By Robert S. Campbell, Esq. and Valerie E. Taylor, Esq.
In Maryland, out-of-state insurers who offer insurance in Maryland are subject to receiving service of process through service upon the Maryland Insurance Administration (“MIA”) as its “statutory agent.” See Md. Code Ann., Ins. § 4-107(a). Since service is being rendered through a third-party, receipt of service packet by the insurer may be delayed due to mailing or other issues. Often, statutory service can create questions as to when an insurer may timely remove a case to federal court or as to when the proverbial clock starts for removal. The removal statute, 28 U.S.C. § 1446, provides that notice of removal shall be filed within thirty days after receipt of or service of the initial pleadings. However, upon statutory service, it is not clear exactly at what point the removal time starts to run, whether upon by “receipt” by the MIA or when service finally reaches the insurer’s hands.
In an attempt to resolve the question, the federal courts in Maryland and the majority of courts have held that, when service is effectuated upon a statutory agent, the time for removal does not begin to run until the insurer actually receives “notice” of the lawsuit, and not merely when service is made upon the MIA. See Gordon v. Hartford Fire Ins. Co., 105 Fed. Appx. 476, 480 (4th Cir. 2004). However, to further expand on this, the Fourth Circuit in Elliott v. Am. States Ins. Co., 883 F.3d 384, 391-92 (4th Cir. 2018), recognized that the commencement of the thirty-day removal period contains two parts – “receipt of a copy of the complaint and formal service.” Thus, service upon the statutory agent, the MIA in Maryland, does not trigger the removal period because the insurer presumably does not yet have notice. See Goodloe v. James River Ins. Co., No. CV DKC-21-1318, 2021 WL 3406522, at 2* (D. Md. Aug 4, 2021). This is considered an exception to the general rule that time starts upon service, and the time runs from the defendant’s actual notice of the action, through receipt or otherwise. See Elliott, supra. However, service on the MIA and notice to the insurer could happen simultaneously, and the actual factual circumstances may not provide for additional time for removal. See Goodloe, supra.
The exception for “notice” may provide an insurer with a few extra days until the removal period begins to run. Since the timing of removal is a recurring issue, consult with an attorney to make sure your case is removed in a timely manner.
Robert Campbell has over 20 years of experience as a general litigator. He has an active litigation practice primarily in complex commercial and general litigation matters in Maryland state and federal courts as well as other jurisdictions in which he is admitted pro hac vice. He has extensive appellate, arbitration and trial experience and notably has a long and successful motions track record including successful motions for summary judgment and dismissal for his clients. As part of his practice, Mr. Campbell is assigned to represent insureds by national insurance carriers in premises liability, tort defense, automobile and trucking cases, and government liability matters. He has participated in the prosecution and defense of claims against Maryland insurance producers. Mr. Campbell can be reached at 410-769-6140 and rcampbell@pklaw.com.
Valerie Taylor is an Associate in the firm’s General Litigation Group. Valerie graduated cum laude from the University of Baltimore School of Law in 2019. After graduating from law school, Valerie clerked for the Honorable Dennis M. Robinson, Jr. at the Baltimore County Circuit Court where she performed extensive legal research and drafted opinions and orders for family, civil, and criminal cases, with a focus on the criminal law docket. Valerie can be reached at 410-339-6771 and vtaylor@pklaw.com.
