OPINION
STATEMENT OF THE CASE
Recticel Foam Corporation (“RFC”) and its employees Jim Van Hooser, O.E. Fox, Eldon Hall, Chet Meyers and Steve Murphy (collectively, “Recticel”) were the subject of legal proceedings associated with waste handling practices at Tennessee manufacturing plants once owned by RFC. Recticel initiated this action against certain insurers, including Employers Insurance of Wausau (“Wausau”), to establish insurance coverage for its alleged environmental contamination. Wausau brings this interlocutory appeal from the denial of its motion to dismiss Recticel’s complaint on grounds of forum non conveniens and from the grant of partial summary judgment in favor of Recticel on claims that Wausau owes duties to defend and indemnify Recticel.
We affirm in part, reverse in part and remand. 1
ISSUES
Wausau raises multiple issues which we consolidate and restate as:
1. Whether the trial court abused its discretion when it denied Wausau’s motion to dismiss for forum non conveniens.
2. Whether genuine issues of material fact preclude summary judgment on Wau-sau’s duty to defend the legal proceedings initiated against Recticel.
3. Whether genuine issues of material fact preclude summary judgment on Wau-sau’s duty to pay all present and future “defense costs.”
4. Whether genuine issues of material fact preclude summary judgment on the propriety of invoking the equitable doctrine of estoppel to prevent Wausau from raising policy defenses.
FACTUAL AND PROCEDURAL HISTORY
RFC, a Delaware, corporation, began its operations in 1979 with the acquisition of two manufacturers of polyurethane foam. From 1983 to 1990, RFC was headquartered in LaPorte, Indiana, the site of a core manufacturing center, after which the corporation transferred operational responsibility for its manufacturing plants to Foamex, L.P. (“Foamex”), a newly formed limited partnership.
RFC purchased primary and excess comprehensive general liability policies from Wausau, a Wisconsin corporation, for consecutive periods between August 1, 1981, and June 30, 1987. In 1991, the Tennessee Department of Environment and Conservation (“TDEC”) sent Foamex a formal “Notice of Violation” letter stating that the agency had been conducting an investigation into allegations that haz
Meanwhile, persons residing near the Cansler Farm filed two suits against RFC in Tennessee state courts, Foshie v. Cansler and Cobble v. Cansler. Each complaint alleged damages resulting from improper disposal of RFC materials at the Cansler Farm. The Foshie complaint added the RFC employees named as individual plaintiffs in this action as defendants. Wausau and RFC executed two additional non-waiver agreements in which Wausau agreed to participate in the defense of the Foshie and Cobble lawsuits as if the policies are applicable. In all three non-waiver agreements, Wausau reserved the right to “enforce all rights and obligations” against RFC. Wausau did not assume Recticel’s defense directly. Rather, Recticel assembled a defense team and then tendered invoices for “defense costs” to Wausau.
In October of 1994, Wausau filed a declaratory judgment action in the United States District Court for the Eastern District of Tennessee. Recticel moved to dismiss that case and, on January 4, 1995, filed the present action against Wausau and other insurance carriers in the Marion Superior Court. Recticel asserted that Wausau had refused to pay all but a small portion of the defense costs submitted. In Counts I and II, Recticel averred that Wausau breached its duty to defend under the non-waiver agreements and the comprehensive general liability policies, respectively. Count III alleged a breach of the duty of good faith and fair dealing and, in Count IV, Recticel sought indemnification under the Wausau policies. In a separate count, Recticel sought recovery from other insurance carriers.
Wausau moved to dismiss this action on grounds of
forum non conveniens.
While that motion was pending, the Tennessee federal court dismissed Wausau’s declaratory judgment action on jurisdictional grounds. Wausau then filed a third suit in a Tennessee state court.
2
Meanwhile, Recticel moved for partial summary judgment in the Marion Superior Court seeking an order (1) directing Wausau to pay Recticel’s past and future defense costs in the TDEC,
Foshie
and
Cobble
matters under both the non-waiver agreements and the insurance policies, and (2) estopping Wausau from asserting policy defenses to avoid its duties to defend and indemnify Recticel. Wausau did not file any “designation of material facts” or request additional discovery but, instead, responded with a memorandum of law and a two-page affidavit with five attachments.
3
Follow
b. Recticel shall recover from Wausau a judgment in the amount of $1,562,-419.43, plus defense costs incurred by Recticel from June 1995 to date;
c. Wausau shall pay future costs of defense of Recticel in the Cansler Farm TDEC [Notice of Violation], Foshie, and Cobble actions as they are incurred; and
d. Wausau is estopped from raising any policy defenses against defense or indemnification obligations to these underlying actions.
Record at 1852.
Approximately one month after the judgment was entered, Wausau filed its answer and counterclaims together with a motion to correct error and voluminous additional evidentiary material. The motion to correct error was deemed denied by operation of law. 4 Wausau initiated separate appeals from the January 6, 1997 judgment and from the denial of its motion to correct error. This court consolidated the appeals.
Issue One: Forum non Conveniens
Wausau first contends that the court erred when it denied Wausau’s motion to dismiss Recticel’s complaint on the grounds of forum non conveniens. 5 Indiana Trial Rule 4.4(C), (D) and (E) govern forum non conveniens determinations. Trial Rule 4.4(C) provides:
Jurisdiction under this rule is subject to the power of the court to order the litigation to be held elsewhere under such reasonable conditions as the court in its discretion may determine to be just.
In the exercise of that discretion the court may appropriately consider such factors as:
(1) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
(2) Convenience to the parties and witnesses of the trial in this state [and] in any alternative forum;
(3) Differences in conflict of law rules applicable in this state and in the alternative forum; or
(4) Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
The purpose of Trial Rule 4.4(C) is to permit a case to be litigated in another state upon a showing that litigation in Indiana is so inconvenient that substantial injustice is likely to result.
Freemond v. Somma,
Here, Recticel chose to litigate its claim in Indiana, and that choice should be given great weight.
Euler v. Seymour Nat’l Bank,
During the relevant policy periods, RFC was headquartered in Indiana where a significant portion of its manufacturing operations was located. Indiana has an interest in protecting its insureds. Although Tennessee has an interest in interpreting it own laws, in this case, Wausau argues for application of New York law. Tennessee has no more stake in construing New York law than does Indiana.
In addition, although the conduct that gave rise to the TDEC,
Foshie
and
Cobble
actions occurred in Tennessee, this case involves insurance coverage, i.e., Wausau’s duties to defend and indemnify Recticel. Resolution of those issues is largely a matter of interpreting written contracts, which is generally a question of law.
Barga v. Indiana Farmers Mut. Ins. Group, Inc.,
Still, Wausau insists that it will be prejudiced by its inability to compel Tennessee witnesses to testify in Indiana. The availability of compulsory process for attendance of unwilling witnesses is a valid consideration, although not dispositive.
See Drexel Burnham Lambert, Inc. v. Merchants Inv. Counseling, Inc.,
Although litigation in Indiana could be more inconvenient and expensive, that is often the circumstance where a litigant is a corporation conducting business nationally.
See Killearn Properties,
In reviewing discretionary orders, we affirm if there is any rational basis for the trial court’s decision.
Drexel,
In addition, while the parties on appeal cite only to Rule 4.4(C), Indiana Trial Rule 4.4(D) applies directly to this multi-party litigation. That Rule provides:
No stay or dismissal shall be granted due to a finding of forum non conveniens until all properly joined defendants file with the clerk of the court a written stipulation that each defendant will:
(1) submit to the personal jurisdiction of the courts of the other forum; and
(2) waive any defense based on the statute of limitations applicable in the other forum with respect to all causes of action brought by a party to which this subsection applies.
T.R. 4.4(D). Rule 4.4(D) embraces the following rationale:
[T]he suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiffs cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant’s stipulation that he will not raise this defense in the second state.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 84 cmt. c (1971). Under Indiana Trial Rule 4.4(E), if the moving party violates a stipulation required by subsection (D), the court shall withdraw the order staying or dismissing the action and proceed as if the order had never been issued. 8
Subsections 4.4(D) and (E) limit a finding of forum non conveniens. 1 William F. Haevey, Indiana Pkactioe, Comments on Rule 4.4(D) and (E) (Supp.1998). Wausau was required to show that all properly joined defendants had filed a “written stipulation” with the clerk of the court. T.R. 4.4(D). Wausau has neither alleged nor demonstrated compliance with subsection (D) which, in itself, was fatal and dispositive of Wausau’s motion. Under Trial Rule 4.4(D), the court properly denied Wausau’s motion to dismiss on grounds of forum non conveniens.
Issue Two: Duty to Defend
We now turn to the trial court’s grant of Recticel’s motion for partial summary judgment. When reviewing a ruling on a summary judgment motion, we conduct the same inquiry as the trial court: summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C);
Shell Oil Co. v. Lovold Co.,
A. Choice of Law
In their briefs, both parties agree that resolution of this case requires a choice-of-law analysis.
9
Wausau argues that, under
Absent an effective choice of law by the parties, the question is decided by the courts of the state in which the lawsuit is pending.
Schaffert by Schaffert v. Jackson Nat’l Life Ins. Co.,
Here, neither the place of contracting nor the place of negotiation is determinative. RFC managed its insurance affairs from Indiana where the policies were maintained. Specifically, Indiana personnel were responsible for the purchase of insurance, the payment of premiums and the resolution of any disputes relating to the policies. Wausau’s policies were issued from its New York office. Some policies list RFC’s address as Indiana, and others list RFC’s address as New York, the location of its broker.
It is unclear whether the negotiations occurred in New York or in Indiana. Wausau claims that the policies were negotiated between Wausau personnel and RFC’s agents in New York; RFC claims they were negotiated in Indiana. It is likely that at least some negotiation occurred in both states. 11
The place of performance and the location of the subject matter relate to the location where potential liability will arise in the context of insurance contracts.
Travelers Indem. Co. v. Summit Corp. of America,
Without other evidence of the probability of risks at individual sites, it is assumed that, as the number of sites increases, so does the risk of an occurrence.
Summit,
During the term of the relevant insurance contracts, RFC's manufacturing plants were located in numerous states, including New York and Indiana, and its products were allegedly delivered “all over the world.” Wausau maintains that, according to its records, in 1981 RFC had two facilities in New York and two in Indiana. In 1984, after RFC moved its headquarters from New York to Indiana, RFC had one facility in New York and two in Indiana. By 1987, there was one facility in each state. Thus, although there was potential liability in both Indiana and New York, Indiana was the location of more sites. This factor slightly favors Indiana.
Wausau is a Wisconsin Corporation with its headquarters in Wisconsin. RFC is domiciled in Delaware. However, RFC’s principal place of business was in Indiana from 1983 until 1990. With respect to most issues, a corporation’s principal place of business is a more important contact than its place of incorporation. Restatement (Seoond) of Conflict of Laws § 188 cmt. e (1971). Here, the principal place of business counts as a distinguishing factor.
None of the factors examined is compelling or conclusive. However, the risk of occurrences was slightly greater in Indiana, and Indiana was RFC’s headquarters during the relevant period while New York was neither Wausau’s domicile nor its headquarters. The number and quality of contacts favor Indiana over New York and, thus, we hold that the substantive law of Indiana applies to the insurance policies and non-waiver agreements.
B. Non-Waiver Agreements
Next, we consider Wausau’s claim that the trial court erred when it found it had a duty to defend the TDEC Notice of Violation Letter and the Foshie and Cobble lawsuits. The trial court summarily ordered Wausau to pay past and future defense costs without indicating the basis of its decision. Recticel averred that Wausau owed it a duty to defend under both the non-waiver agreements and the insurance policies.
An insurance company’s duty to defend is broader than its duty to indemnify.
Seymour Mfg. Co. v. Commercial Union Ins. Co.,
Here, Wausau and RFC executed non-waiver agreements in which Wausau agreed to “participate in the defense” of the underlying proceedings. Neither party disputes, the validity of the non-waiver agreements.
See Bergh v. Canadian Universal Ins. Co.,
Indiana recognizes that an insurer may properly refuse to defend where an independent investigation reveals a claim
patently
outside the risks covered by the policy.
Liberty Mut.,
Wausau also takes the position that it intended to defend the TDEC matter only in the event an actual lawsuit were filed. Because no formal lawsuit was filed, it now asserts that it has no duty to defend. 13 Wausau’s assertion requires that we interpret the non-waiver agreement which provides, in relevant part, that Wausau will participate in the defense of RFC “for the suit entitled Tennessee DEC v. Recticel Corporation.”
Indiana courts have not construed the word “suit” in a non-waiver agreement. However, in the context of a comprehensive general liability insurance contract, this court has decided that “suit” includes coercive and adversarial environmental administrative proceedings.
Dana,
Wausau, a sophisticated insurer, contracted to defend “the suit,” an obvious reference to the existing TDEC letter, which was the only action pending between the TDEC and Recticel. Wausau did not condition its defense on the filing of a formal lawsuit.
See Summit,
In a separate argument, Wausau contends that the trial court erred when it ordered Wausau to pay Recticel $1,562,-419.43 for past defense costs plus all future costs of defending the TDEC, Foshie, and Cobble actions. Wausau has paid a portion of attorney’s fees incurred in the Foshie and Cobble lawsuits but has refused to pay all expenses as submitted. In this appeal, it argues that other expenses were unreasonable or unnecessary and that some “consultants’ fees” do not qualify as costs of “defense.” 14
Because Wausau has a duty to defend Recticel, Wausau is liable for the reasonable and necessary expenses incurred by Recticel in defending the actions. Nevertheless, Recticel has the burden of establishing the nature of the services rendered and the reasonableness of the charges.
See Loudermilk v. Casey,
This court has recognized that judicial notice of the reasonableness of fees may be appropriate in routine cases or in those involving small awards.
See Loudermilk, 4
Issue Four: Coverage by Estoppel
Finally, Wausau challenges the court’s ruling that it is estopped from raising policy defenses against its duty to indemnify. Wausau points out that it expressly reserved its right to assert those defenses in the non-waiver agreements to which RFC was a party. Recticel insists that, notwithstanding those agreements, Wausau’s refusal to pay all defense costs and its “litigation conduct,” including its failure to conduct a reasonable investigation and its delay in reaching a coverage determination, justify the trial court’s finding of coverage by estoppel.
As its name suggests, a “non-waiver agreement” concerns waiver. Es-
Indiana adheres to the general rule that the doctrine of estoppel is not available to create or extend the scope of coverage of an insurance contract.
Manta,
Under a second exception, applied for the first time in
Manta,
an insurer may be estopped from raising the defense of noncoverage when it assumes the defense of an action on behalf of its insured without a reservation of rights but with knowledge of facts which would have permitted it to deny coverage.
Id.
(citing
Hermitage Ins. Co. v. Salts,
Here, Wausau did not categorically refuse to defend Recticel. Rather, it entered into non-waiver agreements and filed a declaratory judgment action. Thus, neither exception applies.
See
7C John Alan Appleman, Insurance Law and PRACTICE § 4694, at 336 (Berdal ed.1979) (generally where insurer conducts investigation or defense under non-waiver agreement, insurer will not be estopped to set up policy defenses available to it). However, a non-waiver agreement does not immunize an insurer from responsibility for all its actions.
Connecticut Fire Ins. Co. v. Fox,
In Count III of its complaint, Recticel advanced a claim for the tortious breach of the duty of good faith. However, Recticel neither sought nor obtained summary judgment on that count. Consequently, the record is not developed on that claim.
See Gooch v. State Farm Mut. Auto. Ins. Co.,
The trial court did not specify its basis for finding an estoppel. Our review is
de novo,
and we cannot say on this record that Wausau’s failure to pay all invoices submitted by Recticel justifies an estoppel as a matter of law. Wausau’s duty to Recticel does not include the duty to pay all bills as submitted. Rather, the insurer has the right to challenge the nature and reasonableness of the defense expenses incurred. The same can be said for Wausau’s “litigation conduct” in this case involving environmental claims under policy provisions which have been given varying interpretations by the courts.
See, e.g.,
Carol A. Crocca, Annotation,
Liability Insurance Coverage for Violations of Antipollution Laws,
Conclusion
We affirm the trial court’s denial of Wausau’s motion to dismiss on the basis of
forum non conveniens.
We also affirm that part of the court’s order on partial summary judgment which found Wausau has a duty to defend Recticel in the TDEC,
Foshie
and
Cobble
actions. However, we reverse that part of the order which directed Wausau to pay all present and future defense costs, and we remand for a factual determination concerning the reasonableness and necessity of those costs. In addition, we reverse the court’s
Affirmed in part, reversed in part and remanded.
Notes
. We heard oral argument on June 22, 1999.
. Purportedly, the Tennessee state action is stayed pending the outcome of this case.
. Our review of this case is frustrated by Wausau's numerous citations to evidentiary material submitted
after
the trial court had ruled on Recticel’s motion for partial summary judgment. Indiana Trial Rule 56(C) does not mandate the manner in which a party is to specifically designate material.
Van Eaton v. Fink,
. See Ind. Trial Rule 53.3(A).
. Wausau also insists that we must remand this case for findings of fact and conclusions of law. Wausau is mistaken. Indiana Trial Rule 52(A) states that findings of fact "are unnecessary on decisions of motions” under Trial Rule 56 or any other motion except as provided in Rule 41(B) (involuntary dismissal) and 59(J) (relief granted on motion to correct error).
.In addition to Wausau, Recticel filed its complaint against: St. Paul Fire and Marine Insurance Company; Pacific Employers Insurance Company; Commercial Union Insurance Company; CNA Insurance Companies; Continental Insurance Company; Stonewall Insurance Company; Northbrook Insurance Company; Underwriters of Lloyds, London; INSCO, Ltd.; The Birmingham Fire Insur
. Only Wausau was ordered to pay defense costs and, thus, Wausau appealed as a matter of right under Indiana Appellate Rule 4(B)(1). Our court determined that, in the interest of judicial economy, the forum non conveniens and estoppel issues would also be considered, as well as the order to pay future defense costs as submitted.
. Subsections 4.4(D) and (E) became effective February 1, 1995.
. At oral argument, Wausau took the position that under either New York or Indiana law, it
. The trial court did not specify which state's law it applied. On appeal, Wausau asserts, in the alternative, that Tennessee law is applicable. Recticel points out that Wausau did not malee that argument before the trial court. In any event, Wausau does not support the assertion in its brief and, thus, has waived consideration of the issue. See Ind. Appellate Rule 8.3(A)(7).
. The parties do not discuss the Restatement factors as they specifically apply to the non-waiver agreements. We presume that the same or similar contacts are involved.
. As one basis for that assertion, Wausau insists that Reclicel’s actions were intentional. Recticel and Steve Cansler were the subject of a 1992 criminal indictment filed in a Tennessee federal court.
See United States v. Recticel Foam Corp.,
. In a separate argument, Wausau contends that it had no duty to defend the TDEC letter because it was directed to Foamex, not RFC, its insured. Wausau cannot rely upon a theory not properly before the trial court.
Otto v. Park Garden Assocs.,
. Wausau also argues that the amounts incurred for the defense of the TDEC letter naming Foamex as the liable party are not recoverable because Foamex is not the named insured under the Wausau policies. In addition, Wausau maintains that Recticel cannot recover costs incurred before notice to Wau-sau or costs incurred after notice but as to which Wausau had no knowledge and did not consent. Wausau has not shown reversible error in either of these matters. In a separate argument, Wausau claims it should not be held liable for all costs. However, that claim was not raised in the trial court at the appropriate time.
See
T.R. 56(C) and (H); Otto,
. By comparison, a waiver is "the voluntary or intentional abandonment or relinquishment of a known right, an election not to take advantage of a technical defense in the nature of a forfeiture, raised by an act of the insurance company...." 46 C.J.S. § 786 (footnotes omitted).
. If an insurer fails to defend under a reservation of rights or to seek a declaratory judgment that there is no coverage and is later found to have wrongfully denied coverage, the insurer may be estopped from raising policy defenses to coverage.
Employers Ins. of Wausau v. Ehlco Liquidating Trust,
. The Supreme Court of Washington set forth four criteria by which an insurer can fulfill its duty to defend under a reservation of rights:
First, the company must thoroughly investigate the cause of the insured’s accident and the nature and severity of the plaintiff’s injuries. Second, it must retain competent defense counsel for the insured. Both retained defense counsel and the insurer must understand that only the insured is the client. Third, the company has the responsibility for fully informing the insured not only of the reservation-of-rights defense itself, but of all developments relevant to his policy coverage and the progress of his lawsuit. ... Finally, an insurance company must refrain from engaging in any action which would demonstrate a greater concern for the insurer's monetary interest than for the insured’s financial risk.
Tank,