McLawhorn v. Geico Indemnity Company

Filing 35

ORDER: McLawhorn's Motion to Remand (Doc. # 24 ) is granted. The Clerk is directed to remand this case to the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. Thereafter, the Clerk shall close the case. Signed by Judge Virginia M. Hernandez Covington on 4/6/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER RAE MCLAWHORN,
on behalf of herself and all
others similarly situated,
Plaintiff,
v.

Case No. 8:17-cv-156-T-33AEP

GEICO INDEMNITY COMPANY,
Defendant.
______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Amber McLawhorn’s Motion to Remand (Doc. # 24), filed on
February

21,

2017.

Defendant

GEICO

Indemnity

Company

responded on April 3, 2017. (Doc. # 34). For the reasons that
follow, the Motion is granted.
I.

Background
McLawhorn purchased a car insurance policy from GEICO in

February of 2012. (Doc. # 2 at ¶ 4). McLawhorn’s policy did
not

include

drivers

are

bodily

injury

required

to

liability

coverage,

carry

Florida’s

by

which

all

Financial

Responsibility Law, nor was the policy’s notice, stating that
the

policy

does

not

provide

1

such

coverage,

in

the

form

required by Section 627.7276, Florida Statutes. (Id. at ¶¶ 9,
32-33). Section 627.7276 states:
(1) An automobile policy that does not contain
coverage for bodily injury and property damage must
be clearly stamped or printed to the effect that
such coverage is not included in the policy in the
following manner:
“THIS POLICY DOES NOT PROVIDE BODILY INJURY AND
PROPERTY DAMAGE LIABILITY INSURANCE OR ANY OTHER
COVERAGE FOR WHICH A SPECIFIC PREMIUM CHARGE IS NOT
MADE, AND DOES NOT COMPLY WITH ANY FINANCIAL
RESPONSIBILITY LAW.”
(2) This legend must appear on the policy
declaration page and on the filing back of the
policy and be printed in a contrasting color from
that used on the policy and in type larger than the
largest type used in the text thereof, as an
overprint or by a rubber stamp impression.
Fla. Stat. § 627.7276. “If GEICO had complied with the notice
requirements under Section 627.7276 . . . [McLawhorn] would
have satisfied her financial responsibility and purchased all
necessary

coverages

to

comply

with

Florida’s

Financial

Responsibility Law.” (Doc. # 2 at ¶ 9).
On May 6, 2013, McLawhorn was in a car accident, in which
the other driver was injured. That driver’s insurance company
is now suing McLawhorn to recover the driver’s medical costs.
(Id. at ¶¶ 6, 8, 10-11). Additionally, McLawhorn’s driver’s
license may be suspended because she did not carry bodily
injury liability coverage in her policy, as required by

2

Florida law. (Id. at ¶ 11). According to McLawhorn, GEICO
unlawfully refused her request that it extend bodily injury
liability coverage to her for the claims of the injured driver
and his insurance company. (Id. at ¶ 10).
McLawhorn initiated this putative class action in state
court on December 16, 2016. (Doc. # 2). In the one-count
Complaint, McLawhorn alleges that GEICO failed to include the
statutorily
insureds

required

whose

notice

policies

in

did

the

not

policies

include

of

bodily

all

its

injury

liability coverage. (Id. at 2). McLawhorn defines the class
as “all those similarly situated persons who have failed to
receive the proper statutory notice from GEICO pursuant to
Section 627.7276, Florida Statutes.” (Id. at ¶ 13).
The Complaint seeks “a determination by this Court as to
the available coverage under the GEICO Policy to determine
whether Plaintiff is entitled to bodily injury liability
coverage as required by Florida’s Financial Responsibility
Law due to GEICO’s failure to comply with the mandatory
requirements of the Notice Statute.” (Id. at ¶ 38). In her
prayer for relief, she also seeks on behalf of herself and
the class members “[a] judgment under Count I declaring the
parties’ respective rights and obligations under Florida law,
and otherwise applicable law, including but not limited to:

3

declaring that GEICO has failed to comply with the notice
requirements under Section 627.7276, Florida Statutes.” (Id.
at 9).
GEICO removed the case to federal court on January 20,
2017, pursuant to the Class Action Fairness Act (CAFA), 28
U.S.C. § 1332(d). (Doc. # 1). On January 24, 2017, the Court
directed GEICO to provide more information about the amount
in controversy (Doc. # 4), to which GEICO responded on January
31, 2017. (Doc. # 12).
Subsequently, McLawhorn filed her Motion to Remand (Doc.
# 24), arguing GEICO has not established by a preponderance
of the evidence that the $5,000,000 amount in controversy
requirement is met. GEICO responded on April 3, 2017. (Doc.
# 34). The Motion is ripe for review.
II.

Legal Standard
As the Eleventh Circuit has explained,
CAFA grants subject matter jurisdiction to federal
district courts over class actions in which (1) any
member of the plaintiff class is a citizen of a
state different from the state of citizenship of
any defendant, (2) the aggregate amount in
controversy exceeds $5 million, and (3) the
proposed plaintiff class contains at least 100
members.

4

S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312,
1315 (11th Cir. 2014)(citing 28 U.S.C. § 1332(d)(2), (5)(6)).
The

Supreme

presumption

Court

attends

clarified

cases

that

invoking

“no

CAFA,

antiremoval

which

Congress

enacted to facilitate adjudication of certain class actions
in federal court.” Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S. Ct. 547, 554 (2014). Still, “when a notice of
removal’s allegations are disputed, the district court must
find by the preponderance of the evidence, that the amount in
controversy exceeds the jurisdictional threshold.” Dudley v.
Eli Lilly & Co., 778 F.3d 909, 912 (11th Cir. 2014)(citation
and internal quotation marks omitted). “A court may rely on
evidence put forward by the removing defendant, as well as
reasonable

inferences

and

deductions

drawn

from

that

evidence, to determine whether the defendant has carried its
burden.” S. Fla. Wellness, Inc., 745 F.3d at 1315 (citing
Pretka v. Kolter City Plaza II, 608 F.3d 744, 753-54 (11th
Cir. 2010)).
“For

amount

in

controversy

purposes,

the

value

of

injunctive or declaratory relief is the ‘value of the object
of

the

litigation’

measured

from

the

plaintiff’s

perspective.” Morrison v. Allstate Indem. Co., 228 F.3d 1255,

5

1268 (11th Cir. 2000)(citation omitted). “Stated another way,
the value of declaratory relief is ‘the monetary value of the
benefit that would flow to the plaintiff if the [relief he is
seeking] were granted.’” S. Fla. Wellness, Inc., 745 F.3d at
1316 (citation omitted). “For CAFA purposes, we aggregate the
claims of individual class members and consider the monetary
value that would flow to the entire class if declaratory
relief were granted.” Id. (citing 28 U.S.C. § 1332(d)(6);
Cappuccitti v. DirecTV, Inc., 623 F.3d 1118, 1122 (11th Cir.
2010); Pretka, 608 F.3d at 772).
While

absolute

certainty

is

neither

attainable

nor

required, the value of declaratory or injunctive relief must
be

“sufficiently

measurable

and

certain”

to

satisfy

the

amount in controversy requirement. Morrison, 228 F.3d at
1269. That requirement is not satisfied if the value of the
equitable relief is “too speculative and immeasurable.” Cohen
v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir. 2000)
(quotation marks omitted); see also Leonard v. Enter. Rent a
Car, 279 F.3d 967, 973 (11th Cir. 2002).
III. Analysis
Only the amount in controversy requirement is at issue
here.

McLawhorn

advances

multiple

arguments

for

why

the

amount in controversy requirement has not been met: (1) the

6

value of her claim for declaratory relief is “immeasurable
and speculative,” especially because only McLawhorn seeks a
declaration

regarding

her

entitlement

to

bodily

injury

liability coverage, (2) GEICO’s calculation “extrapolat[ing]
the number of potential bodily injury claims from the alleged
7,821 collision claims is not based on any evidence,” and (3)
the “claim for attorneys’ fees is too speculative to be
included in the amount in controversy.” (Doc. # 24 at 6-7).
GEICO argues the Complaint seeks a declaration that all
class

members

are

entitled

to

bodily

injury

liability

coverage. Additionally, GEICO submitted the declarations of
two employees in GEICO’s underwriting department, Adrianne
Dimond

and

information

Christopher
relevant

to

M.
the

Smith,
amount

providing
in

further

controversy

calculation. (Doc. # 34-2; Doc. # 34-3).
A.

Speculative Value of the Declaratory Relief

McLawhorn argues the relief from a declaratory judgment
in the class members’ favor “would not be that GEICO would be
required to supply a minimum of $10,000 in bodily injury
benefits to every insured who purchased a policy without
bodily injury coverage.” (Doc. # 24 at 11). “Rather, it would
simply require GEICO to evaluate any bodily injury claims
made

against

its

insureds

during

7

the

class

period

and

determine if any amounts should be paid and, if so, in what
amounts.” (Id.).
McLawhorn emphasizes that the Complaint was drafted to
seek two separate types of declaratory relief, although it
was written as a one count complaint. (Id. at 14-15). In the
body

of

the

Complaint,

McLawhorn

explicitly

seeks

“a

determination by this Court as to the available coverage under
the GEICO Policy to determine whether Plaintiff is entitled
to bodily injury liability coverage as required by Florida’s
Financial Responsibility Law due to GEICO’s failure to comply
with the mandatory requirements of the Notice Statute.” (Doc.
# 2 at ¶ 38)(emphasis added). This language indicates a
declaration is being sought as to the availability of bodily
injury liability coverage only for McLawhorn and the basis of
her separate claim for entitlement to coverage is particular
to McLawhorn’s circumstances. Specifically, McLawhorn was
confused about whether her policy included bodily injury
liability coverage, she would have purchased such coverage if
GEICO had included the statutory notice in the correct format
in her policy’s declaration, and she is now personally liable
for a bodily injury claim that accrued during the class
period.

8

McLawhorn seeks a declaration that she is entitled to
retroactive bodily injury coverage because she hopes to force
GEICO to pay for the claim that was made against her. That
McLawhorn would need to take an extra step — i.e. file another
lawsuit using the declaration — to eventually be reimbursed
by GEICO does not prevent the Court from including the amount
she ultimately seeks to recover when calculating the amount
in controversy. See S. Fla. Wellness, 745 F.3d at 1316-17
(“Although the putative class members might have to take an
extra step or two after obtaining declaratory relief to get
money from Allstate, that does not mean that determining the
amount in controversy exceeds $5 million is too speculative
a task.”).
Furthermore, with respect to the class as a whole,
McLawhorn

seeks

a

declaration

that

GEICO

violated

the

statute, but not that each member is entitled to retroactive
coverage. This conclusion is supported by the prayer for
relief, in which McLawhorn requests relief for herself and
the class members in the form of a judgment simply “declaring
that GEICO has failed to comply with the notice requirements
under Section 627.7276, Florida Statutes.” (Doc. # 2 at 9).
Thus, for class members in a similar situation to McLawhorn’s
(i.e. detrimental reliance and resulting personal liability

9

for another driver’s bodily injury claims), they would need
to take even more steps to turn the declaration that GEICO
violated the law into a ruling that GEICO must provide them
with retroactive coverage and then reimburse them for any
bodily injury claims. Still, this further step does not
prevent the eventual monetary amount they would recover from
being included in the Court’s calculations. S. Fla. Wellness,
745 F.3d at 1316-17.
But, there is a problem. The Court cannot extrapolate
from McLawhorn’s situation that all class members — people
with GEICO policies without bodily injury coverage — were
equally confused about the extent of their coverage. Nor does
the Court know how to estimate the subset of class members
who were both confused about their coverage and who incurred
liability for causing a bodily injury in a collision. Indeed,
the declaration page for McLawhorn’s policy at the time of
the 2013 accident, which McLawhorn discusses in her Complaint
and GEICO attaches as an exhibit to its Motion to Dismiss,
specifies the policy does not include bodily injury coverage,
but not in the exact format depicted in the statute. (Doc. #
20 at 20). Many class members likely chose the policy option
without bodily injury coverage or were otherwise made aware

10

of the lack of coverage by the policy’s notice, despite its
nonconformity with the statute.
Furthermore, even for confused class members, the value
of the declaration requested — that GEICO violated the notice
statute — is speculative for those who did not make a claim
under their policies. If a class member was confused but did
not cause an accident in which the other driver was injured
during his policy period, what is the financial value of a
declaration informing him that GEICO violated the law? See S.
Fla.

Wellness,

Inc.,

745

F.3d

at

1316

(“[T]he

value

of

declaratory relief is ‘the monetary value of the benefit that
would flow to the plaintiff if the [relief he is seeking]
were granted.’” (citation omitted)).
Nor is the Court able to determine the number of class
members who were in accidents for which bodily injury claims
were made against them by the other driver, as McLawhorn was.
While GEICO reports that 7,821 collision claims were filed by
class members during the relevant time period, GEICO does not
indicate the number of these claims that also involved bodily
injuries to the other driver caused by the class members.
(Doc. # 1 at 8; Doc. # 34-2). Many of those claims may have
arisen from minor collisions in which no party suffered an
injury.

11

In an attempt to estimate the amount of reimbursement
that class members might ultimately seek from it, GEICO
provides

information

about

a

different

group

of

its

policyholders — those who purchased the minimum amount of
bodily injury liability coverage. During the relevant time
period, 35,016 bodily injury claims were made based on those
policies, of which GEICO paid out for 23,746. (Doc. # 34-2).
The average amount paid on those claims was $8,657.17. (Id.).
But, this does not help the Court determine the percentage of
collision claims filed by class members that also resulted in
bodily injuries because GEICO does not provide the total
number of collision claims made on the policies with minimum
coverage. Thus, these numbers do not provide the Court with
an idea of how many collision claims typically involve bodily
injury.
“Except

where

Congress

has

granted

federal

courts

exclusive jurisdiction, plaintiffs are the ‘master of the
complaint and are free to avoid federal jurisdiction by
structuring their case to fall short of a requirement of
federal jurisdiction.’” Manley v. Ford Motor Co., 17 F. Supp.
3d 1375, 1379 (N.D. Ga. 2014)(quoting Scimone v. Carnival
Corp., 720 F.3d 876, 882 (11th Cir. 2013)(internal citation
and quotation marks omitted)). McLawhorn has successfully

12

done so here. While the Complaint’s drafting leaves much to
be desired as to the relief sought, a careful review reveals
that

McLawhorn

is

seeking

separate

relief

regarding

the

availability of coverage for her policy in addition to a
general declaration for all class members about the legality
of GEICO’s notice practices.
And, the value of the declaration sought on behalf of
all class members is far more abstract and speculative than
the

mathematical

calculations

propounded

by

GEICO.

The

particular circumstances of each class member will determine
what further relief they might seek and whether they are
entitled to further relief at all. The facts surrounding
McLawhorn’s confusion about the extent of her coverage and
her reliance were available to her, and thus could be outlined
in the Complaint as the basis for additional declaratory
relief. But, the applicability of those facts to other class
members, as well as the total number of class members who
were in accidents resulting in bodily injuries, cannot be
determined on the record before the Court.
B.

Attorney’s Fees

Finally, GEICO argues the projected attorney’s fees for
the entire litigation should be included in the amount in
controversy requirement. (Doc. # 1 at 9; Doc. # 34 at 16).

13

“When a statute authorizes the recovery of attorney's
fees, a reasonable amount of those fees is included in the
amount in controversy.” Morrison, 228 F.3d at 1265. But, only
the attorney’s fees incurred up to the time of removal may be
included

in

the

amount

in

controversy.

See

Miller

Chiropractic & Med. Ctrs., Inc. v. Progressive Select Ins.
Co., No. 8:16-cv-3034-T-33MAP, 2016 WL 6518782, at *2 (M.D.
Fla. Nov. 3, 2016)(noting that there is “‘no reason to deviate
from the general rule that in a removed case the amount in
controversy is determined as of the time of removal,’ to
include

a

estimated

highly
through

speculative
trial”

amount

(citation

of

attorney's

omitted));

see

fees
also

Rogatinsky v. Metro. Life Ins. Co., No. 09-80740-CIV, 2009 WL
3667073,

at

*2

(S.D.

Fla.

Oct.

26,

2009)(“[F]or

jurisdictional purposes, the amount of attorney’s fees are
calculated at the time of removal.”).
GEICO has not provided information about the pre-removal
attorney’s

fees,

and

thus

calculation

of

those

fees

is

speculative. Regardless, this case was removed about one
month

after

it

was

initiated

in

state

court,

and

the

attorney’s fees incurred up to that point would not go a long
way in meeting the $5,000,000 threshold. McLawhorn’s claim

14

for attorney’s fees does not support that the amount in
controversy has been met.
III. Conclusion
The Court finds that GEICO has not established by a
preponderance of the evidence that the amount in controversy
exceeds $5,000,000. The Court therefore may not exercise
jurisdiction pursuant to CAFA. McLawhorn’s Motion to Remand
is granted.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

McLawhorn’s Motion to Remand (Doc. # 24) is GRANTED.

(2)

The Clerk is directed to REMAND this case to the Circuit
Court of the Thirteenth Judicial Circuit in and for
Hillsborough

County,

Florida.

Thereafter,

the

Clerk

shall CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of April, 2017.

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