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Reifer v. Westport Ins. Corp.

United States Court of Appeals for the Third Circuit

March 25, 2014, Argued; April 29, 2014, Filed

No. 13-2880


 [*131]  VAN ANTWERPEN, Circuit Judge.

Appellant Westport Insurance Corporation ("Westport") appeals the District Court for the Middle District of Pennsylvania's decision declining to exercise jurisdiction over the instant case and its Order dismissing the case without prejudice and remanding it to the Court of Common Pleas of Lackawanna County, Pennsylvania. Reifer v. Westport Ins. Corp., 943 F. Supp. 2d 506, 512 (M.D. Pa. 2013). It also appeals the District Court's denial of its motion for reconsideration. Reifer v. Westport Ins. Corp., No. 4:12-CV-0533, 2013 U.S. Dist. LEXIS 82390, 2013 WL 2650275, at *1 (M.D. Pa. June 12, 2013). For the reasons  [**2] that follow, we will affirm the decisions of the District Court declining jurisdiction and denying reconsideration.


Rox-Ann Reifer's ("Reifer") Complaint avers the following: Reifer suffered a worker's compensation injury during the course of her employment at Intermediate Unit-20 (IU-20) where she provided special education to students. Her injuries  [*132]  prevented her from returning to work, and she retained Donald P. Russo, Esquire ("Russo") out of concern that IU-20 may bring disciplinary proceedings against her. At the time she retained Russo, he carried legal malpractice insurance with Westport and was in full compliance with the Pennsylvania Rules of Professional Conduct as they pertained to insurance coverage. When IU-20 initiated disciplinary proceedings against Reifer, Russo failed to appear at the hearing. When IU-20 terminated her in accord with the hearing master's recommendation, Russo also failed to appeal. Russo then filed a federal lawsuit alleging violation of Reifer's employment rights, which he lost for failure to exhaust her state remedies. Finally, when Reifer sought alternate employment, she asked Russo how to answer an employment application question as  [**3] to whether she had ever been terminated. Russo advised her to answer in the negative. Reifer was terminated and subjected to public discipline for falsely answering the employment application.

On March 18, 2008, Reifer commenced a malpractice claim against Russo in state court by Praecipe for Writ of Summons,1 which was served upon him. At the time of service, Russo carried a "claims-made" policy with Westport, which only covered losses claimed by him during the policy period or within 60 days of the policy's expiration. Despite this, Russo failed to inform Westport of the action. That August, Russo's policy lapsed and he failed to secure a replacement policy. Four months later, on December 29, 2008, Reifer filed a Complaint that was served upon Russo. Russo only then notified Westport of the claim against him.

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751 F.3d 129 *; 2014 U.S. App. LEXIS 8014 **; 2014 WL 1674112

ROX-ANN REIFER, assignee of Donald Russo, Esquire v. WESTPORT INSURANCE CORPORATION, Appellant

Prior History:  [**1] On Appeal from the United States District Court for the Middle District of Pennsylvania. (4-12-cv-00533). District Judge: Honorable Matthew W. Brann.

Reifer v. Westport Ins. Corp., 2013 U.S. Dist. LEXIS 82390 (M.D. Pa., June 12, 2013)Reifer v. Westport Ins. Corp., 943 F. Supp. 2d 506, 2013 U.S. Dist. LEXIS 62035 (M.D. Pa., 2013)


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