Lewis v. Ameriprise Insurance Company et al

Filing 21

ORDER denying 9 Motion to Remand & denying 14 Motion to Strike as set out. Signed by Magistrate Judge Sonja F. Bivins on 10/20/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID LEWIS,
Plaintiff,
vs.
AMERIPRISE INSURANCE COMPANY,
et al.,
Defendants.

:
:
:
:
: CIVIL ACTION NO. 16-00111-B
:
:
:
:
:
ORDER

This case is before the Court on Plaintiff David Lewis’
Motion to Remand (Doc. 9), and Defendants IDS Property Casualty
Insurance Company and Ameriprise Insurance Company’s Motion to
Strike (Doc. 14).

The motions have all been fully briefed, and

the parties agree that they are ripe for resolution.
On

May

20,

2016,

the

parties

consented

to

have

undersigned conduct any and all proceedings in this case.
17).

the
(Doc.

Thus, the action was referred to the undersigned to conduct

all proceedings and order the entry of judgment in accordance
with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
Upon careful consideration of all matters presented, and for the
reasons stated herein, Plaintiff’s Motion to Remand (Doc. 9) is
DENIED.

In addition, for the reasons stated herein, Defendants’

Motion to Strike (Doc. 14) is DENIED.
I.

Motion to Strike
On May 4, 2016, Defendants IDS Property Casualty Insurance

Company

and

Ameriprise

Insurance

Company

(collectively

“the

Ameriprise Defendants” or “Defendants”) filed a Motion to Strike
two separate affidavits attached to Plaintiff’s Motion to Remand
(Docs. 9, 14).

The first affidavit is that of Plaintiff, and the

second affidavit is that of an individual named Taylor T. Perry,
Jr.

(Doc. 9-1, 9-2).

According to Defendants, the affidavits

are offered by Plaintiff in support of his position that he did
not fraudulently join a non-diverse party.

Defendants contend

that

add

Plaintiff’s

affidavit

attempts

to

new

factual

allegations to his complaint and, thus, runs counter to well
established case law on what can be considered on a motion to
remand, and that the Perry affidavit contains hearsay and, thus,
is inadmissible under the Federal Rules of Evidence.

Defendants

thus assert that both affidavits are due to be stricken from the
record.

(Doc. 14 at 2).

Motions to strike are ordinarily governed by Federal Rule of
Civil

Procedure

12(f),

which

provides

that

“[t]he

court

may

strike from a pleading an insufficient defense or any redundant,
immaterial,
added).

impertinent,

or

scandalous

matter.”

(Emphasis

As used in the Federal Rules of Civil Procedure, the

word “pleading” is a term of art that is limited to “(1) a
complaint; (2) an answer to a complaint; (3) an answer to a
counterclaim designated as a counterclaim; (4) an answer to a
crossclaim;

(5)

a

third-party

complaint;

(6)

an

answer

to

a

third-party complaint; and (7) if the court orders one, a reply
to an answer.”

Fed. R. Civ. P. 7(a); see also Southard v. State

Farm Fire & Cas. Co., 2013 U.S. Dist. LEXIS 7283, *19, 2013 WL

2

209224, *7 (S.D. Ga. Jan. 17, 2013) (“[A] motion to strike is not
the proper procedural vehicle to challenge affidavits. . . .
Affidavits are not pleadings.”); Mann v. Darden, 2009 U.S. Dist.
LEXIS

63044,

*1–2,

2009)(“Only

material

subject

a

2009

of

WL

included

motion

to

2019588,

*1

(M.D.

in

a

‘pleading’

strike.

.

.

.

Ala.
may

Motions,

July
be

6,

[the]

briefs

or

memoranda, objections, or affidavits may not be attacked by the
motion to strike.”) (citations omitted).
Because the affidavits in question are not pleadings, the
motion to strike is DENIED.1
II. Motion to Remand
A. Background Facts
Plaintiff, David Lewis (hereinafter “Plaintiff”), commenced
this action in the Circuit Court of Perry County, Alabama, on
February 12, 2016.

(Doc. 1-1 at 7).

Plaintiff

for breach of contract and bad faith
1

asserts claims

against the Ameriprise

Although the Court has denied Defendants’ motion to strike, the
Court will consider Defendants’ arguments in ruling on the
merits of Plaintiff’s motion to remand. See generally Haynes v.
Twin Cedars Youth & Family Servs., Inc., 2012 U.S. Dist. LEXIS
35145, *13-14, 2012 WL 895699, *5 (M.D. Ga. Mar. 15, 2012)(“Both
parties have expended a great deal of time and energy filing
motions to strike, which many courts have described as ‘time
wasters.’ . . . In fact, ‘[u]nless it is clear that the matters
stricken have no possible relationship to the controversy and
may prejudice the other party, motions to strike are generally
disfavored.’ . . . Rather than striking a document or a portion
thereof, it is usually more appropriate to ‘consider a party’s
objections to affidavits which are filed in support of a motion
. . . when ruling on the merits of [the] motion.”) (citations
omitted).

3

Defendants, seeking damages for Defendants’ alleged misconduct
in connection with the denial of coverage under a homeowners
insurance

policy

issued

by

the

Ameriprise

Defendants

Plaintiff on his residence.

(Doc. 1-1 at 10-11).

also

Defendant

asserts

claims

against

Cherise

to

Plaintiff

Williams

for

negligence, wantonness, and breach of fiduciary duty for her
alleged mishandling of the insurance policy application process
on Plaintiff’s behalf.
Specifically,

(Id. at 12-13).

Plaintiff

alleges

in

Count

One

that

the

Ameriprise Defendants entered into an agreement to insure his
home from various hazards, including fire, and then breached
that agreement by denying payment under the policy when fire
totally destroyed his home and its contents.
Count

Two,

Plaintiff

alleges

that

the

(Id. at 10).

Ameriprise

In

Defendants

intentionally and without any reasonably legitimate, arguable,
or debatable reason denied his claim under the policy.
11).

(Id. at

In Count Three, Plaintiff alleges that Defendant Williams

negligently and wantonly provided wrong or improper information
to the Ameriprise Defendants in obtaining the subject insurance
policy

on

his

home,

causing

the

Ameriprise

Defendants

to

“contend that Plaintiff does not have insurance covering his
home for the above described fire loss.”
Four,

Plaintiff

alleges

that

Defendant

(Id. at 12).
Williams

In Count

breached

a

fiduciary duty of trust between herself and Plaintiff, causing
4

Plaintiff “to not be paid for his fire loss.”

(Id. at 13).

On March 14, 2016, the Ameriprise Defendants filed a Notice
of Removal under 28 U.S.C. §§ 1441 and 1446 on the basis of
diversity jurisdiction.

(Doc. 1).

On April 13, 2016, Plaintiff

filed the instant Motion to Remand this action to the Circuit
Court of Perry County, Alabama, alleging that the basis for
federal jurisdiction alleged by Defendants, i.e., diversity of
citizenship under 28 U.S.C. § 1332,

is lacking because both

Plaintiff and Defendant Williams are “residents”2 of the state of
Alabama.

(Doc. 9; Doc. 1-1 at 7).

In the Notice of Removal and in Defendants’ response to
Plaintiff’s Motion to Remand, the Ameriprise Defendants argue
that Defendant Cherise Williams is fraudulently joined in this
action and, thus, that her citizenship should not be considered
for purposes of determining diversity of citizenship.
at 5; Doc. 13).

(Doc. 1

In light of these motions and responses, the

2

The Eleventh Circuit has recognized that “[c]itizenship, not
residence, is the key fact that must be
alleged in the
complaint to establish diversity for a natural person.” Taylor
v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
“For
diversity purposes, a person is a citizen of the state in which
he is domiciled.” Slate v. Shell Oil Co., 444 F. Supp. 2d 1210,
1214 (S.D. Ala. 2006).
“That said, while the two concepts are
analytically distinct, a party’s place of residence is prima
facie evidence of his domicile.” Slate, 444 F. Supp. 2d at 1215
n.9.
In this case, the parties do not dispute that Plaintiff
and Defendant Williams are both domiciled in, and citizens of,
the state of Alabama.

5

Court turns to the question of jurisdiction.
B. Analysis
A

removing

defendant

must

establish

the

propriety

of

removal under 28 U.S.C. § 1441 and, therefore, must establish
the existence of federal jurisdiction.
Life

Ins.

Co.,

410

F.3d

1350,

1353

See Friedman v. New York
(llth

Cir.

2005)

(“[I]n

removal cases, the burden is on the party who sought removal to
demonstrate
omitted).

that

federal

jurisdiction

exists.”)

(citation

Because removal infringes upon state sovereignty and

implicates central concepts of federalism, removal statutes must
be construed narrowly,
remand.
F.3d

See University of S. Ala. v. American Tobacco Co., 168

405,

against

with all doubts resolved in favor of

411

the

(llth

exercise

Cir.
of

1999).

federal

“[T]here

is

jurisdiction,

a

presumption

such

that

all

uncertainties as to removal jurisdiction are to be resolved in
favor of remand.”

Russell Corp. v. American Home Assur. Co.,

264 F.3d 1040, 1050 (11th Cir. 2001).
As noted, supra, this action was removed by the Ameriprise
Defendants pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis
of diversity of citizenship under 28 U.S.C. § 1332.
U.S.C. § 1441(a) provides, in relevant part:
Except as otherwise expressly provided by
Act of Congress, any civil action brought in
a State court of which the district courts
of
the
United
States
have
original
jurisdiction,
may
be
removed
by
the
6

Title 28

defendant or the defendants, to the district
court of the United States for the district
and division embracing the place where such
action is pending.
28

U.S.C.

§

1441(a).

Where

the

alleged

basis

for

federal

jurisdiction is diversity under 28 U.S.C. § 1332, the removing
defendant has the burden of demonstrating that there is (1)
complete

diversity

of

citizenship

controversy greater than $75,000.
also

University

jurisdiction

of

is

South

and

on

an

amount-in-

See 28 U.S.C. § 1332(a); see

Alabama,

predicated

(2)

168

F.3d

diversity

of

at

412

(“Where

citizenship,

all

plaintiffs must be diverse from all defendants.”).3
As discussed, Plaintiff alleges that removal is improper
inasmuch as Plaintiff and Defendant Cherise Williams are both
citizens of the state of Alabama, a fact which, on its face,
destroys

diversity.

Plaintiff

has

Defendant

in

diversity;

The

Ameriprise

fraudulently
this

thus,

case

her

in

joined
an

Defendants
Cherise

effort

citizenship

cannot

to

counter

Williams
defeat

be

that
as

a

complete

considered

for

defendant

has

purposes of determining diversity jurisdiction.
“The

determination

of

whether

3

a

resident

The parties do not dispute that the amount in controversy
requirement has been met, nor do they dispute the timeliness of
Defendants’ removal. The dispute in this case centers solely on
the diversity requirement and whether Defendant Williams has
been fraudulently joined.

7

been

fraudulently

joined

must

be

based

upon

the

plaintiff’s

pleadings at the time of removal, supplemented by any affidavits
and deposition transcripts submitted by the parties.”

Pacheco

de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).
proceeding

appropriate

“for

resolving

a

claim

of

The

fraudulent

joinder is similar to that used for ruling on a motion for
summary

judgment

under

Fed.

R.

Civ.

P.

56(b).”

Crowe

v.

Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (quoting B, Inc.
v. Miller Brewing Co., 663 F.2d 545, 549 n.9 (5th Cir. 1981)).
In

such

a

proceeding,

the

district

court

must

“resolve

questions of fact . . . in favor of the plaintiff.”

all

Cabalceta

v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989).
Additionally, any uncertainties about substantive state law must
be resolved in favor of the Plaintiff.

Crowe, 113 F.3d at 1538.

Under Eleventh Circuit precedent, joinder is fraudulent in
three situations: (1) when there is no possibility that the
plaintiff

can

prove

a

cause

of

action

against

the

resident

defendant; (2) when there is outright fraud in the plaintiff’s
pleading

of

jurisdictional

facts;

and

(3)

when

a

diverse

defendant is joined with a nondiverse defendant as to whom there
is no joint, several or alternative liability and where the
claim against the diverse defendant has no real connection to
the claim against the nondiverse defendant.

See Triggs v. John

Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998); accord
8

Loop v. Allianz Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS
313222009, *10, 2009 WL 981988, *4 (S.D. Ala. 2009).
In the instant case, the Ameriprise Defendants rely on the
first prong of the Triggs analysis and argue that that there is
no possibility that Plaintiff can prove a cause of action for
negligence,
Defendant

wantonness,

Williams.

or

breach

(Doc.

1

at

of

fiduciary

11).

Having

duty

against

reviewed

the

parties’ submissions and the applicable law, the Court agrees
with Defendants.
In his Complaint, Plaintiff alleges that on June 20, 2015,
he

and

whereby

the

Ameriprise

Defendants

Defendants

agreed

hazards, including fire.

to

entered

insure

his

(Doc. 1-1 at 10).

into

an

agreement

home

from

various

However, on August

15, 2015, Plaintiff’s home was totally destroyed by fire, and
the Ameriprise Defendants refused to pay his claim under the
policy because of the negligence and wantonness of Defendant
Cherise Williams in providing “wrong or improper” information to
the Ameriprise Defendants in obtaining the policy.

(Id. at 10-

12).
With

respect

to

Cherise

Williams,

the

complaint

further

alleges that Williams “represented to Plaintiff that she was
knowledgeable and capable of assisting Plaintiff in obtaining
affordable homeowner’s insurance;” (2) that she “was familiar
with the home for which insurance was being purchased and was
9

given

information

negligently

regarding

and/or

the

wantonly

home;”

(3)

provide

wrong

that

she

or

“did

improper

information, without legal authority to do so, to the insurer in
obtaining the policy covering Plaintiff’s home such that the
Defendants

.

.

.

now

contend

that

Plaintiff

does

not

have

insurance covering his home for the above described fire loss”;
and

(4)

that

“[a]

fiduciary

duty

of

trust

existed

between

Plaintiff and Defendant, Cherise Williams,” which she breached,
causing

the

Ameriprise

Defendants

to

deny

Plaintiff’s

claim.

(Doc. 1 at 11; Doc. 1-1 at 8, 12-13) (emphasis added).
Providing
Plaintiff’s
Cherise

background

deposition

Williams

is

to

the

testimony

his

former

in

foregoing
which

long-time

he

allegations
testified

girlfriend

mother of his child, with whom he previously lived.
at 119, 122).

and

is
that
the

(Doc. 1-1

With respect to her involvement in obtaining the

subject insurance policy, Plaintiff testified: “I had my friend
Sharese [Cherise Williams] to call and get proof of insurance
coverage for me.

And when she called Ameriprise, Ameriprise was

the one that called her back and gave her a better deal, and she
set

up

everything.

The

only

thing

application when they mailed it to me.”

I

did

was

sign

(Id. at 124).

the
The

colloquy continues: “Q. Okay so she [Cherise Williams] compared
the two quotes? She got two quotes. A. Yes. Q. And Ameriprise
gave you the better deal? A. Yes. Q. And so you chose them? A.
10

Yes.”

(Id.

at

124-25).

“Q.

Did

you

ask

Sharese

[Cherise

Williams] to check out insurance for you? A. Yes, I did.”

(Id.

at 126). “Did you ever receive a letter from the company before
the loss explaining to you that the policy was going to be
cancelled unless they could come and take pictures and get the
building materials and the layout of your home?

A. I know they

called on the phone and said that it would have been cancelled
if they had – couldn’t come out and do an inspection, meet me
for an inspection.”
telephone

call

(Id. at 127).

regarding

wasn’t made. Okay.

the

“. . . So there was a

cancellation

And Sharese [Cherise]

that? A. She told me about that.”

if

this

inspection

did tell you about

(Id. at 129-30).

According

to Plaintiff, the inspection never took place because he was
“waiting on [the Ameriprise Defendants] to call [him] back to
set up [an inspection].”

(Id. at 130).

These facts are not in

dispute.4

4

Plaintiff also presents the affidavit of Taylor T. Perry, Jr.,
who attests that he was present when David Adamczyk, an
independent
fire
investigator
hired
by
the
Ameriprise
Defendants, and Kristine Best, a previous attorney for the
Ameriprise Defendants, examined Plaintiff under oath about his
insurance claim.
(Doc. 9-2 at 1).
According to Perry, at the
conclusion of the examination, Adamczyk stated that “Cherise
Williams is primarily the person at fault for causing the
contractual issues that [Adamczyk] and the insurer have with
this claim.”
(Id. at 2).
According to Perry, Adamczyk told
Perry that Plaintiff needed to file suit against Cherise
Williams “for not having insurance coverage for this loss,” and
Best agreed. (Id.). Plaintiff also presents his own affidavit
(Continued)
11

The question before the Court then is whether Plaintiff has
stated

even

Williams

an

under

arguable
Alabama

cause

law.

of

action

Plaintiff

against

argues

Defendant

that

Williams

voluntarily assumed a duty to obtain homeowners insurance for
him, that she negligently and wantonly performed that task by
providing

“wrong

Defendants,

and

or

improper

that

her

information”
actions

to

the

proximately

Ameriprise
caused

the

Ameriprise Defendants to deny Plaintiff’s claim under the policy
for his fire loss.
1,

6).

The

(Doc. 1-1 at 12; Doc. 10 at 5-6; Doc. 15 at

Ameriprise

Defendants

counter

that

neither

the

allegations in the complaint nor the evidence before the Court
establishes even the possibility that Cherise Williams’ actions
or

inactions

taken

to

“assist”

Plaintiff

(her

boyfriend)

in

obtaining insurance on his home states a claims for negligence,
wantonness, or breach of fiduciary duty claim under Alabama law.
At the outset, the Court notes that:
For a Plaintiff to present an arguable claim
against
an
in-state
defendant
and,
therefore, to require a case removed to
federal court to be remanded to state court,
the plaintiff need not show that he could
survive in the district court a motion for
summary judgment filed by that in-state

in which he states that he was aware that Defendant Williams had
applied for insurance before and so he believed that she was
capable of finding affordable homeowners insurance for him.
(Doc. 9-1 at 1).

12

defendant.
For a remand, the plaintiff’s
burden is much lighter than that: after
drawing all reasonable inferences from the
record in the plaintiff’s favor and then
resolving all contested issues of fact in
favor of the plaintiff, there need only be
‘a reasonable basis for predicting that the
state law might impose liability on the
facts
involved.’
.
.
.
Because
the
procedures are similar while the substantive
standards
are
very
different,
district
courts must exercise extraordinary care to
avoid jumbling up motions for remand and
motions for summary judgment that come
before them.
In the remand context, the district court’s
authority to look into the ultimate merit of
the plaintiff’s claims must be limited to
checking
for
obviously
fraudulent
or
frivolous claims.
Although we have said
that district courts may look beyond the
face of the complaint, we emphasize that the
district
court
is
to
stop
short
of
adjudicating the merits of cases that do not
appear
readily
to
be
frivolous
or
fraudulent.
Anderson

v.

Allstate

Life

Ins.

Co.,

2001

U.S.

Dist.

LEXIS

2603, *22-23, 2001 WL 228057, *7–8 (S.D. Ala. Feb. 1, 2001)
(emphasis in original).

“In cases such as this where there has

been no discovery as of the time of removal, . . . to block a
fraudulent-joinder

charge

based

on

lack

of

legal

support,

a

plaintiff need only show that [his] claim against a resident
defendant is warranted by existing law or by a nonfrivolous
argument

for

the

extension,

modification,

existing law or the establishment of new law.”

or

reversal

Anderson, 2001

U.S. Dist. LEXIS 2603 at *22-23, 2001 WL 228057 at *8.
13

of

Although

this threshold is low, the Court finds that Plaintiff has failed
to meet it in this case.
The existence and scope of a voluntarily assumed duty is a
matter

for

determination

in

light

of

all

the

facts

and

circumstances involved and is a question of law for the court to
resolve.
2009).

Bryan v. Alabama Power Co., 20 So. 3d 108, 119 (Ala.
Alabama law recognizes that “one who volunteers to act,

though under no duty to do so, is thereafter charged with the
duty of acting with due care and is liable for negligence in
connection

therewith.”

omitted).

Stated

Bryan,

differently,

20

So.

“when

a

3d

at

119

person

(citations

undertakes

an

employment, which requires care and skill, whether for reward or
not,

a

failure

to

exert

the

measure

of

care

and

skill

appropriate to the measure of such employment is negligence for
which an action will lie.” Beasley v. MacDonald Eng’g Co., 249
So. 2d 844, 846 (1971).
In one of the earliest cases recognizing the assumed duty
doctrine,

the

Alabama

Supreme

Court

explained:

“while

a

volunteer is not responsible for the failure of success of the
act done by him, . . . if by undertaking to do it, . . . he
brings about a state of affairs which results in injury that
would not have occurred if he had not made the effort at all, he
is liable.”

H.H. Parker & Bro. v. Hodgson, 55 So. 818, 819

(1911) (holding that “while an excavator on an adjoining lot is
14

not

under

any

obligation

‘to

brace,

underpin,

or

otherwise

protect the walls of buildings on adjoining lands, to keep them
from settling or falling on account of such excavation,’ yet, if
he ‘undertakes to do this, he is liable for failure to use
reasonable skill and care in the performance of the work.’”).
For over one hundred years, the Alabama courts have applied
the assumed duty doctrine in various contexts, as evidenced by
the following cases, see, e.g.: Springhill Hospitals, 5 So. 3d
at 520 (finding as a matter of law that a pharmacist did not
voluntarily undertake a duty of care to a patient and stating
that “the scope of the duty voluntarily undertaken . . . by a
pharmacy is a fact-specific inquiry based on the totality of the
pharmacy’s

communications

with

the

patient

and

the

patient’s

reasonable understanding, based on those communications, of what
the pharmacy has undertaken to provide.”); Bryan, 20 So. 3d at
119 (holding that Alabama Power Company did not assume a duty to
farmers to operate a dam so as to prevent flooding on their
property where there was no evidence of a relationship between
the parties such that the farmers changed the way they used
their

property

in

reliance

on

Alabama

Power

Company’s

activities); Dailey v. City of Birmingham, 378 So. 2d 728, 729
(Ala. 1979) (finding a dispute of fact as to whether the City
voluntarily assumed a duty to protect the public when it began
the construction of a fence next to a ditch and then negligently
15

failed to complete the construction); Parker v. Thyssen Mining
Constr., Inc., 428 So. 2d 615, 618 (Ala. 1983) (finding that an
employer

did

not

assume

a

duty

to

obtain

evidence

for

its

employee, which was needed to enhance the employee’s potential
lawsuit

against

a

third-party);

Dailey

v.

Housing

Auth.

for

Birmingham Dist., 639 So. 2d 1343, 1346 (Ala. 1994) (refusing to
hold that the Housing Authority, “by hiring a security guard and
setting out that guard’s duties and roles, voluntarily assumed
the

duty

to

provide

a

totally

crime-free

environment

for

[plaintiff]. Such a holding would discourage housing authorities
and other landlords from hiring security guards or otherwise
working to protect their tenants from criminal acts.”).
More
doctrine

precisely,
in

the

the

context

Alabama
of

courts

wrongful

insurance,” as alleged here.

have

applied

“failure

to

this

procure

See, e.g., Thompson v. United

Companies Lending Corp., 699 So. 2d 169, 175 (Ala. Civ. App.
1997) (recognizing that “[b]oth a negligent failure and a wanton
failure to procure insurance are actionable under Alabama law”
and holding that a mortgagee voluntarily undertook the duty to
procure insurance coverage for its mortgagor); Timmerman Ins.
Agency, Inc. v. Miller, 229 So. 2d 475, 478 (1969) (holding that
a jury question existed as to whether an insurance agent had
undertaken

the

duty

to

secure

insurance

on

behalf

of

his

customer, the insured, and noting that, in such cases, “a broker
16

or agent is liable for failure to notify the owner that he
cannot obtain insurance.”); Waldon v. Commercial Bank, 281 So.
2d

279,

282–83

(Civ.

App.

1973)

(finding

that

bank/lender

voluntarily undertook duty to procure credit life insurance for
its customer/borrower and stating “[t]he present cause of action
rests . . . on the appellee’s alleged undertaking to secure
credit life insurance for consideration for the joint obligors
on the life of . . . appellant’s husband. Appellant alleges
reliance

upon

such

undertaking.

This

court,

therefore,

concludes that the [allegations] . . . give rise to a duty owed
by appellee to appellant.”).
Having

considered

the

relevant

case

law

at

length,

and

viewing Plaintiff’s allegations and the evidence presented by
the parties in a light most favorable to the Plaintiff, the
Court finds that there is no possibility that a cause of action
for negligent or wanton failure to procure insurance exists in
this case.

First, the Court finds that the cases recognizing

the assumed duty doctrine are inapposite to the circumstances at
issue in the present case.
the

evidence

submitted

by

Here, the allegations, taken with
the

parties,

reflect

a

joint

undertaking in which Cherise Williams, Plaintiff’s girlfriend,
“assist[ed]

Plaintiff

in

obtaining

affordable

homeowner’s

insurance,” including making inquiries to insurance companies on
his

behalf.

(Doc.

1-1

at

8)
17

(emphasis

added).

Plaintiff

describes

his

Williams

“assist[ed]”

including

speaking

obtaining

to

insurance

Plaintiff.
retained

relationship

with

Williams

in

procuring

him

insurance
quotes,

which

(Id. at 124-25).

the

decision-making

companies

as

in

insurance
on

she

one

his

which
(id.),
and

presented

then

behalf

to

It was Plaintiff, however, who
authority

and

chose

between

the

quotes, electing to go with Ameriprise because they gave him the
better

deal.

(Id.).

Ameriprise

then

mailed

Plaintiff

the

insurance application form, and Plaintiff signed the completed
form, providing answers to requested information about his home
and property.

(Id. at 124-25, 145-46).

According to Plaintiff,

Defendant Williams subsequently informed him that the insurance
policy would be cancelled if Plaintiff did not meet with the
Ameriprise

representative

at

his

home

for

an

inspection;

however, the inspection never took place because Plaintiff was
waiting on the Ameriprise Defendants to call him back to set up
an inspection.

(Id. at 127-30).

The instant facts are not analogous to those in which the
Alabama courts have imposed an assumed duty to act, much less an
assumed duty to procure insurance.
broker or a banker.

Williams is not an insurance

She was merely Plaintiff’s girlfriend who

offered to assist him with obtaining insurance on his home.
Although

Plaintiff

alleges

that

Williams

voluntarily

undertook to provide information to the Ameriprise Defendants on
18

his behalf and then performed that duty negligently, Plaintiff
has

failed

“wrong

or

to

establish

improper”

that

Williams’

information

to

actions

the

in

providing

Ameriprise

Defendants

“brought about a state of affairs which result[ed] in injury
that would not have occurred if [she] had not made the effort at
all,” see Hodgson, 55 So. at 819.
given

that

Plaintiff

reserved

This is particularly true

the

control

in

the

joint

undertaking for himself, i.e., he decided which insurance quote
was chosen; he signed the completed application that was given
to the Ameriprise Defendants; and he failed to meet with the
Ameriprise

representatives

for

a

home

inspection

while

fully

aware that his failure to do so would result in cancellation of
the policy.

In sum, Plaintiff’s own allegations and testimony,

viewed in the light most favorable to him, provides no basis for
a

finding

that

Williams

voluntarily

undertook

to

procure

insurance for his home and that he reasonably relied upon such
to his detriment.
Thus, the Court finds that there is no possibility that
Plaintiff can prove a cause of action against Defendant Williams
for negligent or wanton failure to procure insurance on the
facts of this case.
the

parties

have

This finding is buttressed by the fact that
presented

no

Alabama

case

law

imposing

liability under circumstances even remotely analogous to those
presented here, and the Court’s research has not uncovered any
19

such cases.
Last, Plaintiff asserts a claim against Defendant Williams
for breach of her alleged fiduciary duty of trust to him.
1-1 at 13).

(Doc.

While Alabama law recognizes a cause of action for

breach of fiduciary duty, the cases involve vastly different
circumstances than those involved here.

Under Alabama law, the

elements of the tort of breach of fiduciary duty are: “(1) the
existence

of

a

fiduciary

duty

between

the

parties;

(2)

the

breach of that duty; and (3) damages suffered as a result of the
breach.”

Regions Bank v. Lowrey, 101 So. 3d 210, 219 (Ala.

2012) (finding that a bank, serving as trustee, did not breach
its fiduciary duty to beneficiaries of a trust).
courts

have

described

circumstances

in

which

The Alabama
a

relationship may arise as follows:
Such a relationship is one in which one
person
occupies
toward
another
such
a
position
of
adviser
or
counselor
as
reasonably to inspire confidence that he
will act in good faith for the other’s
interests, or when one person has gained the
confidence of another and purports to act or
advise with the other’s interest in mind;
where trust and confidence are reposed by
one person in another who, as a result,
gains an influence or superiority over the
other; and it appears when the circumstances
make it certain the parties do not deal on
equal terms, but, on the one side, there is
an overmastering influence, or, on the
other,
weakness,
dependence,
or
trust,
justifiably reposed; in both an unfair
advantage is possible. It arises in cases in
which confidence is reposed and accepted, or
20

fiduciary

influence acquired, and in all the variety
of relations in which dominion may be
exercised by one person over another.
Power Equip. Co. v. First Alabama Bank, 585 So. 2d 1291, 1297–98
(Ala. 1991) (citations, internal quotation marks, and brackets
omitted).

As discussed above, such are not the circumstances

alleged here.5

Therefore, based on the foregoing authorities,

the Court finds that there

is no possibility that

Plaintiff

could recover against Defendant Williams for an alleged breach
of fiduciary duty.
Accordingly, the Court finds that Cherise Williams’ joinder
in this case is fraudulent, and that the Ameriprise Defendants
properly removed this action from state court.
III. Conclusion
For

the

reasons

discussed

5

herein,

it

is

ORDERED

that

Even banks and insurance agents have been held not to owe a
fiduciary duty to their clients.
See, e.g., Maloof v. John
Hancock Life Ins. Co., 60 So. 3d 263, 274 (Ala. 2010) (“though
cordial and long-standing,” there was no evidence that the
relationship between the insurance agent and the plaintiff was
“anything special or outside the typical salesperson-customer
relationship.”); Nettles v. First Nat. Bank of Birmingham, 388
So. 2d 916, 921 (Ala. 1980) (“Although [the bank] took an active
role in attempting to save [plaintiff’s] Company, the facts
simply do not establish that they assumed control of the
management of the business. Similarly, the fact that [plaintiff]
reposed great confidence in [the bank’s] ability to save his
business
and
the
fact
that
he
acquiesced
in
their
recommendations, ultimately to his financial detriment, does not
serve to establish some special fiduciary relationship which
renders appellees liable for the unfortunate events of this
case.”).

21

Plaintiff’s Motion to Remand (Doc. 9) is DENIED.
for

the

reasons

stated

herein,

Defendants’

In addition,

Motion

to

Strike

(Doc. 14) is DENIED.
DONE this 20th day of October, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22