McCourt v. Liberty Mutual Insurance Company

Filing 18

ORDER: Plaintiff's Motion for Remand (Dkt. #9) is DENIED. Defendant's Motion to Dismiss First Amended Complaint (Dkt. #11) is DENIED. Count II is hereby ABATED pending the determination of the underlying uninsured motorist claim. Signed by Judge James S. Moody, Jr on 11/19/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CYNTHIA MCCOURT,
Plaintiff,
v.

Case No: 8:14-cv-2675-T-30AEP

LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant.

ORDER
THIS CAUSE comes before the Court upon the Plaintiff’s Motion for Remand (Dkt.
#9), Defendant’s Response in Opposition to the Motion (Dkt. #16), Defendant's Motion to
Dismiss First Amended Complaint and Memorandum of Law (Dkt. #11), and Plaintiff's
Response in Opposition to the Motion (Dkt. #17).
Plaintiff, Cynthia McCourt, was involved in a car accident on August 21, 2013, with
an uninsured motorist, Barabra Labar. Plaintiff filed this action against Ms. Labar and
Defendant, Liberty Mutual Insurance Company in state court. Plaintiff then dropped Ms.
Labar as a defendant and filed a Motion to Amend the Complaint to allege a bad faith cause
of action against Liberty Mutual. Liberty Mutual removed the case to this Court based on
complete diversity of the parties and asserted that the amount in controversy exceeds
$75,000. This Court granted Plaintiff’s Motion to Amend the Complaint, and Plaintiff
filed her Amended Complaint on October 31, 2014.

Plaintiff now seeks remand of this case to state court. She asserts that she has already
received $47,500 from Liberty Mutual as the value it placed on her insurance claim. Liberty
Mutual tendered the payment without prejudice to Plaintiff to pursue an uninsured motorist
claim. Plaintiff does not dispute that there is complete diversity between the parties.
However, she argues that the Court should not consider the payment already made in the
amount of $47,500, personal injury protection coverage in the amount of $10,000, medical
payment coverage in the amount of $5,000 and future medical costs in determining the
amount in controversy. Since her current medical costs are only $18,721.31, she argues
that the case falls far short of the minimum jurisdictional amount.
The Court concludes that Plaintiff’s Motion to Remand should be denied. Plaintiff
asserts in the Amended Complaint that her “losses are either permanent or continuing and
the [she] will suffer the losses in the future.” These losses may include neck surgery and
a total knee replacement as detailed in the Civil Remedy Notice. The policy limits are
$300,000 and yet she alleges that the policy limits are “inadequate to compensate Plaintiff
for the serious and permanent injuries she sustained in the August 21, 2013 collision.” The
Amended Complaint also alleges that the Plaintiff is entitled to recover the full amount of
damages including the amount in excess of the policy limits. Further, the Civil Remedy
Notice included a demand for the full policy limits. Therefore, based on the reasonable
deductions, inferences and extrapolations from the pleadings, it is facially apparent that the
case is removable. See Wilt v. Depositors Ins. Co., No. 6:13-CV-1502-ORL-36, 2013 WL
6195768, at *1 (M.D. Fla. Nov. 26, 2013) (citing Roe v. Michelin N. Am., Inc., 613 F.3d
1058, 1061–62 (11th Cir. 2010)).

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The Court further concludes that the Defendant’s Motion to Dismiss should be
denied. Defendant seeks to dismiss Count II of the Amended Complaint arguing that the
bad faith claim is premature, and therefore the Court should dismiss the claim as opposed
to abating it pending the outcome of the underlying uninsured motorist claim. Florida
courts tend to prefer abatement rather than dismissal when confronted with a premature
bad faith claim. See, e.g., Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005)
(cautioning “that where the coverage and bad faith actions are initiated simultaneously, the
courts should employ existing tools, such as the abatement of actions and in-camera
inspection, to ensure full and fair discovery in both causes of action”); O'Rourke v.
Provident Life & Accident Ins. Co., 48 F.Supp.2d 1383, 1384-85 (S.D.Fla. 1999)
(explaining the trend towards abatement of premature bad faith claims and holding
abatement was an appropriate remedy). See also Gianassi v. State Farm Mut. Auto. Ins.
Co., No. 6:14-CV-1078-ORL-31, 2014 WL 4999443, at *3 (M.D. Fla. Oct. 7, 2014). The
Court agrees with this approach and will therefore abate Count II of the Amended
Complaint.
Upon review and consideration, it is therefore
ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion for Remand (Dkt. #9) is DENIED.

2.

Defendant's Motion to Dismiss First Amended Complaint and Memorandum
of Law (Dkt. #11) is DENIED.

3.

Count II is hereby ABATED pending the determination of the underlying
uninsured motorist claim.

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DONE and ORDERED in Tampa, Florida, this 19th day of November, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2675 remand 9 dismiss 11.docx

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