Tucker et al v. Northbrook Indemnity Company

Filing 7

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 11/7/13. (SAC )

FILED
2013 Nov-07 PM 04:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD TUCKER and PATRICIA
COOPER,

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Plaintiffs,
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v.
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NORTHBROOK INDEMNITY COMPANY, }
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Defendant.
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CIVIL ACTION NO.
2:13-CV-01857-WMA

MEMORANDUM OPINION
Before the court is the motion of plaintiffs, Richard Tucker
and Patricia Cooper, to remand the above entitled consolidated
action to the Alabama state court in which it originated.

For

the reasons that follow, the motion will be granted.
The case was removed to this court by defendant, Northbrook
Indemnity Company, based on the alleged existence of diversity
jurisdiction under 28 U.S.C. § 1332.
Removal (Doc. 1) ¶¶ 15-25.

See Def.’s Notice of

The issue of subject matter

jurisdiction revolves around the requirement in § 1332(a) that
the “matter in controversy exceed[] the sum or value of $75,000,
exclusive of interest and costs.”

There is no dispute about the

fact that the citizenship of the parties is diverse.

Defendant

argues that because the two plaintiffs are husband and wife under
a common law marriage, and because they have an “undivided
interest” in the fruits of the two $50,000 insurance policies at

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issue, their claims can be aggregated to satisfy the amount-incontroversy requirement.

See Def.’s Notice of Removal ¶¶ 20-21.

Plaintiffs respond with the argument that their monetary claims
cannot be aggregated because each makes “separate, individual,
and distinct claims.”

Pls.’ Motion to Remand (Doc. 5) (“Pls.’

Mot.”) at 2.
Plaintiffs’ said counter-argument is totally unnecessary.
The court need not reach the aggregation question because each
plaintiff’s complaint separately satisfies the amount-incontroversy requirement.

As plaintiffs briefly admit in their

alternative argument, id. at 7-9, the amount-in-controversy
requirement includes all possible damages recoverable, including
punitive damages.

See Bell v. Preferred Life Assur. Soc. of

Montgomery, Ala., 320 U.S. 238, 240 (1943) (“[T]he question
remains whether it is apparent to a legal certainty from the
complaint that [plaintiff] could not recover . . . sufficient
punitive damages to make up the requisite [amount-incontroversy].”); Rae v. Perry, 392 F. App'x 753, 755 (11th Cir.
2010) (“Punitive damages must be considered when determining the
jurisdictional amount in controversy in diversity cases.”).

The

“legal certainty” that there could not be sufficient punitive
damages to take the recovery beyond $75,000 is virtually
impossible to demonstrate.

As this court held in Smith v. State

Farm Fire & Casusalty Co., 868 F. Supp. 2d 1333, 1335 (N.D. Ala.
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2012), “[t]he court is willing to go so far as to inform
plaintiffs . . . who want to pursue claims against diverse
parties in a state court seeking unspecified damages of various
kinds, such as punitive damages and emotional distress, [that
they] must in their complaint formally and expressly disclaim any
entitlement to more than $74,999.99, and categorically state that
plaintiff will never accept more.”).
From the very beginning of these actions, both plaintiffs
have claimed not only breach-of-contract for benefits under the
insurance policies, Tucker Compl. ¶ 5(a); Cooper Compl. ¶5(a),
but punitive damages arising from alleged bad faith failure to
pay, Tucker Compl. ¶ 7, Cooper Compl. ¶ 7.

Alabama recognizes

that “[punitive damages] recovery for the tort of an insurer's
bad-faith failure to pay a claim[] appears now with great
frequency.”

Employees' Benefit Ass'n v. Grissett, 732 So. 2d

968, 978 (Ala. 1998).

And while the exact scope of punitive

damages allowed without violating due process remains ever
elusive, the Alabama Supreme Court has “found constitutionally
acceptable ratios ranging from 1:1 to 121:1.”

Id. at 979.

In

this case, the parties agree that the maximum value of the
insurance policies for each plaintiff is $50,000, so that a
punitive award of only 0.5:1 would easily achieve the $75,000
amount-in-controversy requirement.
Because the existence of the over $75,000 amount-in-

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controversy was evident from the moment the complaints were
filed, defendant was required to remove within 30 days of the
service of the complaints.

See 28 U.S.C. § 1446(b)(1) (“[N]otice

of removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based .
. . ”).

The last served complaint in this case was received by

defendant on June 21, 2013.

See Notice of Service, Def.’s Notice

of Removal Ex. 1, at 19-22.

The notice of removal was filed on

October 7, 2013, more than two months past the expiration of the
30 day period.

Defendant erroneously believed that “[t]his

matter was not initially removable because Plaintiffs . . .
initially filed two separate lawsuits,” and because neither case
satisfied the amount-in-controversy requirement.
of Removal ¶ 1.

Def.’s Notice

Defendant alleges that the requisite amount-in-

controversy did not appear until September 7, 2013, when the
Circuit Court of Jefferson County (Bessemer Division)
consolidated the two cases.

See id.

Defendant made this hopeful

assumption despite the straightforward prayers for punitive
damages in both original complaints.

The clear facial

possibility of an award exceeding $75,000 in each case was an
alarm bell.

It triggered the 30 day removal period.

Because defendant failed to remove within 30 days of being

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served with the complaint, as required under 28 U.S.C. § 1446,
removal to this court was improper, and the case must be remanded
to the state court from which it came.

The court will

contemporaneously issue an order consistent with this opinion.
DONE this 7th day of November, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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