Bender v. GEICO General Insurance Company

Filing 5

ORDER: This case is remanded for lack of subject-matter jurisdiction. After remand has been effected, the Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 4/17/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRAVIS BENDER,
Plaintiff,
v.

Case No. 8:17-cv-872-T-33TBM

GEICO GENERAL INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
This cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded for lack of
subject-matter jurisdiction.
Discussion
The present action was removed to this Court on April 7,
2017, on the basis of diversity jurisdiction. (Doc. # 1).
Although the action was originally filed in the Fort Myers
Division

of

this

District,

it

was

transferred

to

the

undersigned on April 12, 2017. (Doc. # 4).
When

jurisdiction

is

premised

upon

diversity

of

citizenship, 28 U.S.C. § 1332(a) requires among other things
that “the matter in controversy exceeds the sum or value of
$75,000,

exclusive

jurisdictional

amount

of
is

interest
not

and

costs.”

facially

apparent

If
from

“the
the

complaint, the court should look to the notice of removal and
may require evidence relevant to the amount in controversy at
the time the case was removed.” Williams v. Best Buy Co., 269
F.3d

1316,

unspecified,

1319

(11th

the

Cir.

removing

2001).

party

When

bears

“damages

the

burden

are
of

establishing the jurisdictional amount by a preponderance of
the evidence.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1208
(11th Cir. 2007).
The

Complaint

does

not

state

a

specified

claim

to

damages. (Doc. # 2 at ¶ 20)(stating “[t]his is an action for
damages in excessive of $15,000.00 exclusive of costs and
interest”). In its Notice of Removal, Defendant GEICO General
Insurance Company asserts the amount in controversy exceeds
$75,000 because Bender seeks uninsured/underinsured motorist
coverage in the amount of $20,000, intends to bring a badfaith claim, which is not yet ripe, and may recover reasonable
attorney’s fees under section 627.428, Fla. Stat. (Doc. # 1).
GEICO also attached the declaration of Kenneth M. Oliver,
Esq.,

regarding

declaration

the

states:

estimation
“In

the

of

event

attorney’s

fees.

The

that

matter

is

this

litigated through trial, the attorneys’ fees incurred by
Travis Bender, will, more likely than not, exceed $35,000.”
(Doc. # 1-1 at ¶ 10).

2

“When a statute authorizes the recovery of attorney’s
fees, a reasonable amount of those fees is included in the
amount in controversy.” Morrison v. Allstate Indem. Co., 228
F.3d 1255, 1265 (11th Cir. 2000). However, courts in this
circuit are divided over whether to include the projected
amount of attorney’s fees or only attorney’s fees as of the
time

of

removal.

Some

courts

have

included

estimated

attorney’s fees based on the likely cost of litigating through
trial. See DO Rests., Inc. v. Aspen Specialty Ins. Co., 984
F.

Supp.

estimated

2d

1342,

future

1345-47

attorney’s

(S.D.
fees

Fla.
in

2013)(including
the

amount

in

controversy); Mirras v. Time Ins. Co., 578 F. Supp. 2d 1351,
1352-53 (M.D. Fla. 2008)(finding that anticipated statutory
attorney’s

fees

were

included

in

calculating

amount

in

controversy and the attorney’s fees in that insurance breach
of contract case would likely reach over $28,000, the minimum
needed to surpass $75,000, when combined with compensatory
damages).
But, many other courts have held that only attorney’s
fees accrued up to the time of removal are included in
calculating the amount in controversy. Miller Chiropractic &
Med. Ctrs., Inc. v. Progressive Select Ins. Co., No. 8:16cv-3034-T-33MAP, 2016 WL 6518782, at *2 (M.D. Fla. Nov. 3,

3

2016)(citing Bragg v. Suntrust Bank, No. 8:16-cv-139-T-33TBM,
2016 WL 836692, at *3 (M.D. Fla. Mar. 4, 2016); Keller v.
Jasper Contractors, Inc., No. 8:15-cv-1773-T-23TBM, 2015 U.S.
Dist. LEXIS 106110, at *3 (M.D. Fla. Aug. 12, 2015); Frisher
v.

Lincoln

Benefit

Life

Co.,

No.

13-20268-CIV,

2013

WL

12092525, at *5 (S.D. Fla. Aug. 19, 2013); Lott & Friedland,
P.A. v. Creative Compounds, LLC, No. 10-20052-CIV, 2010 WL
2044889, at *4 (S.D. Fla. Apr. 21, 2010); Rogatinsky v. Metro.
Life Ins. Co., No. 09-80740-CIV, 2009 WL 3667073, at *2 (S.D.
Fla. Oct. 26, 2009); Waltemyer v. Nw. Mut. Life Ins. Co., No.
2:06-cv-597-FtM-29DNF, 2007 WL 419663, at *1-2 (M.D. Fla.
Feb. 2, 2007)). This Court considers the approach taken in
Miller Chiropractic correct and sees “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

highly

speculative

amount

of

attorney’s

fees

estimated through trial. Waltemyer, 2007 WL 419663, at *1-2;
see also Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955,
958

(7th

attorney’s

Cir.
fees

1998).

For

included

jurisdictional
in

the

purposes,

the

amount-in-controversy

calculation are set as of the date of removal.
The declaration submitted by GEICO does not provide an
estimate for the amount of attorney’s fees that have been

4

incurred by Bender at the time of removal. Rather, GEICO only
provides information about the projected total amount of
attorney’s

fees

through

trial

based

on

the

declarant’s

experience. (Doc. # 1-1 at ¶ 10). Therefore, GEICO has not
proven by a preponderance of the evidence that the amountin-controversy requirement has been met.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

This

case

is

remanded

for

lack

of

subject-matter

jurisdiction.
(2)

After remand has been effected, the Clerk shall CLOSE
THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

17th day of April, 2017.

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