Allstate Indemnity Company v. Reed

Filing 25

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS as set out, re 8 MOTION to Dismiss filed by Nicky Ardell Reed. The motion to dismiss for lack of subject matter jurisdiction filed by defendant Reed is granted.. Signed by Judge Kristi K. DuBose on 2/29/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLSTATE INDEMNITY COMPANY,
Plaintiff,
vs.
NICKY ARDELL REED,
Defendant.

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Civil Action No. 11-0516-KD-B

ORDER
This action is before the Court on Magistrate Judge Sonja F. Bivins’ Report and
Recommendation in regard to defendant Nicky Ardell Reed’s motion to dismiss and the
objection filed by plaintiff Allstate Indemnity Company (docs. 8, 21, 24). Upon de novo review,
the Court adopts the Report and Recommendation as the opinion of the Court with the following
revision:
On page seven of the Report and Recommendation, the following language is stricken:
Plaintiff has not submitted a copy of a proof of loss claim nor any other document
from Reed containing a demand of $43,000 for personal items.
(doc. 21, p. 7).
It is inconsequential whether the insured has filed a claim for $43,000 for personal
property because the most an insured can recover under the policy for loss of personal property is
$23,813. Thus, it is undisputed that the amount in controversy is no more than $67,213 ($43,400
- claimed actual value of the dwelling - plus $23,813.00 - policy limits for loss of personal
property). In Payne v. State Farm Mut. Auto. In. Co., 266 F. 2d 63 (5th Cir. 1959),1 the court
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Decisions of the former Fifth Circuit rendered prior to the close of business on
September 30, 1981, are binding precedent on the Eleventh Circuit. Bonner v. City of Prichard,
(Continued)
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explained:
The sum a plaintiff claims usually controls the jurisdictional amount. If,
however, it appears to a legal certainty that the claim is for less than the
jurisdictional amount, the complaint should be dismissed. . . .
If there is one situation where the amount of a claim can be determined
with legal certainty, it is in a case when a claim is asserted on an insurance policy
limiting liability. Thus, in Schacker v. Hartford Fire Insurance Company, 1876,
93 U.S. 241, 23 L.Ed. 862, the Court affirmed dismissal of a complaint for lack of
jurisdiction, because of a policy limitation to $1400, although the plaintiff's
allegations of damage satisfied the jurisdictional amount. In Colorado Life Co. v.
Steele, 8 Cir., 1938, 95 F.2d 535, 536, the court looked to the recovery limitations
in the disability clauses of a life insurance policy to determine jurisdictional
amount. What the court said there applies equally well here:
‘If from the nature of the case as stated in the petition there could
not legally be a judgment for an amount necessary to the
jurisdiction, jurisdiction cannot attach even though the damages be
laid * * * at a sum larger than the jurisdictional amount * * *
Therefore, while the prayer here is for an amount far above the
jurisdictional requirement, this court must examine whether it is
legally possible for plaintiff to recover a sum equal to the
jurisdictional amount upon the cause of action alleged in the
petition.'
Payne, at 64-65.
Accordingly, defendant Reed’s motion to dismiss for lack of subject matter jurisdiction is
GRANTED.
DONE this the 29th day of February, 2012.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

Alabama, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

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