by a New York court and therefore Milmar does not have an appropriate alternative forum as required for dismissal on forum non conveniens grounds, (b) the district court was precluded from relitigating the issue of whether Nebraska was an appropriate forum, and (c) the district court failed to give full faith and credit to the New York court’s judgment; and (2) incorrectly applied the relevant forum non conveniens factors in determining that dismissal was appropriate solely on the fact that the Nebraska trial court would have to apply New York insurance law to decide the merits of the parties’ dispute.

Case Location
Court Type
District Court
Schedule Code
Panel Text
Bishop, Arterburn, and Welch, Judges