IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-IA-01820-SCT PEKIN INSURANCE COMPANY

v. MARSHA R. HINTON AND THOMAS F. HINTON, INDIV IDUALLY

AND, AS THE WRONGFUL DEATH BENEFICIARIES OF TIMOTHY R. HINTON, DECEASED

DATE OF JUDGMENT: 12/10/2014 TRIAL JUDGE: HON. BILLY JOE LANDRUM TRIAL COURT ATTORNEYS: DORRANCE AULTMAN LAW RENCE E. ABERNATHY, III LESLIE D. ROUSSELL SAMUEL McHARD COURT FROM W HICH APPEALED: JONES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DORRANCE AULTMAN SARAH BETH W INDHAM ROBERT MARC CHEMERS RICHARD MANGIERI BURGLAND ATTORNEYS FOR APPELLEES: LAW RENCE E. ABERNATHY, III LESLIE D. ROUSSELL SAMUEL STEVEN McHARD NATURE OF THE CASE: CIVIL - INSURANCE DISPOSITION: AFFIRMED AND REMANDED - 04/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WALLER, C.J., LAMAR AND MAX WELL, JJ.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. In this interlocutory appeal, Pekin Insurance Com p any challenges the Jones County Circuit Court’s denial of its m otion t o dism iss f or lack of personal jurisdiction. Pekin—anIllinois com pany not licensed t o s ell insurance in Mississippi—asserts it h ad not entered a
contract w ith a Mississippi r e s i d e n t , h a d not com m itted a t ort in M ississippi, and had not done any business in Mississippi. So it cannot be subject to the jurisdiction of Mississippi courts under our long-arm statute. 1 ¶2. But Pekin v oluntarily subm itted itself to the jurisdiction o f a Mississippi f ederal court, asking t hat court t o resolve the same coverage dispute over which it now c laim s Mississippi has no jurisdiction. W e hold that Pekin, by af f i rm atively

seeking relief

f rom a Mississippi court, im pliedly consent e d t o Mississippi’s jurisdiction over the c o verage dispute. Consequently , Pekin waived its def ense that the Jones County Circuit C ourt l acked personal jurisdiction over it in t he coverage-related claim s lodged a g ainst it. Thus, we af f irm the circuit court’s order d e ny ing Pekin’s m otion to dism iss. And we rem and this case to the circuit court f

or f urther proceedings consistent with this opinion. Background Facts and Procedural History
I. Wrongful-Death Suit: Jones County Circuit Court ¶3. Tim othy Hinton died af ter the saf ety harness on his treestand allegedly broke and he
f ell eighteen f

e et. C&S Global Im

ports, Inc., m anuf

actured the stand, which cam e with a f ull body harness, tether, and t ree strap. The m anuf a cturer claim ed the tree stand, harness, tether, and tree strap had a weight-bearing capacity of 350 p ounds and a f ive-y ear warranty

. Hinton, who weighed 250 pounds at the tim e of his f all, h ad bought the treestand and accom pany ing

1 See Miss. Code Ann. § 13-3-57 (Rev. 2012). 2saf

ety harness f

r om the retailer The Sportm an’s Guide t hree y ears bef ore his f a ll. Tim othy ’s parents, Marsha and Thom as Hinton, f iled a wro n g fu l -death suit against C&S G lobal Im ports and The Sportsm an’s Guide in the Jones Count Circuit Court. 2
II. First Declaratory Action: Illinois State Court ¶4. The ap p e llant, Pekin Insurance Co., f ound its way i nto the Hintons’ l awsuit as the liability insurer f

or C&S Global I m

ports. C &S Global Im

p orts had tendered the def ense of

t h e H i ntons’ lawsuit to Pekin. Pekin denied a def ense, citing t he treestand exclusi o n i n Pekin’s policy

. ¶5. The S portsm an’s G uide also requested a def ense u nder C&S Global Im ports’ policy

. T h e Sportsm an’s Guide claim e d it was an additional insured based on the certif icate o f insurance. But Pekin rejected this claim too. According to Pekin, The Sportsm an’s Guide

was n ot a nam ed insured. And even if it were, it was subject to the sam e treestand exclusion in the C&S Global Im

ports policy

. ¶6. In M a rch 2014, Pekin, an Illinois com pany , f iled a declaratory action in Illinois state
court. Pekin asked t hat court to resolve the coverage issue between i t and C &S Global
Im ports and The Sportsma n ’ s G u ide. Pekin also nam ed the Hintons as d ef endants. C&S Global Im ports def a ulted. Pekin then m oved to voluntarily dism iss The Sportsm an’s Guide

2 T h e H in to n s a l s o s ue d t

he Treestan d M an u f

a ctu rers A sso ciatio n an d H u n ter’s V iew , th e c o m p an y w h o se lo g o ap p e ared o n th e tree stan d p a c k a g i n g . Wh ile th e T reestan d M an u f a ctu rers A sso ciatio n h as an sw ered th e H in to n s’ seco n d am en d ed c o m plain t, H u n ter’s V i ew w as n e v er serv ed p ro cess. T h e reco rd su g g ests H u n ter’s V iew m a y h av e b een a d / b /a f o r C &S G lo b al Im

p o rts an d n o t a sep arate leg a l en t ity

. 3and the Hintons. In August 2 0 1 4 , the Illinois state court dism issed Pekin’s a ction without

m aking “any f

inding o n the insurance coverage f or C&S Global Im

ports,” instead “leav[ ing] all issue[ s] of coverage to another Court in another jurisdiction.”
III. Second Declaratory Action: Mississippi Federal Court ¶7. The m onth bef

ore, w hile the Illinois action was s till pending, P e k i n f i led a second declaratory action. T his tim e Pekin f i l e d suit in the United States District Court f or the Southern D istrict of M ississippi. Pekin nam ed the T he Sportsm an’s Guide and the Hintons

as def endants, but not C&S Global Im ports. In its second d eclaratory a ction, Pekin asked the Mississippi d istrict c ourt t o declare Pekin had no duty to indem n if y C &S Global Im

p orts 3 and

no duty to def

end or indem nif

y T he Sportsm an’s Guide against the Hintons’ wrongf ul-death lawsuit.
IV. Am ended Wrongful-Death Suit: Jones County Circuit Court ¶8. A m onth af

ter t he Illinois declaratory action was dism issed (so two m onths a f ter Pekin
f iled the Mississippi declaratory action), t he Hintons am ended t heir wrong f u l

- d e a th

com plaint. Their second am ended com plaint added Pekin as a def endant and asserted two new claim s against the insurer. ¶9. In C ount 12, the Hintons brought their own declaratory a ction, asking the circuit court
to a djudicate Pekin’s rights and responsibilities connected to C &S G lobal Im p orts’ liability

3 C &S G l o b al Im

p o rts d e f a u lted in t h e H in to n s’ law su i t. S o th e q u estio n o f P ek i n ’s d u ty to d ef en d C &S G lo b a l Im

p o rts is n o lo n g er at issu e.

4p o licy

. And i n Count 13, the Hintons alleged Pekin had com m itted the tort of neglige n t

and/or i ntentional m isrepresentation. The Hintons asserted that Pekin had r epresented to The Sportsm an’s G uide that C&S Global Im ports’ products were covered under the liability policy

. And only af

ter the H in t o n s s u e d The Sportsm an’s Guide did the retailer learn treestands were not covered. U nder the Hintons’ theory , T he Sportsm an’s Guide would not have m arke t e d C&S G lobal Im ports’s treestands, had it known these p roducts were not covered. And both the Hintons and The Sportsm an’s Guide “have sustained d am ages as a result of Pekin’s m isrepresentations to S portsm an’s Guide in that Pekin has f ailed t o provide indem nif ication and/or a def

ense f or [ the Hintons’] claim s [

. ]” ¶10. I n s t e a d o f f

i ling a n answer, Pekin f

iled a m otion to d ism iss f or lack of persona l jurisdiction. S

ee M.R.C.P. 12(b)(2). Pe k i n c laim ed, because it had not e ntered a contract with a Mississippi reside n t , h a d not com m itted a tort in Mississippi, and did not conduct business in M ississippi, it w as not subject to personal jurisdiction under Mississippi’s longarm statute. See Miss. Code Ann. § 13-3-57 (Rev. 2012). To s upport its m otion, Pekin attached an af

f idavit by Tim Manning, one of

Pekin’s litigation m anagers. 4

4 A cco rd in g to M an n in g , P ek in In su ran ce C o m p an y : (1 ) w as in co rp o rated in Illin o is; (2 ) h as its p rin cip al p lace o f b u sin ess in Illin o is; (3 ) is licen sed an d au th o rized o n l y to w rite liab i lity in su ran ce in A rizo n a, Illin o is, In d ian a, Io w a, O h io , an d Wisco n s in ; (4 ) is n o t in co r

p o rated , q u alif

ied , o r licen sed t o d o b u sin ess in M ississip p i; (5 ) h as n ev er b een ad m itted as an in su rer in M ississip p i; (6 ) h a s n e v e r t r a n s a c t e d b u s i n e s s o r o t h e r w i s e so ld i n s u r a n c e i n 5¶11. In res p o n se, the Hintons argued Pekin was taking an inconsistent position on the

jurisdictional question, “contradictorily seek[ ing] to be dism i ssed f rom this Mississippi court

on jurisdiction a l grounds while sim ultaneously f

i ling suit a gainst the Hintons o n the sam e

m atter in Mississippi Federal court.” ¶12. The Hi n t o n s also m oved to strike Manning’s af f idavit. They argued the docum ent contained im

proper legal conclusions—nam ely , Manning’s c l aim “Pekin has never

com m itted a tort in Mississippi.” The circuit court granted the Hintons’ m otion and struck the af f idavit. ¶13. In t he sam e order, the c ircuit court denied Pekin’s m otion to dism iss. The circuit court f ound Pekin e ssentially h ad c onceded M ississippi was the proper f orum f or the cov erage

M ississip p i ; (7 ) h as n o o f

f ices o r p h y sical f

acilities i n M i s s issip p i; d o es n o t p o ssess, o w n , o r lease p r o p erty

in M i ssissip p i; (8 ) h as n o reg istered ag en t in M ississip p i ; (9 ) h a s n e v e r h a d a n y e mp lo y e es, rep r esen tativ e s, a g en ts, o f f icers, o r d irecto rs in M ississip p i; (1 0 ) h a s n o t e l e p h o n e n u mb e r s , b a n k a cco u n ts, m ailin g ad d resses i n M ississip p i ; (1 1 ) p ay s n o tax es in M i ssissip p i; (1 2 ) h as n o assets in M ississip p i; (1 3 ) d o es n o t co llect p r em iu m s f r o m an y o n e in M i ssissip p i; (1 4 ) h as n ev er co m m itted a to rt in M ississip p i; (1 5 ) i s s u e d , e n d o rsed , a n d ren ew ed th e d isp u ted p o l icy in t h e S t a t e o f Illin o is to an Illin o is co m p an y , C &S G lo b al Im

p o rts; (1 6 ) p erf

o rm ed n o tran sactio n s related to th e d i sp u ted p o licy in M ississip p i; (1 7 ) co llected all p rem iu m s f o r th e d isp u ted p o licy

in Illin o is; an d (1 8 ) h ad n o ex p ectatio n “to b e h au led i n t o C o u rt in th e S tate o f M ississip p i” in co n n ectio n w ith th e d isp u ted p o l icy

. 6dispute when it f iled its declaratory

action in the Southern District of Mississippi. ¶14. The circuit court a lso concluded Pekin’s a ctions f ell under Mississippi’s long-arm

statute. Specif

ically , the c ourt f

ound Pekin had been “doing business” in Mississippi because it “in f act adjusted the [ H i n t o n s ’ ] wrongf ul death claim

. . . in Mississippi” a n d denied
coverage to The Sportsm an’s Guide by letter m ailed to The Sportsm an’s Guide local counsel
in Hattiesburg, Mississippi. 5 ( The c ourt opined these actions m ay also “constitute the

com m ission of a tort” in Mississippi.) Further , t h e c i r c u i t c ourt f o und its exercise of jurisdiction ov e r P ekin n either violated t he Due Process Clause n or of f ended t raditional

n o t i o n s o f f

air play or substantial justice. Because Mississippi was in the “cover a g e territory ” of the C&S Global Im ports p olicy and because Pekin’s subsidiary was licensed to sell i nsurance in Mississippi, Pekin had suf f icient m inim

um contacts with this state. And by
f iling suit, Pekin has “purposef ully availed itself

” of the courts in Mississippi.
V. Interlocutory Appeal ¶15. This court granted an interlocutory ap p e a l o f t h e circuit court’s order. On appeal, Pekin challenges b oth t he grant o f the H intons’ m otion to strike Manning’s af f idavit and the

5 T h e c i r c u it co u rt f

o u n d it h ad p erso n al j u risd ictio n o v er P e k in “f o r m u ltip le reaso n s,” in clu d in g : (1 ) th e “ co v e rag e territo ry ” f o r th e C &S G l o b a l I m

p o r ts p o licy w as “th e U n ited S tates o f A m erica”; (2 ) P ek in ad j u sted H in to n s’ w ro n g f

u l -d e a th claim in M ississip p i; (3 ) P ek in p o s sib l y co m m itted a to rt a n d /o r b reach o f co n tract i n M ississip p i w h en it d en ied c o v erag e to T h e S p o rtsm an ’s G u id e; an d ( 4 ) P ek i n ’ s w eb site u ses th e g ro u p n am e “P ek i n In su r an ce” to ref er n o t o n ly to P ek in In su ran ce C o m p an y b u t also th e su b s i d i a r i e s P ek in p artly o w n s, an d o n e su b sid iary , P e k in L ife In su ran ce C o m p an y , is licen sed to sell in su ran ce in M ississip p i

. 7denial of

Pekin’s m otion to dism iss f or lack of personal jurisdiction. ¶16. W e f

ocus our review on the m otion to d i s mi s s f o r lack o f personal j urisdiction. “Jurisdiction i s d e c i d e d based o n the existing f acts at the tim e the action is c o m m enced.”
Joshua Props., LLC v. D1 Sports Holdings, LLC , 1 3 0 So. 3 d 1089, 1092 ( Miss. 2014) (citation om itted). And here, the f act Pekin f

i led its own declaratory action in a Mississippi

court controls. N one of the averm ents in Manning’s af f idavit calls this d ispositive f act into
q u e s t i o n . S o the issue of w hether the c ircuit court abused its discretion by striking Manning’s af

f idavit has no bearing on the resolution of the jurisdictional question.
Discussion ¶17. Pekin asserts the circuit c ourt erred as a m atter of law when it denied Pekin’s m otion

to dism iss based on lack of personal jurisdiction. Jurisdiction is a question of law, which this

c o u r t reviews de novo. Horne v. Mobile Area Water & Sewer Sys. , 897 So. 2 d 972, 975 (Miss. 2004). ¶18. On de novo r e v i e w, Pekin asks this c ourt to reapply the “two-tier j urisdictional
f ram ework” f

or determ ining when a court m ay e x e r c i s e p e r sonal jurisdiction. Id. at 976. Under this f

ram ework, the court m

ust f irst ask if , under Mississippi l a w , t h e nonresident “def endant is am enable t o s uit here b y v irtue o f t he Mississippi long-arm statute[ .]” Id. (citing Mis s . C o d e A n n . § 13-3-57). If so, the court m ust a lso determ ine if

, under f ederal law, the nonresident “def endant i s am enable to suit in Miss i s sippi consistent with the due
process clauses of the f

ederal constitution, and, as well, t his stat e ’ s c o nstitution.” Id.

8According to Pekin, i t has not engaged in any activities that m ake it am enable to suit under

the long-arm statute. Further, the circuit court’s exercise of jurisdiction u nder the long-arm statute would violate due process. ¶19. But personal j urisdiction is an individual right that c a n be waived. Ins. Corp. of
Ireland v. Com

pagnie des Bauxites de Guinee , 456 U.S. 694, 703, 102 S. Ct. 2099, 2105,
72 L. Ed. 2d 492 (1982). And there a r e a “variety of legal arrangem ents [ that] have been taken to represent express or im plied consent to the personal jurisdiction of the court.” Id.
So the long-arm statute is n o t the only a venue f or t he circuit court to obtain personal jurisdiction over Pekin in the Hintons’ lawsuit. The circuit court m ay also obtain personal jurisdiction through Pekin’s im p lied consent. ¶20. Under f

ederal precedent, one way to give im p lied consent is to do exactly what Pekin did—f ile a lawsuit i n the sam e state ov e r t h e sam e i nsurance policy

. Am . Fam ily Life
Assurance Co. of Colum bus v. Biles , Civ. A ction No. 3:10CV667TS L-FKB, 2 011 W L 4014463, at *2 (S.D. Miss. Sept 8, 2011) (unreported) ( citing Gen. Contracting & Trading Co., LLC v. Interpole, Inc. , 940 F.2d 20, 23 ( 1st Cir. 1991)); see also Praetorian Specialty
I n s . C o . v . Auguillard Constr. Co., Inc. , 829 F. S upp. 2d 456, 4 65 (W .D. La. 201 0 )

. Persuaded by the f

edera l c o u r t s ’ reasoning, we hold Pekin has im pliedly consented to Mississippi’s j urisdiction over the Hintons’ c l a i ms because Pekin had already asked a Mississippi f

ederal court to resolve the very sam e coverage issues a rising f r om the sam e policy

. This consent creates an independent basis f o r jurisdiction, obviating the need to go

9through long-arm -statute analy sis. See Marron v. Whitney G roup , 662 F

. Supp. 2d 198, 200 (D. Mass. 2009) (citing Interpole , 940 F.2d at 22).
I. “Affirm a tive Relief Rule” ¶21. In Interpole , the United S tates Court of Appeals f or the First Circuit was tasked with reviewing a trial-court ruling sim i lar to t he one here. There, a New Ham pshire district court f ound that a cause of action against a nonresident c orporation f ell within New Ham

pshire’s long-arm s tatute a nd d id not of f end d ue process. Interpole , 940 F.2d a t 22. On appeal, the First Circuit “by

pass[ ed] t his analy sis.” Id. The First Circuit concluded the nonresiden t def endant had “subm itted i tself to the court’s personal jurisdiction” when it f iled a second
l a w suit in the sam e New Ham pshire district court, “thus m aking a conventional long a r m analy sis irrelevant.” I

d . ; see also Marron , 662 F. Supp. 2d at 200. ¶22. According to t he First Circuit, to hold o therw i s e w ould create “an unjust
asy m m etry ”—nam ely , “allowing a party

. . . to enjoy

the f ull benef its of access to a state’s
court [ as a ] p laintif

f , while n onetheless r etaining im m unity f rom the c o urt’s a

u thority [ as a] def endant in respect to claim s asserted by the very p arty it was suing.” Interpole , 940 F.2d

at 2 3. Because the nonresident corporation in that c ase “ p urpo s e f u l l y a v ailed itself of the benef its and protections of t he f orum by instituting [ the s econd lawsuit],” t h e First Circuit
f ound the nonresident corporation had “voluntarily subm itted i tself t o the jurisdiction of the
New Ham

pshire courts f

or purposes of [ the f

irst lawsuit],” wh i c h a r o s e o u t of the sam e transaction and involved the sam e parties as the second lawsuit. Id. at 25.

1 0¶23. Thus, Interpole “establish[ ed] an af f i rm a t ive relief rule[ .]” Dow Chem . Co. v. Calderon , 422 F.3d 827, 834 (9th Cir. 2005). The Fif th Circuit h as sum m ed up the Interpole rule as f ollows: “[ A] def

endant waive[ s] its jurisdictional d ef ense by suing the plaintif f in the o bjectionable f

orum in a second suit involving the sam e f acts.” Brokerwood Prods. Int’l,
Inc. v. C

uisine C rotone, Inc. , 104 Fed. App’x 376, 3 80 (5th C ir. 2004); see also
PaineWebber Inc. v. The Chase Manhattan Private Bank , 260 F.3d 453, 459 n.6 (5th Cir. 2001) (citing Interpole f or “the well-established r u l e that parties who choose to litigate actively o n

the m erits thereby

surrender any

jurisdictional objections”).
II. Application ¶24. Pekin gives t hree reasons why we should not a pply t he af

f irm ative-relief r

ule in this case, none of

which we f

ind persuasive.
A. Objectionable Forum ¶25. First, Pekin a sserts it h as not waived its lack-of -personal-jurisdiction def ense because it did not sue the Hintons in M i ssissippi state c o urt, but rather M ississippi federal c ourt. But f or personal-jurisdiction purposes, this is a distinction w i thout a d if f erence. “In the context of personal jurisdiction, i t i s s e ttled that the concept of a ‘state’s courts’ includes those
f ederal c ourts located within the state.” Interpole , 9 40 F

. 2 d at 23 n.4 (citing Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775-77, 104 S. Ct. 1473, 1478-79, 79 L. Ed. 2d 790 (1984)). This m eans the United States District Court f o r Southern District of

Mississippi,

1 1though f

ederal, is a “Mississippi court” f or purposes of

personal jurisdiction. 6 ¶26. Again, “a def

e ndant w aive[ s] its jurisdictional def ense by suing the plaintif f in the objectionable forum in a s econd suit involving the sam e f acts.” Brokerwood Prods. Int’l , 104 Fed. A pp’x at 380 (e m p h asis added). “ [ T]he word ‘f orum ’ in a personal jurisdiction analy sis

. . . ref

er[ s] t o t h e state in which a court resides, not sim ply a particular court.”
Praetorian Specialty Ins. , 829 F

. Supp. 2d at 465 (citing Burger King Corp. v . R udzewicz , 471 U.S. 462, 472

- 7 3 , 1 0 5 S

. C t

. 2174, 2182-83, 85 L. Ed. 2d 528 (1985); McFadin v. Gerber , 587 F.3d 7 5 3, 759 (5th Cir. 2009)). So here, t he o bjectionable f orum is M ississippi, and not Mississippi state courts (as opposed to f ederal). ¶27. Though Interpole i nvolved two suits in the sam e New Ham pshire f e d e r a l court, subsequent cases have recognized that the af f irm ative-relief rule i s “not lim ited to the f act that the def

endant f i led a second l awsuit in the v ery f e d eral district court w here the lawsuit
in w hich it was contesting p ersonal jurisdiction was pending. ” Praetorian Specialty Ins. , 829 F. S upp. 2d a t 465. Rather, the signif icance of the second lawsuit in Interpole lay in the
f act i t had been f

iled in a court in the s ame state

. Id. ; see also Capriotti’s Sandwich Shop,
Inc. v. T aylor Fam ily Holdings, Inc. , 857 F

. Supp. 2d 489, 501 (D. Del. 2012) (f i n d ing Interpole ’s holding was “m ore e xpansive” th a n sim ply apply ing to two s u its f i led in sam e f ederal district court). F or exam ple, in Praetorian Specialty Ins. , a Louisiana federal court

6 F o r th is reaso n , M ississip p i f ed eral c o u rts ap p l y o u r s tate’s lo n g -arm statu te w h en d eterm in in g p erso n al j u risd i ctio n . E.g. , Walker v. World Ins. , 2 89 F. Supp. 2 d 7 8 6 (S.D. Miss. 2003) (apply ing Miss. Code Ann. § 13-3-57). 1 2held the nonr e s ident def endant had waived its lack-of -personal-jurisdiction def ense by electing to f

ile an action in L ouisiana state court based on sam e nucleus of operative f acts. Praetorian Specialty Ins. , 829 F. Supp. 2d at 4 65; see also M arron , 662 F. Supp. 2d at 201 (holding a def

e ndant who chose to f

iled suit in Massachusetts s tate court based o n the sam e transaction waived h i s j urisdictional def ense in Massachusetts f

e deral court). A nd in Biles , a Mississippi f

ederal court held the sam e. Biles , 2011 W L 4014463, at *2. ¶28. I n Biles , Texas resident Michael Lockwood had been nam ed as a def en d a n t t o AFL A C ’ s c om

p laint to com

p el arbitration f

iled in the Southern District of M ississippi.
AFLAC sought arbitration to resolve a dispute over who was ent i t l e d t o the benef its of an AFLAC lif

e insurance policy , which contained an arbitration clause. Id. at *1. L ockwood responded that he lacked the suf f i cient contacts with Mississippi f or the Mississippi f

ederal

court to exercise personal jurisdiction over him

. Id. at * 2. But “ Lockwood, a long with his

m other and siblings, ha[ d] voluntarily i nitiated litigation against AFLAC in this f orum , albeit
in state court , alleging he is entitled to b enef its under AFLAC’s p olicy and that A FLAC has breached its contract with him .” I d. (em phasis added). Thus, the district court concluded, “by af f irm atively s uing AFLAC in this forum to enf orce his claim ed right to recover benef its under the AFLAC policy , Lockwood h a[ d] ef f ectively consented to suit and/or waived any def ense to personal j urisdiction in this suit by AFLAC in this f orum to enf

o rce the very sam e policy ’s arbitration provision.” Id. (em phasis added) (citing I

nterpole , 940 F.2d at 23). ¶29. Here, we have the sam e situation as in Biles , just i n reverse. Pekin cl a im s it lacks

1 3suf

f i cient contacts with Mississippi f or the Jones County Circuit Court to e xercise personal jurisdiction over it in the H i n tons’ lawsuit involving the C&S G lobal Im ports policy

. But Pekin, like Lockwood, “volu n t a r ily i nitiated l itigation against [ the Hintons] in this forum , albeit in [ f

ederal] court.” Biles , 2011 W L 4014463, at *2. ¶30. Because Pekin has f iled a declaratory action against the Hintons in the objectionable for u m

— i

. e., Mississippi—we f ind Pekin “ef

f ectively consented to s u it and/or w aived any def ense to personal jurisdiction” in the Hintons’ suit, which was f iled in the s am e f

orum and concerns the sam e policy

. Id.

B. Voluntary Submission ¶31. N e x t , P ekin argues its Mississippi d eclaratory action was not “voluntary .” Rather , Pekin claim s it was “f

orced” into Mississippi f e d e r a l court “af

ter the Hintons ref

used to litigate the coverage action in Illinois.” ¶32. But this is not a case l ike P aineWebber, I

n c. , i n which the plaintif

f had i ts New York

state-court action rem oved to New York f ederal court and then, over objection, transf erred

to Texas f

ederal court. PaineWebber, Inc. , 260 F .3 d a t 4 5 9 -60. In that case, the Fif th Circuit held Interpole d id not apply because the plaintif f had not “chosen to com m ence the action or a r elated action in the very f orum in which it is contesting personal jurisdiction.”
Id. at 460 n.8. He r e , t h o u g h p e r h aps not its f irst choice, the decision to f ile a declaratory action in Mississippi was still Pekin’s. The record shows Pekin f iled its M ississippi action

a m onth before its Illinois action was dism issed and two m onths b ef ore the Hintons am ended

1 4their com

plaint to include claim s against P e k i n. Further, the Illinois court noted it was granting d ism issal because Pekin h ad f iled a m otion to voluntarily d ism iss and did n ot object to the Hintons’ and The Sportsm an’s Guide’s m otions to dism iss. ¶33. Regardless of what m otivated Pekin to f ile suit in Mississippi, we cannot perm it Pekin

to take the i nconsistent position that, despite asking a Mississippi f ederal court to declare wh a t r i g h t s and responsibilities it has under the C&S Global Im ports policy , it has not subm itted itself to Mississippi’s jurisdiction over the c overage dispute with the Hintons. Cf. Interpole , 940 F.2d at 23-24. Because Pekin concedes i t sued the Hintons in Mississippi to resolve the coverage d i s p u t e , w e f ind it has subm i tted itself voluntarily to M ississippi’s jurisdiction on that and related issues.

C. Irrelevance of Long-Arm Statute ¶34. Still, Pekin insists the circuit court erred when it relied on Pekin’s declaratory action

to f ind jurisd i ction because f iling a lawsuit in Mississippi does not f it a ny category of activities listed in Miss i s s ippi’s long-arm statute. But under Interpole ’s af f irm ative-relief rule, our long-arm statute is “irrelevant.” Interpole , 940 F.2d at 2 2. P ekin’s im plied consent created an in d

ependent basis f

or jurisdiction. See Marron , 662 F. Supp. 2d at 200 (citing Interpole , 940 F .2d at 2 2 ) ( “Consent provides a basis f or jurisdiction that exists independently of s tatutory rules and, theref ore, the c ourt m ay b y

pass traditional juris d i ctional analy sis under the long-arm statute where, as here, the def endant has v oluntarily subm itted
him self to the j urisdiction of the f orum state.”). In other words, Pekin’s act of f iling suit in

1 5Mississippi f ederal court does not have to f all under one of the three categories of the longarm statute, because the circ u i t court’s exercise of jurisdiction d oes not arise f rom that

statute. Rather, jurisdiction results f rom Pekin waiving any jurisdictiona l d ef ense it otherwise m ay have had when it asked a Mississippi court to enf orce the very

sam e policy

over which Pekin n ow c laim s Mississippi courts have no juri s d i c t ion. Biles , 2011 W L 4014463, at *2. ¶35. W e em

phasize Pek in’s im

plied consent—in contrast to activities t hat f all u nder the long-arm statute—does not subject Pekin to the jurisdiction of Mississippi courts generally

. Rather, Pekin’s consent applies only to claim s involving the sam e p arties and the sam e policy

as its f ederal declaratory action. 7 I d. But both t he Hintons’ claim s against P ekin involve the

sam e policy and coverage dispute. Their declaratory action (Count 12) is t he e x act same claim Pekin brought in i ts f ederal declaratory a c tion. And their t ort claim (Count 1 3) is based

on Pekin’s a lleged m isrepresentation to The Sportsm an’s Guide that C&S Global Im port’s liability policy covered t reestands. So Pekin waived its lack-of -personal- j u risdiction def

ense to both claim s.

7 In In terp o le , th e F irst C ircu it f o u n d p erso n al j u risd ictio n b ecau se th e tw o law su its in v o l v ed th e “sam e tran s actio n ”— th e u n su c cessf u l tran sp o rtatio n o f w o o d en u tility p o les. In terp o le , 9 4 0 F .2 d at 2 3

. I n P r a e to ria n , th e L o u isian a d istrict c o u rt f o u n d p erso n al j u risd ictio n b ecau se th e t w o law s u its “aro se f o r th e [ s am e] n u c leu s o f o p erativ e f acts”— a car accid en t an d t h e e n su in g in su ran ce-co v e rag e d isp u te. P ra eto r i a n , 8 2 9 F

. S u p p . 2 d at 4 6 5

. A n d in B iles , th e M i ssissip p i d istrict co u r t f o u n d p erso n al j u risd ictio n in th e f ed eral law su it b ecau se L o ck w o o d ’ s state law su it h a d i n v o l v ed “th e v ery sam e p o licy [ ] .” B iles , 2011 W L 4014463, at * 2

. 1 6Conclusion

¶36. The c ircuit c ourt p a r t l y based its decision to deny Pekin’s m otion to d ism iss on Pekin’s “willingness t o litigate [ the insurance-coverage issues] i n Mississippi by e lecting to f ile in Mississippi Fed e r a l C ourt.” In other words, t he c ircuit c ourt did not allow Pekin to tak e t h e i n c onsistent position t hat Mississippi was an acceptable f orum f or Pekin as a plaintif f in the coverage dispute with The Sportsm an’s Guide and the Hintons, but not as a def endant. Nor d o we. Because Pekin sued the Hintons and The Sportsm a n’s Guide in Mississippi over the s a m e coverage d ispute, we h old Pekin waived its def ense of lack of personal jurisdiction in this suit. W e af f irm the c ircuit court’s order deny i ng Pekin’s m otion to dism i ss. And we rem and this case to the c ircuit court f o r f urther proceedings consistent with this opinion. ¶37. AFFIRMED AND REMANDED. WALLER, C.J., RANDOLPH, P.J., LAMAR, KING, COLEMAN AND BEAM, JJ., CONCUR. DICKINSON, P.J., AND KITCHENS, J., NOT PARTICIPATING.

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