Wilson et al v. Chester Bross Construction Company et al

Filing 30

ORDER adopting in part 21 Report and Recommendation and otherwise revising as set out; granting 8 Motion to Remand. This action is remanded to the Circuit Court of Mobile County, Alabama. Signed by Judge Kristi K. DuBose on 4/11/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RAMONA H. WILSON and JOHN C.
WILSON,

:
:

Plaintiffs,
:
vs.

CA 11-0020-KD-C
:

CHESTER BROSS CONSTRUCTION
COMPANY, et al.,
Defendants.

:
:
ORDER

This matter is before the Court on the report and recommendation. (Doc. 21) Upon de
novo review the recommendation is adopted in part and otherwise revised as follows:
FINDINGS OF FACT
1.

On June 7, 2009, a Ford F-250 truck being driven by Larry G. Boden collided into

the rear of a Ford Expedition driven by plaintiff Ramona H. Wilson causing Wilson’s car to
collide with the rear of a camper-trailer being pulled by her husband’s Ford F-150 truck. (Doc. 1,
Exhibit A, COMPLAINT, at ¶¶ 9-11.) As a result of this collision, plaintiffs suffered “serious
injury[.]” (Id. at ¶ 12.)
2.

Plaintiffs filed suit in the Circuit Court of Mobile County, Alabama on June 9,

2010, against Chester Bross, Mark Twain, Larry G. Boden1, ALFA Mutual Insurance Company,2
1

Defendant Bross alleges that plaintiffs have not named Larry Boden as a defendant.
However, the complaint refers to Boden as a defendant and names him in the third cause of
action (although this claim is for negligent hiring).
2

“ALFA MUTUAL INSURANCE COMPANY is a business entity incorporated in the
State of Alabama[.]” (Id. at ¶ 5.)
1

and numerous fictitious parties, for the injuries and damages they have suffered or will suffer as
a result of the above-described collision.
FIRST CAUSE OF ACTION
(Negligence)
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON allege
claims against the Defendants CHESTER BROSS CONSTRUCTION
COMPANY; MARK TWAIN REDI-MIX, INC.; and fictitious defendants 1-100,
individually and jointly, as follows:
14.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
reallege and incorporate by reference all of the allegations contained in the
GENERAL ALLEGATIONS as if set forth fully herein.
15.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that they were directly caused to be injured as a result of the
negligence of the Defendants described herein in one or more of the following
respects:
A.
Negligently colliding into the Ford Expedition driven by
Plaintiff RAMONA H. WILSON at the times and place made the
basis of this action.
B.
Negligently operating the subject Ford F-250 in violation of
the laws of the State of Alabama.
C.
Negligently failing to maintain a proper lookout and/or
maintain adequate stopping distance.
D.
Negligently failing to inspect, maintain, repair, and/or
service the subject Ford F-250.
E.
Negligently failing to adequately train, supervise and/or
monitor its employees in safely operating a commercial vehicle,
automobile and/or truck.
16.
Plaintiffs RAMONA H. WILSON and JOHN C. WILSON further
allege that as a proximate result of the above-described negligence, the Plaintiffs
suffered damage including but not limited to the following:
Plaintiff RAMONA H. WILSON severely injured her neck and back; she
was made sick, sore and lame; she has been caused to undergo medical treatment
and procedures for her injuries and will be caused to undergo further such
treatment and procedures in the future; she was permanently injured; she was
caused to suffer physical pain and mental anguish, still so suffers and will so
suffer in the future; she was caused to incur doctors’ bills, hospital bills and other
2

medical expenses in and about the care and treatment of her injuries and she will
be caused to incur such expenses in the future; her motor vehicle was bent,
smashed, broken and otherwise damaged; she lost the use of said vehicle; and she
was caused to lose wages and income.
Plaintiff JOHN C. WILSON sustained lacerations; he was made sick, sore
and lame; he has been caused to undergo medical treatment and procedures for his
injuries; he was caused to suffer physical pain and mental anguish, still so suffers
and will so suffer in the future; he was caused to incur doctors’ bills, hospital bills
and other medical expenses in and about the care and treatment of his injuries and
he will be caused to incur such expenses in the future; his motor vehicle and
camper-trailer were bent, smashed, broken and otherwise damaged; he lost the use
of said vehicle and said camper-trailer; and he was caused to lose wages and
income.
WHEREFORE, the Plaintiffs RAMONA H. WILSON and JOHN C.
WILSON demand judgment against the Defendants CHESTER BROSS
CONSTRUCTION COMPANY; MARK TWAIN REDI-MIX, INC.; and
fictitious defendants 1-100, individually and jointly, for such sums as the jury
may assess and are recoverable by law.
SECOND CAUSE OF ACTION
(Wantonness)
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON allege
claims against the Defendants CHESTER BROSS CONSTRUCTION
COMPANY; MARK TWAIN REDI-MIX, INC.; and fictitious defendants 1-100,
individually and jointly, as follows:
17.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
reallege and incorporate by reference all of the allegations contained in the
GENERAL ALLEGATIONS as if set forth fully herein.
18.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that they were directly caused to be injured as a result of the
wantonness of the Defendants described herein in one or more of the following
respects:
A.
Wantonly colliding into the Ford Expedition driven by
Plaintiff RAMONA H. WILSON at the times and place made the
basis of this action.
B.
Wantonly operating the subject Ford F-250 in violation of
the laws of the State of Alabama.
C.
Wantonly failing to maintain a proper lookout and/or
maintain adequate stopping distance.
3

D.
Wantonly failing to inspect, maintain, repair, and/or service
the subject Ford F-250.
E.
Wantonly failing to adequately train, supervise and/or
monitor its employees in safely operating a commercial vehicle,
automobile and/or truck.
19.
Plaintiffs RAMONA H. WILSON and JOHN C. WILSON further
allege that as a proximate result of the above-described wantonness, the Plaintiffs
suffered damage including but not limited to the following:
Plaintiff RAMONA H. WILSON severely injured her neck and back; she
was made sick, sore and lame; she has been caused to undergo medical treatment
and procedures for her injuries and will be caused to undergo further such
treatment and procedures in the future; she was permanently injured; she was
caused to suffer physical pain and mental anguish, still so suffers and will so
suffer in the future; she was caused to incur doctors’ bills, hospital bills and other
medical expenses in and about the care and treatment of her injuries and she will
be caused to incur such expenses in the future; her motor vehicle was bent,
smashed, broken and otherwise damaged; she lost the use of said vehicle; and she
was caused to lose wages and income.
Plaintiff JOHN C. WILSON sustained lacerations; he was made sick, sore
and lame; he has been caused to undergo medical treatment and procedures for his
injuries; he was caused to suffer physical pain and mental anguish, still so suffers
and will so suffer in the future; he was caused to incur doctors’ bills, hospital bills
and other medical expenses in and about the care and treatment of his injuries and
he will be caused to incur such expenses in the future; his motor vehicle and
camper-trailer were bent, smashed, broken and otherwise damaged; he lost the use
of said vehicle and said camper-trailer; and he was caused to lose wages and
income.
WHEREFORE, the Plaintiffs RAMONA H. WILSON and JOHN C.
WILSON demand judgment against the Defendants CHESTER BROSS
CONSTRUCTION COMPANY; MARK TWAIN REDI-MIX, INC.; and
fictitious defendants 1-100, individually and jointly, for such sums as the jury
may assess and are recoverable by law, including punitive damages.
THIRD CAUSE OF ACTION
(Negligent and/or Wanton Hiring, Retention, and/or Supervision)
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON allege
claims against the Defendants CHESTER BROSS CONSTRUCTION
COMPANY; MARK TWAIN REDI-MIX, INC.; LARRY G. BODEN; and
fictitious defendants 1-100, individually and jointly, as follows:

4

20.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
reallege and incorporate by reference all of the allegations contained in the
GENERAL ALLEGATIONS and PARAGRAPHS 1-19 as if set forth fully
herein.
21.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that they were directly caused to be injured as a result of the
negligence and/or wantonness of the Defendants described herein in one or more
of the following respects:
A.

Negligently and/or wantonly hiring Larry G. Boden.

B.

Negligently and/or wantonly retaining Larry G. Boden.

C.

Negligently and/or wantonly supervising Larry G. Boden.

22.
Plaintiffs RAMONA H. WILSON and JOHN C. WILSON further
allege that as a proximate result of the above-described negligence and/or
wantonness, the Plaintiffs suffered damage including but not limited to the
following:
Plaintiff RAMONA H. WILSON severely injured her neck and back; she
was made sick, sore and lame; she has been caused to undergo medical treatment
and procedures for her injuries and will be caused to undergo further such
treatment and procedures in the future; she was permanently injured; she was
caused to suffer physical pain and mental anguish, still so suffers and will so
suffer in the future; she was caused to incur doctors’ bills, hospital bills and other
medical expenses in and about the care and treatment of her injuries and she will
be caused to incur such expenses in the future; her motor vehicle was bent,
smashed, broken and otherwise damaged; she lost the use of said vehicle; and she
was caused to lose wages and income.
Plaintiff JOHN C. WILSON sustained lacerations; he was made sick, sore
and lame; he has been caused to undergo medical treatment and procedures for his
injuries; he was caused to suffer physical pain and mental anguish, still so suffers
and will so suffer in the future; he was caused to incur doctors’ bills, hospital bills
and other medical expenses in and about the care and treatment of his injuries and
he will be caused to incur such expenses in the future; his motor vehicle and
camper-trailer were bent, smashed, broken and otherwise damaged; he lost the use
of said vehicle and said camper-trailer; and he was caused to lose wages and
income.
WHEREFORE, the Plaintiffs RAMONA H. WILSON and JOHN C.
WILSON demand judgment against the Defendants CHESTER BROSS
CONSTRUCTION COMPANY; MARK TWAIN REDI-MIX, INC.; and
fictitious defendants 1-100, individually and jointly, for such sums as the jury
may assess and are recoverable by law.
5

FOURTH CAUSE OF ACTION
(Negligent and/or Wanton Entrustment)
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON allege
claims against the Defendants CHESTER BROSS CONSTRUCTION
COMPANY; MARK TWAIN REDI-MIX, INC.; and fictitious defendants 1-100,
individually and jointly, as follows:
23.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
reallege and incorporate by reference all of the allegations contained in the
GENERAL ALLEGATIONS and PARAGRAPHS 1-19 as if set forth fully
herein.
24.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that they were directly caused to be injured as a result of the
negligent and/or wanton entrustment of the Ford F-250 involved in the collision
made the basis of this action to LARRY G. BODEN.
25.
Plaintiffs RAMONA H. WILSON and JOHN C. WILSON further
allege that as a proximate result of the above-described negligence and/or
wantonness, the Plaintiffs suffered damage including but not limited to the
following:
Plaintiff RAMONA H. WILSON severely injured her neck and back; she
was made sick, sore and lame; she has been caused to undergo medical treatment
and procedures for her injuries and will be caused to undergo further such
treatment and procedures in the future; she was permanently injured; she was
caused to suffer physical pain and mental anguish, still so suffers and will so
suffer in the future; she was caused to incur doctors’ bills, hospital bills and other
medical expenses in and about the care and treatment of her injuries and she will
be caused to incur such expenses in the future; her motor vehicle was bent,
smashed, broken and otherwise damaged; she lost the use of said vehicle; and she
was caused to lose wages and income.
Plaintiff JOHN C. WILSON sustained lacerations; he was made sick, sore
and lame; he has been caused to undergo medical treatment and procedures for his
injuries; he was caused to suffer physical pain and mental anguish, still so suffers
and will so suffer in the future; he was caused to incur doctors’ bills, hospital bills
and other medical expenses in and about the care and treatment of his injuries and
he will be caused to incur such expenses in the future; his motor vehicle and
camper-trailer were bent, smashed, broken and otherwise damaged; he lost the use
of said vehicle and said camper-trailer; and he was caused to lose wages and
income.
WHEREFORE, the Plaintiffs RAMONA H. WILSON and JOHN C.
WILSON demand judgment against the Defendants CHESTER BROSS
CONSTRUCTION COMPANY; MARK TWAIN REDI-MIX, INC.; and
6

fictitious defendants 1-100, individually and jointly, for such sums as the jury
may assess and are recoverable by law.
FIFTH CAUSE OF ACTION
(Loss of Consortium)
The Plaintiff JOHN C. WILSON alleges claims against the Defendants
CHESTER BROSS CONSTRUCTION COMPANY; MARK TWAIN REDIMIX, INC.; and fictitious defendants 1-100, individually and jointly, as follows:
26.
The Plaintiff JOHN C. WILSON realleges and incorporates by
reference all of the allegations contained in the GENERAL ALLEGATIONS.
27.
The Plaintiff JOHN C. WILSON further alleges that he was the
[husband] of Ramona H. Wilson at the time of the events made the basis of this
suit and remains so today.
28.
As a proximate consequence of the negligence and/or wantonness
by these Defendants, Plaintiff JOHN C. WILSON was caused to suffer the
following injuries and damages: he was caused to lose the consortium and
services, love and companionship of his wife for some period of time in the past
and will be caused to lose the same services for some period of time in the future;
and he has rendered valuable nursing services to his wife during her period of
convalescence, for which he should be compensated.
WHEREFORE, Plaintiff JOHN C. WILSON demands judgment against
the Defendants CHESTER BROSS CONSTRUCTION COMPANY; MARK
TWAIN REDI-MIX, INC.; and fictitious defendants 1-100, individually and
jointly, for such sums as the jury may assess and are recoverable by law.
SIXTH CAUSE OF ACTION
(UM/UIM COVERAGE)
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON allege
claims against the Defendant ALFA MUTUAL INSURANCE COMPANY and
fictitious defendants 1-100, individually and jointly, as follows:
29.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
reallege and incorporate by reference all of the allegations contained in the
GENERAL ALLEGATIONS and PARAGRAPHS 1-22 as if set forth fully
herein.
30.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that at the times and places made the basis of this Complaint, they
were insureds under the terms and provisions of a policy and/or policies of
insurance issued by Defendant ALFA MUTUAL INSURANCE COMPANY.

7

31.
At the times and places made the basis of this Complaint, said
policy and/or policies of insurance covering Plaintiffs were in full force and
effect. As such, under the terms and provisions of said policy and/or policies of
insurance, the Defendant ALFA MUTUAL INSURANCE COMPANY agreed to
and is obligated to pay all sums which the Plaintiffs would be legally entitled to
recover as damages from the owner or operator of any uninsured and/or underinsured motor vehicle.
32.
At the times and places made the basis of this Complaint,
Defendants CHESTER BROSS CONSTRUCTION COMPANY; MARK
TWAIN REDI-MIX, INC.; and fictitious defendants 1-100, individually and
jointly, were uninsured and/or under-insured motorists within the terms and
provisions of the policy of insurance issued to the Plaintiffs.
33.
The Plaintiffs RAMONA H. WILSON and JOHN C. WILSON
further allege that as of June 2009 they have made demand upon and/or provided
notice to the Defendant ALFA MUTUAL INSURANCE COMPANY to pay the
uninsured and/or under-insured motorist benefits to which they are entitled under
the terms and provisions of said policy and/or policies of insurance.
WHEREFORE, the Plaintiffs RAMONA H. WILSON and JOHN C.
WILSON demand judgment against the Defendant ALFA MUTUAL
INSURANCE COMPANY and fictitious defendants 1-100, individually and
jointly, for such sums as the jury may assess and are recoverable by law.
(Id. at ¶¶ 14-33.)
3.

Chester Boss, Mark Twain, and ALFA were served with the complaint on or

about June 14, 2010 (see Doc. 1, Exhibit A, Notices of Service) and each of these defendants
answer the complaint on either July 13 or 14, 2010 (see id., ANSWERS). In answer to the
complaint, Chester Bross denied any causal relationship between it “and injuries and damages of
Plaintiffs” (Doc. 1, Exhibit A, Answer and Defenses of Chester Bross Construction Company, at
5) and Mark Twain denied that Larry G. Boden was acting within the course or scope of his
employment with it “at all times relevant to the issues raised” in the complaint (Doc. 1, Exhibit
A, Affirmative Defenses and Answer to Complaint, at 1).
4.

On or about August 23, 2010, plaintiff Ramona Wilson responded to Chester

Bross’ first interrogatories and requests for production. (Doc. 11, Exhibit K.) Therein, plaintiff

8

stated that she missed work for five weeks after the accident from June 8-July 13, 2009 when her
pay rate was $343.27 per week and that she missed work for four weeks after her surgery3 from
December 30, 2009 through January 27, 2010 at which time her pay rate was $384.62 per week.
(See id. at 3.)
5.

On or about September 8, 2010, in answer to the plaintiffs’ first set of

interrogatories and requests for production, defendant Chester Bross disclosed that it was
covered by an insurance policy issued by Travelers Insurance Company, Policy No. VTC2JCAP-7163B974-TIL08, the limits of same being $1,000,000 per accident. (See Doc. 11, Exhibits
B-D.) In addition, on or about October 7, 2010, in answer to the plaintiffs’ first set of
interrogatories and requests for production, defendant Mark Twain disclosed that it was covered
by an insurance policy issued by American Family Mutual Insurance Company, the limits of
same for bodily injury and property damage being $1,000,000 each per accident. (See id.,
Exhibits E & F.)
6.

On November 22, 2010, the Custodian of Records for Blue Cross and Blue Shield

of Alabama certified that Blue Cross & Blue Shield of Alabama was asserting a subrogation
claim in the amount of $17,480.30 in this case. (Doc. 11, Exhibit J.)
7.

On December 15, 2010, defendant Alfa filed a motion to opt out of the

proceedings in this case. (Doc. 1, Exhibit B.) This motion was granted by the trial court on
January 3, 2011. (Doc. 1, Exhibit C.)
8.

Defendant Chester Bross filed its notice of removal on January 11, 2011, and

therein made the following argument regarding the amount in controversy4:
3

The surgery performed was a lumbar laminectomy. (See Doc. 12, Exhibit A, at 4.)

4

This is the only relevant issue, plaintiffs agreeing that complete diversity now exists (see Doc.
(Continued)
9

Paragraph thirty-two (32) of the Plaintiffs’ Complaint alleges that
Defendants Chester Bross Construction Company, Mark Twin Redi-Mix, Inc.,
and fictitious 1-100 were “uninsured and/or under-insured motorists.” The
insurance available to Defendant Chester Bross Construction Company is
$1,000,000.00. In addition, the insurance available to Defendant Mark Twain
Redi-Mix, Inc., is $1,000,000.00. Since the Plaintiff has alleged that defendants
Chester Bross and Mark Twin Redi-Mix, Inc., are under-insured, and considering
each defendant has $1,000,000.00 in liability coverage, it is inarguable that the
amount in controversy herein is less than $75,000.00. Through the allegations of
the Plaintiffs’ Complaint, they have affirmatively admitted the amount in
controversy is in excess of $2,000,000.00; therefore, the amount in controversy
exceeds $75,000.00.
In Toole, supra, Judge Thompson looked at the plaintiff’s complaint,
which alleged that the defendants were underinsured although their policy limits
were $100,000. Further, the plaintiff alleged substantial bodily harm, future
surgery for the harm, and lifelong pain and suffering. Here, Plaintiffs allege that
Ramona Wilson:
Severely injured her neck and back; she was made sick, sore and
lame; she has been caused to undergo medical treatment and
procedures for her injuries and she will be caused to undergo
further treatment and procedures in the future; she was
permanently injured; she was caused to suffer physical pain and
mental anguish, still so suffers and will so suffer in the future; she
was caused to incur doctor’s bills, hospital bills and other medical
expenses in and about the care and treatment of her injuries and
she will be caused to incur such expenses in the future; her motor
vehicle [Ford Expedition] was bent, smashed, broken and
otherwise damaged, she lost the use of said vehicle; and she was
caused to lose wages and income.
In addition, Plaintiffs allege that John Wilson:

8, Plaintiffs’ Brief in Support of Motion to Remand, at 2 (“While Plaintiffs do not dispute that the
citizenship of the parties has become diverse, Bross has not satisfied its burden of proving that the
amount in controversy exceeds $75,000.”)) and they make no argument that removal was untimely (see
Doc. 8). Compare North American Sports, Inc., 623 F.3d 1325, 1329 (11th Cir. 2010) (“[T]he timeliness
of removal is a procedural defect-not a jurisdictional one.”) with Sherman v. Sigma Alpha Mu
Fraternity, 128 F.Supp.2d 842, 844 (D. Maryland 2001) (objections based upon a procedural defect are
waived if not raised in a properly-filed motion to remand within the 30-day deadline set forth in §
1447(c)) and 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal
under section 1446(a).”).

10

Sustained lacerations; he was made sick, sore and lame; he has
been caused to undergo medical treatment and procedures for his
injuries; he was caused to suffer physical pain and mental anguish,
still so suffers and will so suffer in the future; he was caused to
incur doctor’s bills, hospital bills and other medical expenses in
and about the care and treatment of his injuries and he will be
caused to incur such expenses in the future; his motor vehicle
[Ford F-150] and camper-trailer were bent, smashed, broken and
otherwise damaged; he lost the use of said vehicle and said
camper-trailer; and he was caused to lose wages and income.
Moreover, Plaintiffs allege that the insurance available to them from the
underlying defendants is insufficient to cover their claims. The insurance
coverage available to each defendant is $1,000,000.00. Thus, although the
underlying defendants in this matter have a total of $2,000,000.00 in insurance
coverage available to satisfy any judgment entered against them, Plaintiffs[’]
Complaint sets forth allegations that the underlying defendants are underinsured.
Following the court’s rationale in Toole, there is a preponderance of evidence that
the amount in controversy in this matter more likely than not exceeds $75,000.
.

.

.

Plaintiffs have named their insurer, ALFA, as a defendant in this matter on
the grounds that [] insurance available to the underlying defendants is insufficient
to cover their damages. ALFA has conditionally opted-out of this litigation. Now
that ALFA has opted-out, it has become a nominal party whose citizenship may
be disregarded for purposes of diversity jurisdiction analysis. Once the Court
disregards the citizenship of ALFA, it is clear that none of the remaining
defendants are citizens of the forum state. Given the allegations in the Plaintiffs’
Complaint, the amount in controversy exceeds the $75,000.00 jurisdictional
minimum. Complete diversity exists between the Plaintiffs and properly joined
defendants and the amount in controversy affirmatively plead to be in excess of
$2,000,000.00.
(Doc. 1, at 7-8 & 8-9 (internal citations omitted.))
9.

Plaintiffs filed their motion to remand on January 25, 2011. (Doc. 8.) Therein,

plaintiffs contend that the removing defendants have not unambiguously established that the
amount in controversy is greater than $75,000, as required by Lowery v. Alabama, 483 F.3d 1184
(11th Cir. 2007). (See Doc. 8.) Plaintiffs contend that they inserted a generally-pled claim for
uninsured/underinsured coverage in their complaint because at the time of filing same they did
11

not know whether defendants had insurance policies effective on the date of the crash which
would provide coverage to the driver to only now have the removing defendants take the position
that anytime such a UM/UIM claim is made and it is proven that liability insurance beyond
$75,000 exists, “then the amount in controversy requirement [is] necessarily satisfied ab initio.”
(Doc. 8, Brief, at 6; see also id. at 4-9.)
10.

Chester Bross filed its response to plaintiffs’ motion to remand on February 10,

2011 (Doc. 11) as did Mark Twain (Doc. 12). The position of Chester Bross is summed up very
succinctly in the last paragraph of its response prior to the conclusion, as follows:
Here, Plaintiffs have alleged severe and permanent injury. Plaintiff
Ramona Wilson has quantifiable damages from the date of the accident until
removal of this action of $51,797.75. Plaintiffs seek additional damages in the
form of future medical expenses, pain, suffering and mental anguish. Plaintiffs
also seek punitive damages. Plaintiffs have maintained their claims for
underinsured motorist benefits despite knowing the defendants are each insured
up to $1,000,000. Moreover, Plaintiffs have refused to stipulate that the amount in
controversy does not exceed the jurisdictional minimum. Defendant submits that
each of the above is sufficient to meet its burden of establishing the jurisdictional
amount. Furthermore, when considered together, it is more likely than not that the
amount in controversy exceeds $75,000 in the present litigation.
(Doc. 11, at 7.) For its part, Mark Twain makes the following arguments: (1) plaintiffs received
notice of at least $2,000,000.00 in coverage prior to filing a UM/UIM claim thereby establishing
that they seek to recover in excess of $75,000 (Doc. 12, at 4-5);5 (2) the position of the
defendants is not illogical both because plaintiffs had knowledge of the $2,000,000 in coverage
prior to filing suit and also because the plaintiffs refuse to stipulate that the amount in
controversy is less than $75,000 (id. at 5); (3) defendants’ arguments are not speculative
inasmuch as plaintiffs had pre-suit knowledge “of at least $1,000,000.00 in coverage[,]” yet still

5

This defendant also points to the fact that plaintiffs did not dismiss their UM/UIM claim even
after the defendants produced their insurance policies during formal discovery. (Id. at 5.)

12

filed suit alleging insufficient coverage (id. at 5-6);6 and (4) plaintiffs fail to properly assert
property damage claims against the defendants but when one combines the average retail of the
2006 Jayco ($20,440.00) and the 2002 Expedition ($8,025.00) with the “$55,000.00 in medical
expenses[,]” the $75,000 threshold is easily met (id. at 7-8).
11.

The plaintiffs’ reply, filed February 18, 2011 (Doc. 17) reads, in relevant part, as

follows:
[I]t is just as readily deducible from the Defendants’ assertions that none
of the potential liability insurance coverage actually applies to Plaintiffs’ claims.
As Mark Twain asserts in its Response, the at-fault driver “was not in the course
and scope of his employment at the time of the accident . . . [and] was not
working that Sunday afternoon.” This issue alone provides an arguable basis for
including a UM/UIM claim in Plaintiffs’ Complaint and demonstrates the critical
flaw in the Defendant’s argument relative to the amount in controversy. . . . Even
as of today, for all the Plaintiffs know, the insurance carriers could be defending
under reservations of rights.
In any event, to extrapolate the amount in controversy from Plaintiffs’
inclusion of a UM/UIM claim requires both assumption and speculation – neither
of which are consistent with Lowery’s requirement that “removal unambiguously
establish federal jurisdiction.”
.

.

.

[T]he Proposed Agreed Order was not even submitted by the Defendants
until after the Defendants removed the case to federal court. The existence of
subject matter jurisdiction is determined at the time of removal. Consequently, the
expiration of the Proposed Agreed Order should not have any bearing on the
Court’s analysis because not only was the expiration ineffective at the time of
removal, but the Order had not even been submitted when the case was removed.
Mark Twain also contends (incorrectly) that, “Plaintiffs request that this
Court set aside its common sense and disregard Plaintiffs’ pre-suit knowledge of
at least $1,000,000.00 in coverage.” This could not be further from the truth. In
fact, to the contrary, Plaintiffs strongly encourage this Court [to] rely on its
common sense. More pointedly, Plaintiffs encourage this Court to rely on its
wealth of experience in dealing not only with the body of law relative to
6

Mark Twain therefore contends that “[t]o disregard the actual knowledge of $1,000,000.00 in
coverage goes far beyond a syllogism or resolving a doubt.” (Id. at 7.)

13

removability, but also its wealth of experience in dealing with liability insurance
carriers who deny coverage under myriad circumstances, including where
employees are allegedly not engaged in the line and scope of their employment at
the time of the underlying event, as Defendants emphasize here. Plaintiffs
respectfully suggest that such a common sense reflection will underscore why a
UM/UIM claim was pleaded so as to protect the Plaintiffs’ interests and why such
a pleading in no way unequivocally establishes the amount in controversy as
required by Lowery.
.

.

.

Plaintiffs’ property insurance carrier resolved all of Plaintiffs’ property
damages claims prior to Mr. and Mrs. Wilson’s filing their action for personal
injuries. Thus, no claims for property damage are being pursued. Certainly,
Plaintiffs’ Complaint makes no such claims. Standing alone, the fact that there are
no property damage claims at issue reveals the inapplicability of Defendant’s
argument on this point. Also inapplicable is the Defendant’s suggestion that the
lack of property damage claims somehow weakens Plaintiffs’ argument that
pleading a UM/UIM claim was a reasonable measure to preserve Plaintiffs’
claims. At the risk of stating the obvious: Since the Plaintiffs successfully
resolved their property damages claims prior to this action being filed, there were
and are no residual property damages claim or claims to now pursue.
.

.

.

In its Response, Chester Bross misstates or mischaracterizes medical
charges related to Mrs. Wilson’s medical care as “past medical expenses.” . . .
This [defendant’s] statement is inaccurate and amounts to a 282% inflation of
what Mrs. Wilson’s medical expenses actually are.
In fact, Mrs. Wilson was and remains insured by Blue Cross Blue Shield
of Alabama. As part of this insurance relationship, Blue Cross Blue Shield has
contractually negotiated the medical charges referenced by Chester Bross such
that the medical expenses actually paid on Mrs. Wilson’s behalf amount to only
$17,096.55. Blue Cross Blue Shield has asserted a subrogation claim for this same
amount . . . which is the true amount of past medical expenses incurred by Mrs.
Wilson.
(Doc. 17, at 3, 4, 4-5, 5-6 & 6 (internal citations omitted.))
CONCLUSIONS OF LAW
A.

Jurisdiction in General.

1.

There can be no doubt but that “[f]ederal courts are courts of limited jurisdiction,

and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties
14

as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. American
Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted); see also Allen v.
Christenberry, 327 F.3d 1290, 1293 (11th Cir.) (“[R]emoval statutes should be construed
narrowly, with doubts resolved against removal.”), cert. denied, 540 U.S. 877, 124 S.Ct. 277,
157 L.Ed.2d 140 (2003); University of South Alabama v. American Tobacco Co., 168 F.3d 405,
411 (11th Cir. 1999) (“Because removal jurisdiction raises significant federalism concerns,
federal courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about
jurisdiction should be resolved in favor of remand to state court.”); see Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994)
(“Federal courts are courts of limited jurisdiction. They possess only that power authorized by
Constitution and statute, which is not to be expanded by judicial decree[.]” (internal citations
omitted)). Moreover, the removing defendants must bear “the burden of demonstrating federal
jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998)
(citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)
(“[T]he party invoking the court’s jurisdiction bears the burden of proving, by a preponderance
of the evidence, facts supporting the existence of federal jurisdiction.”). Stated differently,
because federal courts are courts of limited jurisdiction “[i]t is . . . presumed that a cause lies
outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction[.]” Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675 (internal citations
omitted).
2.

Where, as here, jurisdiction is predicated on diversity of citizenship pursuant to 28

U.S.C. § 1332 (see Doc. 1, at 9-10 (“The Court has original jurisdiction over this matter pursuant
to 28 U.S.C. § 1332 because the non-diverse defendant, Alfa Mutual Insurance Company, has

15

opted out of this litigation and thus [has] become a nominal party whose citizenship may be
disregarded for diversity analysis. There is complete diversity of citizenship between all other
adverse parties. The Plaintiffs have affirmatively alleged that the amount in controversy is in
excess of $2,000,000.00; therefore, the amount in controversy is far beyond the minimum
amount required for diversity jurisdiction.”),7 the removing parties bear the burden of
establishing complete diversity of citizenship, that is, that plaintiffs are diverse from all the
defendants, Triggs, supra, 154 F.3d at 1287 (citation omitted), and, in addition, must establish by
a preponderance of the evidence that the amount in controversy more likely than not exceeds the
$75,000 jurisdictional requirement, Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th
Cir. 1996) (“[W]e hold where a plaintiff has made an unspecified demand for damages in state
court, a removing defendant must prove by a preponderance of the evidence that the amount in
controversy more likely than not exceeds the $[75,000] jurisdictional requirement.”), abrogated
on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
3.

As there is no question but that complete diversity in this matter exists (Doc. 8,

Plaintiffs’ Brief in Support of Motion to Remand, at 2), the undersigned focuses solely upon
whether the removing defendants have established by a preponderance of the evidence that the
amount in controversy in this action exceeds $75,000, exclusive of interest and costs. Prior to
looking at this issue at some length, however, the undersigned briefly considers both paragraphs
of § 1446(b) and how this case came to be removed under the second paragraph of that section.
B.

The First and Second Paragraphs of 28 U.S.C.§ 1446(b).

4.

The procedure for removal of a civil action is governed by § 1446(b) which

7

Federal courts may exercise diversity jurisdiction over all civil actions where the amount in
controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens of
different states. 28 U.S.C. § 1332(a)(1).

16

generally provides, in its first paragraph, that the notice of removal must be filed within 30 days
after service of the initial pleading “setting forth the claim for relief” but also provides, in its
second paragraph, that “[i]f the case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable[.]” 28 U.S.C. §
1446(b).8 Therefore, “the statutory framework provides for a two-pronged analysis for removal,
to-wit: ‘[I]f the case stated by the initial pleading is removable, then notice of removal must be
filed within thirty days from the receipt of the initial pleading by the defendant. . . . [I]f the case
stated by the initial pleading is not removable, then notice of removal must be filed within thirty
days from the receipt of . . . other paper from which the defendant can ascertain that the case is
removable.’” Holloway v. Morrow, 2008 WL 401305, *2 (S.D. Ala. Feb. 11, 2008), quoting
Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). The time limit set forth in §
1446(b) “‘is mandatory and must be strictly applied.’” Id., quoting Clingan v. Celtic Life Ins.
Co., 244 F.Supp.2d 1298, 1302 (M.D. Ala. 2003). In addition, it is clear that “the 30-day removal
period prescribed by § 1446(b) commences running as soon as a defendant is able to ascertain
intelligently that the action is removable.” Id. at *3 (citations omitted); see also Clingan, supra,
8

There are three types of removal under § 1446(b): “In addition to first-paragraph cases like
Pretka, § 1446(b) permits the removal of two other types of cases, both of which are governed by the
statute’s second paragraph. The first type of second-paragraph case (Type 1) is one that initially could
have been removed had the parties possessed the relevant jurisdictional information, but, because the
removability was not initially ascertainable, the defendant could not carry its jurisdictional burden until
a later time. The second type of second-paragraph case (Type 2) is one that originally could not have
been removed because it initially did not satisfy federal jurisdictional requirements, but that later
becomes removable because the nature of the dispute changes. Thus, whereas Type 1 cases have always
been removable but the removability was not initially ascertainable, Type 2 cases shift from
nonremovable to removable in nature.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 n.4
(11th Cir. 2010) (emphasis in original).

17

244 F.Supp.2d at 1302 (“[T]he ‘plain purpose of [the] language [of 28 U.S.C. § 1446(b)] “is to
permit the removal period to begin only after the defendant is able to ascertain intelligently that
the requisites of removability are present.”’”); Moore v. Allstate Indemnity Co., 2006 WL
2730743, *4 (S.D. Ala. Sept. 22, 2006) (“The defendants were not required to remove based
solely on the complaint unless they ‘could have intelligently ascertained that the action was
removable’ before receiving the plaintiff’s discovery response.”).
5.

In Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (2010), a panel of the

Eleventh Circuit reiterated the need for promptness in removal under both paragraphs of §
1446(b) and explained that the road offered for defendants in the second paragraph is not an easy
one to travel particularly since the word “ascertained” in that paragraph is much different from
the language contained in the first paragraph. See id. at 760.
“Setting forth,” the key language of the first paragraph, encompasses a broader
range of information that can trigger a time limit based on notice than would
“ascertained,” the pivotal term in the second paragraph. To “set forth” means to
“publish” or “to give an account or statement of.” “Ascertain” means “to make
certain, exact, or precise” or “to find out or learn with certainty.” The latter, in
contrast to the former, seems to require a greater level of certainty or that the facts
supporting removability be stated unequivocally.
Id., quoting Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002). This language is
important because, as noted in Pretka, it is a reminder to district courts that the first paragraph of
§ 1446(b) provides a much wider entry into federal court than does the second paragraph of that
section. See id. This is, in turn, not only because the first paragraph of § 1446(b) does not
“restrict the type of evidence that a defendant may use to satisfy the jurisdictional requirements
for removal[,]” id. at 771; see also id. at 759 (a removing defendant can offer its “own affidavits
or other evidence to establish federal removal jurisdiction[,]”); id. at 755 & 756 (“The
substantive jurisdictional requirements of removal do not limit the types of evidence that may be
used to satisfy the preponderance of the evidence standard. Defendants may introduce their own
18

affidavits, declarations, or other documentation-provided of course that removal is procedurally
proper. . . . The other circuit courts of appeal that have addressed the issue agree with our circuit
law that defendants may submit a wide range of evidence in order to satisfy the jurisdictional
requirements of removal. . . . No court of appeals decision we could find holds that a defendant
may not submit its own evidence in order to satisfy the jurisdictional requirements of removal,
and we conclude that the defendant can.”); id. at 761 (“Lowery’s ‘receipt from the plaintiff’ rule
has no application to cases, like this one, which are removed under the first paragraph of §
1446(b).”), but, as well, because “the use of deduction, inference, or other extrapolation of the
amount in controversy is [not] impermissible,” id. at 753; see also id. (“A different question is
presented [] when a removing defendant makes specific factual allegations establishing
jurisdiction and can support them (if challenged by the plaintiff or the court) with evidence
combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations.
That kind of reasoning is not akin to conjecture, speculation, or star gazing.”); id. at 770 (“It is
true that ‘[n]othing in Lowery says a district court must suspend reality or shelve common sense
in determining whether the face of a complaint, or other document, establishes the jurisdictional
amount.’ . . . And viewing facts through the lens of common sense is not star gazing.”), and “a
removing defendant is not required to prove the amount in controversy beyond all doubt or to
banish all uncertainty about it.” Id. at 754; see also id. (“The law does not demand perfect
knowledge or depend any less on reasonable inferences and deductions then we all do in
everyday life.”).
6.

The notice of removal filed on January 11, 2011 clearly falls within the purview

of the second paragraph of § 1446(b) because it was not filed within thirty days of service of the
complaint, same having been accomplished on June 14, 2010 (Doc. 1, Exhibit A, Notices of

19

Service). See 28 U.S.C. § 1446(b) (“If the case stated by the initial pleading is not removable, a
notice of removal may be filed within thirty days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable[.]”). This is a secondparagraph removal because ALFA, plaintiffs’ insurer and resident of Alabama, was a named
defendant and the out-of-state defendants had to await a decision by ALFA regarding whether it
would opt-out of the case before removal was possible. See Toole v. Chupp, 456 F.Supp.2d 1218,
1219, 1221 & 1222 (M.D. Ala. 2006) (“‘[A] federal court must disregard nominal or formal
parties and rest jurisdiction only upon the citizenship of real parties to the controversy.’
Therefore, the critical question is whether ALFA is a real party to the controversy presented by
this case or is simply a nominal one. . . . [T]he question for this court is whether any of the above
three exceptions apply to the Tooles’ case, and the answer is that none does. ALFA is not
enforcing this action through subrogation; nor is it ‘defend[ing] itself against a “direct action,”’
that is, ‘one in which “the liability sought to be imposed could be imposed against the insured,”’
or one over ‘its own acts and omissions.’ Instead, it is apparent from the record in this case . . .
that the Tooles named ALFA as a defendant for the sole purpose, as required by Alabama law, of
putting its insurer on notice of the pendency [of] litigation and giving the insurer the opportunity
to participate or opt out. Now that ALFA has opted out (and even has made explicit in its notice
of opt out that it ‘agrees to be bound by the verdict of the jury and agrees to pay any judgment in
accordance with its policy of insurance’), the Tooles and ALFA simply have no dispute between
them at this time. Also, ALFA is not assuming control of, or seeking to control, the litigation;
indeed, the company has opted out of the litigation, agreeing to abide by the outcome of any jury
trial. Thus . . . the liability of the insurance company is entirely ‘contingent and indirect,’ in the

20

sense that Chupp and Bramlett will litigate entirely the issue of fault, upon which any issue
concerning ALFA’s policy is contingent. Moreover, Chupp and Bramlett have secured their own
counsel and retain[] complete control over the action. Therefore, ALFA’s involvement here is
insufficient to take it outside the general rule that ‘[liability insurance companies] are usually not
treated as parties to an action involving their insured.’”); but cf. Hudson v. McGowan, 2010 WL
1416510, *1 (M.D. Ala. April 8, 2010) (though ALFA was a named defendant the nonresident
defendant removed the action within thirty (30) days of service of the complaint on the basis of
diversity jurisdiction and the court determined that ALFA was a nominal party whose citizenship
did not destroy diversity).
C.

Amount in Controversy.

7.

This decidedly second-paragraph case is still informed by the analysis set forth in

Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), cert. denied sub nom. Hanna
Steel Corp. v. Lowery, 553 U.S. 1080, 128 S.Ct. 2877, 171 L.Ed.2d 812 (2008). Compare Roe,
supra, 613 F.3d at 1061 n.4 (“This opinion considers removal only under the first paragraph of
§ 1446(b); it does not address the effect of Lowery . . . on second-paragraph cases.”) and Pretka,
supra, 608 F.3d at 747 (“Lowery was a case that involved the removal procedures in the second
paragraph of 28 U.S.C. § 1446(b), and the decision must be read in that context. While some of
the language of the opinion sweeps more broadly, it is dicta insofar as a § 1446(b) first paragraph
case, like this one, is concerned. While we may consider dicta for its persuasive value, we are not
persuaded to follow Lowery’s dicta about the type of evidence a defendant that removes a case
under the first paragraph of § 1446(b) may use in establishing the requisite amount in
controversy.”) with Brown v. Tanner Medical Center, 2010 WL 3328500, *3 (M.D. Ala. Aug.
23, 2010) (“As this is a second-paragraph Type 1 case, the case is still governed by the analysis

21

outlined in Lowery[.]”) and Jackson v. Litton Loan Servicing, L.P., 2010 WL 3168117, *4 (M.D.
Ala. Aug. 10, 2010) (“Until the Eleventh Circuit changes the rule set forth in Lowery, this Court
will continue to apply it when considering a notice of removal under the second paragraph of
§ 1446(b).”). Lowery requires courts to “review the propriety of removal on the basis of the
removing documents[]” and retain jurisdiction “[i]f the jurisdictional amount is either stated
clearly on the face of the documents before the court, or readily deducible from them,” or
remand if the opposite is true. 483 F.3d at 1211. In other words, the documents received from the
plaintiff by the defendant must “contain an unambiguous9 statement that clearly establishes
federal jurisdiction.” Id. at 1213 n.63 (emphasis supplied; footnote added); see also id. at 12131214 (“[I]n assessing the propriety of removal, the court considers the document received by the
defendant from the plaintiff-be it the initial complaint or a later received paper-and determines
whether that document and the notice of removal unambiguously establish federal jurisdiction.
This inquiry is at the heart of a case, such as the one before us, in which the plaintiffs challenge
removal by filing a timely motion to remand under § 1447(c). In assessing whether removal was
proper in such a case, the district court has before it only the limited universe of evidence
available when the motion is filed-i.e., the notice of removal and accompanying documents.”).
This Court may not “speculate in an attempt to make up for the notice’s failings.” Id. at 1215.
8.

With these principles in mind, the undersigned first considers the defendants’

9

Although courts have been critical of Lowery, see, e.g., SUA Ins. Co. v. Classic Home Builders,
LLC, 2010 WL 4664968, *4 (S.D. Ala. Nov. 17, 2010) (“Lowery’s ‘unambiguously establish’ standard
necessarily is more exacting than a preponderance of the evidence standard, and both of them cannot
simultaneously apply.”), until the Eleventh Circuit wholly revamps Lowery this Court must continue to
insert a square peg into a round hole, see 483 F.3d at 1211 (“Under this approach, jurisdiction is either
evident from the removing documents or remand is appropriate. Significantly, if a defendant can only
carry the burden of establishing jurisdiction under these circumstances, then the defendant could have
satisfied a far higher burden than preponderance of the evidence. Regardless, our precedent compels us
to continue forcing this square peg into a round hole.”).

22

arguments in response to the plaintiffs’ motion to remand which are different from the argument
made in the removal petition (see Docs. 11 & 12) and then considers the argument contained in
the notice of removal (Doc. 1). The undersigned appreciates the defendants to argue in their
memoranda that because they have discovered from plaintiff Ramona Wilson that she has
quantifiable medical expenses and past wages totaling $51,797.75 and she also seeks punitive
damages and damages for future medical expenses, pain, suffering and mental anguish, it is clear
that the amount in controversy exceeds $75,000, exclusive of interest and costs.10 The stumbling
block for the removing defendants is that plaintiffs are entirely correct that Ramona Wilson’s
quantifiable medical expenses are only $17,480.30 (Doc. 11, Exhibit J, Certification of
Custodian of Subrogation Records), not over $48,000 (see Doc. 11, at 4). This is because
defendants have offered no evidence that the Wilsons have become liable for any expenses billed
by Mrs. Wilson’s medical providers in excess of the $17,480.30 paid by Blue Cross and Blue
Shield of Alabama and, therefore, plaintiffs will be limited to recovering only that amount to
which they will become liable to pay, that is, the insurance company’s subrogation total (now
$17,480.30). See Portis v. Wal-Mart Stores East, L.P., 2008 WL 2959879, *8 (S.D. Ala. July 30,
2008) (“It is black-letter law that ‘damages for medical expenses are to be allowed only for
doctor’s and medical bills which the plaintiff has paid or has become obligated to pay. The
general rule is that damages are unrecoverable where the plaintiff has not paid or is not liable for
such items.’” (internal citations omitted)). Therefore, when plaintiffs’ quantifiable medical
expenses ($17,480.30) are added to quantifiable lost wages ($3,254.83), just a little over $20,000
10

Mark Twain’s argument regarding plaintiffs’ failure to properly assert a property damage
claim and offer of evidence regarding the alleged retail value of plaintiffs’ vehicles involved in the
accident (see Doc. 12, at 7-8 & Exhibits D & E) is simply rank speculation and offers this Court no help
in determining the amount in controversy in this action.

23

in quantifiable expenses is rendered. It would be pure speculation and unabashed guesswork on a
scale prohibited by Lowery for this Court to find that plaintiffs’ claims for punitive damages and
damages for future medical expenses, pain, suffering and mental anguish takes the quantifiable
expenses over the $75,000 threshold. See Rae v. Perry, 392 Fed.Appx. 753, 756 (11th Cir. Aug.
16, 2010) (“Viewed objectively, the complaint and supporting documentation filed with the
notice of removal indicate that Rae sought $20,000 in compensatory damages on all counts
together. Perry failed to present evidence that showed by a preponderance of the evidence that
the compensatory and unspecified damages in the complaint, including punitive damages and
attorneys’ fees, alone or combined, met the jurisdictional amount.”); Mapp v. American General
Assurance Co., 589 F.Supp.2d 1257, 1265 (M.D. Ala. 2008) (“Mapp’s complaint does not
specify the total amount of damages sought; the only specific numerical amount he seeks is
$20,000 in compensatory damages. American General appears to argue that, because Mapp also
seeks punitive damages, the $75,000 jurisdictional requirement is satisfied. The only evidence
that American General offers in support is allegedly ‘similar’ cases where Alabama courts have
authorized damage awards greater than the jurisdictional amount. It is questionable ‘whether
such general evidence is ever of much use in establishing the value of claims in any one
particular case,’ because ‘the facts regarding other cases tell us nothing about the value of the
claims’ in the instant case. Such a concern is particularly valid here, where the complaint and
removal documents are not specific enough as to the duration, extent, severity, or kinds of harms
alleged to allow meaningful comparison between this case and the cases that American General
offers. To the extent possible, however, the court has reviewed the cases cited by American
General and concludes that they are not sufficiently factually and legally similar to this case such
that this court can draw any reasonable conclusions from them. Thus, the court finds that

24

American General has failed to carry its burden of proving that the amount-in-controversy
exceeds $75,000, and thus diversity jurisdiction is wanting.” (internal citations omitted)). The
calculations suggested by the removing defendants are based on their own speculation and,
therefore, with respect to the arguments made by Chester Bross and Mark Twain in their
memoranda in opposition to plaintiffs’ motion to remand, the undersigned concludes that the
removing parties have not unambiguously established federal jurisdiction.11
9.

The undersigned now turns to the primary removal argument in this case, set forth

in the removal petition filed by Chester Bross and joined by Mark Twain, which is that plaintiffs’
claim against ALFA for under-insured or uninsured motorist benefits asserted in the complaint-founded on the allegation that Chester Bross and Mark Twain were/are uninsured or underinsured motorists--combined with plaintiffs’ failure to dismiss that claim despite knowledge that
Chester Bross and Mark Twain each have $1,000,000 in liability coverage unambiguously
establishes that the amount in controversy in this action exceeds $75,000.00, exclusive of interest
and costs. (See Doc. 1, at 7-9 & 10)
In response to plaintiffs’ request for identification of all insurance policies under which
an insurance carrier may be liable, defendants Chester Bross and Mark Twain attached insurance
declarations. These declarations each appear to provide up to $1 million in liability coverage for
bodily injury resulting from a hired or borrowed auto accident. Based on this disclosure and the
11

Even if Mark Twain is correct that the plaintiffs’ post-removal refusal to stipulate that they do
not seek more than $75,000 provides “some evidence of the value of the case[,]” Alexander v. Captain
D’s, LLC, 437 F.Supp.2d 1320, 1323 (M.D. Ala. 2006), “standing alone” it certainly does not satisfy the
removing defendants’ “burden of proof on the jurisdictional issue[,]” Williams v. Best Buy Co., Inc., 269
F.3d 1316, 1320 (11th Cir. 2001), nor would it satisfy that burden when combined with the
approximately $20,000 in quantifiable damages, cf. Jackson, supra, 2010 WL 3168117, at *5 (“[T]he
Plaintiffs’ failure to stipulate to an amount has little if any probative value for determining the amount in
controversy. As this Court has previously held, a refusal to stipulate to an amount in controversy in
response to an interrogatory does not result in an admission regarding the amount in controversy.”).

25

fact that plaintiffs continue to pursue their UM/UIM claim, defendants argue that they have
shown an “unambiguous statement that clearly establishes federal jurisdiction.” The undersigned
disagrees.
Under current precedent, plaintiffs are allowed to play a game of hide the amount of
damages claimed in order to avoid federal jurisdiction over their claims. In other words, unless
plaintiffs unambiguously disclose the amount of damages they are seeking, removal under the
second paragraph of section 1446(b) is not possible. The lone “statement” at issue is plaintiffs’
assertion of an UM/UIM claim despite the fact that there may be $2 million available from the
insurance coverage of Chester Bross and Mark Twain. “May” is the operative word; “may” is
not unambiguous. As pointed out by plaintiffs, the insurance of Chester Bross and Mark Twain
may not be available if the insurance companies are defending under a reservation of rights.
Also, the insurance may not provide coverage if Boden was not within the scope of his
employment when the accident occurred. In short, plaintiffs’ effort at hedging their bets is not an
unambiguous statement of the damages sought.
CONCLUSION
Accordingly, the plaintiffs’ motion to remand (Doc. 8) is GRANTED and this action is
remanded to the Circuit Court of Mobile County, Alabama.

DONE this the 11th day of April, 2011.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

26