Dovales v. Williams et al
ORDER granting in part and denying in part 9 Motion to Remand to State Court. Signed by Judge Roy B. Dalton, Jr. on 8/23/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 6:16-cv-1067-Orl-37GJK
This cause is before the Court on the following:
The Court’s Order to Show Cause (Doc. 6), filed June 23, 2016;
Plaintiff’s Motion to Remand, Motion for Fees, and Supporting
Memorandum of Law (Doc. 9), filed June 27, 2016; and
Defendant’s Response to Order to Show Cause and Response in
Opposition to Plaintiff’s Motion to Remand and Incorporated Memorandum
of Law (Doc. 16), filed July 11, 2016.
Upon consideration, the Court finds that: (1) the Motion is due to be granted in part; and
(2) the action is due to be remanded.
Plaintiff originally filed this action in the Circuit Court of the Ninth Judicial Circuit in
and for Orange County, Florida (“State Court”) seeking damages for injuries she
sustained in a May 8, 2015, automobile accident. (See Doc. 2.) Initially, Plaintiff sued both
the tortfeasor—a Ms. Angela Williams (“Ms. Williams”)—and Plaintiff’s automobile
insurer, Defendant Progressive American Insurance Company (“Progressive”). (See id.)
Subsequently, however, Plaintiff entered into a settlement agreement with Ms. Williams
and voluntarily dismissed her from the action. (Doc. 5.) Consequently, the only remaining
claims in the operative Complaint include a claim for benefits (“Coverage Claim”) under
Plaintiff’s underinsured motorist policy (“Policy”) and a claim for bad faith refusal to settle
(“Bad Faith Claim”). (See Doc. 2, ¶¶ 7–41.)
On June 20, 2016, Progressive removed the action to this Court on the basis of
diversity jurisdiction pursuant to 28 U.S.C. § 1332. Upon preliminary review of the Notice
of Removal and the Complaint, the Court ordered Progressive to show cause as to why
the action should not be remanded for lack of subject matter jurisdiction. (Doc. 6 (“Show
Cause Order”).) Importantly, the Court noted its skepticism as to Progressive’s ability to
meet the $75,000 amount-in-controversy requirement. (See id.) First, the Court
underscored the $10,000-per-person Policy limits with respect to the Coverage Claim.
(See id.; see also Doc. 2-1.) Additionally, the Court directed Progressive’s attention to the
Florida Supreme Court’s recent decision in Fridman v. Safeco Ins. Co. of Ill.,
185 So. 3d 1214, 1216 (Fla. 2016), which recognized that the Bad Faith Claim would not
accrue until Plaintiff prevailed in the Coverage Claim. (Doc. 6, p. 3, n.1.) Four days after
the Court issued its Show Cause Order, Plaintiff moved to remand the case back to State
Court. (Doc. 9 (“Motion”).) Progressive timely filed a consolidated response to the Court’s
Show Cause Order and Plaintiff’s Motion. (Doc. 16.) The matter is now ripe for the Court’s
Removal jurisdiction exists where the court would have had original jurisdiction
over the action. 28 U.S.C. § 1441(a). In diversity cases, district courts have original
jurisdiction over cases in which the parties are completely diverse and the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a). The defendant bears the burden of
proving by a preponderance of the evidence that jurisdiction exists, Williams v. Best Buy
Co., 269 F.3d 1316, 1319 (11th Cir. 2001), and “all doubts about jurisdiction should be
resolved in favor of remand to state court.” See Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 411 (11th Cir. 1999).
Courts measure the amount in controversy at the time of removal based on the
face of the complaint, notice of removal, and any other relevant papers. Pretka v. Kolter
City Plaza II, 608 F.3d 744, 751, 754–55 (11th Cir. 2010). “[T]he existence of jurisdiction
should not be divined by looking to the stars.” Lowery v. Ala. Power Co., 483 F.3d 1184,
1215 (11th Cir. 2007).
The Auto Insurance Coverage Summary attached to the Complaint plainly reveals
that Plaintiff’s recovery on the Coverage Claim may not exceed $10,000 under the Policy
limits. (See Doc. 2-1.) Such Policy limits are determinative of the amount in controversy
for jurisdictional purposes. See Payne v. State Farm Mut. Auto. Ins. Co., 266 F.2d 63
(5th Cir. 1959).1 Indeed, although “[t]he sum a plaintiff claims usually controls the
jurisdictional amount,” this general rule is displaced where “it appears to a legal certainty
that the claim is for less than the jurisdictional amount.” See id. at 64.
“If there is one situation where the amount of a claim can be determined with legal
certainty, it is in a case where a claim is asserted on an insurance policy limiting liability.”
All decisions of the Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding precedent in this Circuit. Bonner v. City of Pritchard,
Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
Id.; see also Allstate Indem. Co. v. Reed, No. 11-0516-KD-B, 2012 WL 663975
(S.D. Ala. Feb. 29, 2012). The instant action is such a case. As in Payne, the remaining
claims are asserted against Plaintiff’s insurer only. See 266 F.2d at 65. Moreover, the
only claim that has accrued is the Coverage Claim. Fridman, 185 So. 3d at 1216
(explaining that “a determination of liability and the full extent of damages is a prerequisite
to a bad faith cause of action”). Based on the Policy limits, it is legally impossible for
Plaintiff to recover a sum that exceeds $75,000. As such, “[i]t is a legal certainty, apparent
on the face of the papers, that the [Coverage] [C]laim against [Progressive] . . . does not
meet the jurisdictional amount.” Payne, 266 F.2d at 65.
The Court is unpersuaded by Progressive’s arguments to the contrary. Importantly,
while Plaintiff is undoubtedly entitled to a jury determination as to the full extent of her
damages—even beyond the Policy limits—at trial on her Coverage Claim, she would not
be entitled to recover such an amount unless and until: (1) she prevails on her Coverage
Claim; (2) obtains a verdict in excess of the Policy limits and (3) a determination of bad
faith is made in a subsequent action. Fridman, 185 So. 3d 1214. Simply too many future
contingencies must occur to put any amount above the Policy limits in controversy at this
time. Ergo, the Court finds that Progressive has failed to meet its jurisdictional burden
and that the action is due to be remanded.
Accordingly, it is hereby ORDERED AND ADJUDGED:
Plaintiff’s Motion to Remand, Motion for Fees, and Supporting
Memorandum of Law (Doc. 9) is GRANTED IN PART AND DENIED IN
To the extent that Plaintiff seeks remand of this action to state court,
the Motion is GRANTED.
In all other respects, the Motion is DENIED.
The Clerk is DIRECTED to remand this action to the Circuit Court of the
Ninth Judicial Circuit in and for Orange County, Florida, terminate all
pending motions, and close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on August 23, 2016.
Counsel of Record
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida
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