Pierre v. Government Employees Insurance Company et al
Filing
11
ORDER: The Clerk is directed to REMAND this case to the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. The Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 5/13/2017. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MANNICA PIERRE,
Plaintiff,
v.
Case No. 8:17-cv-1108-T-33JSS
GOVERNMENT EMPLOYEES INSURANCE
COMPANY and PROGRESSIVE AMERICAN
INSURANCE COMPANY,
Defendants.
/
ORDER
This cause comes before the Court upon review of the
file. For the reasons that follow, the Court s u a s p o n t e
remands this action to the Thirteenth Judicial Circuit, in
and for Hillsborough County, Florida pursuant to 28 U.S.C. §
1447(c) because this Court lacks subject matter jurisdiction.
I.
Background
This is an action for damages sustained by Plaintiff
Mannica Pierre in a motor-vehicle accident that occurred on
August 13, 2015. (Doc. # 2 at ¶ 9). Defendant Progressive
American Insurance Company (“Progressive”) removed the
case from the
Hillsborough
Thirteenth
Judicial
Circuit,
in
and
for
County, Florida on May 10, 2017, predicating
jurisdiction on complete diversity of citizenship. (Doc. #
1
1). On May 12, 2017, Defendant Government Employees Insurance
Company (“GEICO”) filed its Notice of Joinder and Consent to
Removal (Doc. # 9) as well as a separate Memorandum of Law in
Support of Removal. (Doc. # 10).
Florida. (Doc. # 1 at ¶ 2).
Pierre is a citizen of
Progressive is incorporated
in Ohio and has its principal place of business in
Ohio.
(Doc.
Maryland
#
with
8
at
in
¶
6).
GEICO
principal
Maryland. (Id. at ¶ 5).
is
in
of
place
incorporated
in
business
The Court therefore finds
that the parties are completely diverse.
II. Amount in Controversy Requirement
A.
Applicable Insurance Policies
When
jurisdiction
citizenship,
28
U.S.C.
is
§
premised
1332(a)
upon
diversity
requires,
among
of
other
things, that “the matter in controversy exceeds the sum or
value
of
“damages
burden
$75,000,
are
of
exclusive
unspecified,
establishing
of
the
the
interest
removing
and
costs.”
party
bears
jurisdictional
amount
If
the
by
a
preponderance of the evidence.” Lowery v. Ala. Power Co., 483
F.3d 1184, 1208 (11th Cir. 2007).
Pierre does not make a specified claim for damages.
(Doc. # 2 at ¶ 1) (generally alleging damages exceeding
$15,000). However, Defendants posit in the Notice of Removal
2
and Memorandum in Support of Removal that the jurisdictional
amount is met because the Complaint makes reference to
a
GEICO
Policy
$100,000
per
addition
to
(#4336087871)
person
a
and
with
$300,000
Progressive
policy
Policy
of
occurrence
per
limits
in
(#904058001)
with
policy limits of $25,000 per person and $50,000 per
occurrence. (Doc. # 1 at ¶¶ 12, 35).
point
out
that
Pierre
claims
Defendants also
to
have
“sustained
significant and permanent loss of an important bodily
function,
significant
disfigurement,
permanent
and
permanent
injuries.
.
scarring
.
to
her
or
jaw,
face, head, neck, back, spine, shoulders, arms, legs,
elbows, joints, muscles, tendons, ligaments, nerves,
soft tissues, and body as a whole.” (Id. at ¶ 10).
She also claims to have suffered depression, anxiety,
aggravation
suffering,
of
a
mental
preexisting
anguish,
condition,
medical
pain
expenses,
and
lost
wages, and a host of other damages. (Id.).
Progressive’s
Notice
of
Removal
states:
“Here,
Plaintiffs clearly seek damages in excess of the minimum
jurisdictional requirements of this Court.” (Doc. # 1 at ¶
3
17). 1
GEICO likewise remarks: “The Complaint alleges
that damages to Plaintiff exceed not only the $10,000
limits
of
$100,000
the
tortfeasor’s
limits
of
policy,
GEICO’s
but
also
uninsured
the
motorist
insurance coverage, in addition to the $25,000 limits
of
Progressive’s
uninsured
motorist
insurance
coverage.” (Doc. # 8 at ¶ 9a).
However, the Court’s evaluation of the Complaint
reveals that Pierre has made no such claim.
of
alleging
policy
that
limits,
respect
to
her
she
GEICO,
damages
has
there
exceed
merely
is
all
alleged
“$100,000
Instead
applicable
that,
in
with
coverage
available to Plaintiff, Mannica Pierre” (Doc. # 2 at
¶ 12) and that with respect to Progressive, there is
“$25,000 in coverage available to Plaintiff, Mannica
Pierre.”
(Id.
at
¶
35)(emphasis
added).
Compare
Hudspeth v. GEICO, 6:16-cv-1960-Orl-41-KRS, 2016 U.S.
Dist. LEXIS 183690, at *10 (M.D. Fla. Dec. 27, 2016)
(amount in controversy satisfied in uninsured motorist
case
when
plaintiff
“alleged
serious
and
ongoing
injuries and damages and Count I of [the] complaint
1
There is only one Plaintiff in this action.
4
clearly demands judgment ‘for the full amount of the
uninsured motorist benefits’ – that is $400,000.”). 2
Pierre’s
Progressive
Complaint
policies
references
and
claims
the
that
GIECO
coverage
and
is
“available” to her, but she does not demand the full
amount of the insurance policies. And, even if she had
demanded that Defendants tender policy limits, such a demand
would
not
automatically
establish
that
the
amount-in-
controversy requirement has been satisfied. See Martins v.
Empire Indem. Ins. Co., No. 08-60004-CIV, 2008 WL 783762, at
*2 (S.D. Fla. Mar. 21, 2008) (stating,“[i]n determining the
amount in controversy in the insurance context,
courts have held that it is the value of the
the
value
of
the
underlying
policy,
numerous
claim,
not
that determines the
amount in controversy.”) (internal quotation marks omitted;
emphasis added).
The
Court’s
review
of
the
file
leads
the
Court
to
conclude there is no basis for determining the amount in
controversy likely exceeds the jurisdictional threshold of
$75,000.00. For instance, although the Complaint makes a
2
Hudspeth was injured when an uninsured motorist negligently
struck Hudspeth as Hudspeth was in a wheelchair lift
attempting to enter her vehicle. 2016 U.S. Dist. LEXIS
183690, at *4.
5
passing reference to “expense of hospitalization,” “medical
expenses,”
and
“out-of-pocket
expenses”
no
specific
procedures or corresponding costs are detailed. (Doc. # 2 at
¶
33).
Similarly,
the
Complaint
indicates
that
Pierre
suffered a “loss of earnings and the ability to earn money”
but there is no information on file regarding whether Pierre
was employed, and if so, how the car accident affected her
wages. (Id.).
The Court is aware that “district courts are permitted
to make reasonable deductions and reasonable inferences and
need not suspend reality or shelve common sense in determining
whether
the
jurisdictional
face
of
amount.”
a
complaint
Keogh
v.
establishes
Clarke
Envtl.
the
Mosquito
Mgmt., Inc., No. 8:12-cv-2874-T-30EAJ, 2013 U.S. Dist. LEXIS
20282, at *4-5 (M.D. Fla. Jan. 17, 2013)(internal citations
omitted).
Using these guidelines, the Court is not convinced
that removal was appropriate in this case. Compare
Kilmer v.
Stryker Corp., No. 5:14-cv-456-Oc-34PRL, 2014 U.S. Dist.
LEXIS 152072, at *8-10 (M.D. Fla. Oct. 27, 2014)(finding that
the jurisdictional threshold was satisfied when past medical
expenses
totaled
$72,792.93,
and
the
record
showed
that
plaintiff experienced pain and suffering associated with a
failed knee replacement after the accident in question); Wilt
6
v. Depositors Ins. Co., No. 6:13-cv-1502-Orl-36KRS, 2013 U.S.
Dist. LEXIS 167890, at n.11 (M.D. Fla. Nov. 6, 2013)(report
and recommendation recommending denial of motion to remand
when plaintiff’s injury caused medical expenses of $58,500,
“require[d] future surgery that will cost in the range of
$100,000, and will require at least $5,000 per year for future
medical care over her remaining life expectancy of 22.4
years.”).
B.
Nebulous Categories of Damages
The
Court
following
recognizes
categories
of
that
damages
Pierre
in
her
has
listed
Complaint,
the
among
others:
Significant and permanent loss of an important bodily
function,
significant
and
permanent
scarring
or
disfigurement, permanent injuries within a reasonable
degree of medical probability, injuries to her jaw,
face, head, neck, back, spine, shoulders, arms, legs,
elbows, joints, muscles, tendons, ligaments, nerves,
soft tissues, and body as a whole; became depressed and
anxious; aggravated any pre-existing condition; suffered
bodily injury and resulting pain and suffering,
disability, disfigurement, mental anguish, loss of
capacity for the enjoyment of life, expense of
hospitalization, medical and nursing care and treatment,
loss of earnings, and loss of ability to earn money;
suffered any non-permanent injuries for which lost
wages, medical expenses and other out-of-pocket expenses
were incurred and not otherwise provided for in the
payment of PIP or insurance related benefits.
Said
losses are either permanent or continuing in nature and
Plaintiff, Mannica Pierre, will suffer the losses in the
future.
7
(Doc. # 2 at ¶ 10).
However, the Court has not been provided
with any information about these broad categories of damages.
And, the manner in which Pierre has described these categories
of damages is so vague and inexact that the Court would be
required to engage in rank speculation to ascribe these
damages with any monetary value.
As noted, Pierre has alleged a loss of the ability to
earn
money,
but
the
Court
has
not
been
supplied
with
information as to whether Pierre is employed and, if so, the
nature of her wages.
Similarly, she seeks redress for
“disability,” and other damages, yet the file before the Court
lacks information (beyond nebulous generalities) to support
these allegations. See Robinson v. Peck, No. 1:14-cv-1628WSD, 2014 U.S. Dist. LEXIS 159198, at *11-12 (N.D. Ga. Nov.
12, 2014)(granting motion to remand in slip and fall action
where plaintiff “allege[d] a generic scattershot list of
unspecified damages,” which included personal injury, pain
and suffering, mental anguish, loss of the capacity for the
enjoyment of life, impaired ability to labor, loss of earning
capacity,
incidental
expenses,
expenses
for
medical
treatment, future medical expenses and permanent injury.).
In addition, because Pierre’s bad faith claims have not
yet accrued, these claims do not add anything to the amount
8
in controversy. Hudspeth, 2016 U.S. Dist. LEXIS 183690,
at *11; see also Gilbert v. State Farm Auto. Ins. Co.,
95
F.
Supp.
claim
3d
does
1358,
not
1365
(“[B]ecause
accrue
until
a
the
bad
faith
underlying
underinsured motorist claim is resolved, the value of
the
bad
faith
claim
is
purely
speculative
and,
as
such, the value of that clam is zero” in the context
of
analyzing
the
threshold.)(citing
$75,000
Marquez
v.
State
jurisdictional
Farm
Auto
Ins.
Co., 6:14-cv-241-Orl-KRS, 2014 U.S. Dist. LEXIS 88714
(M.D. Fla. May 8, 2014)).
In a case such as this, where “plaintiff makes an
unspecified demand for damages in state court, a removing
defendant must prove by a preponderance of the evidence that
the amount in controversy more likely than not exceeds the
. . . jurisdictional requirement.” Roe v. Michelin N. Am.
Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).
As explained
above, Defendants fall short of meeting this burden.
The
Court, finding that it lacks subject matter jurisdiction,
remands this case to state court.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The
Clerk
is
directed
to
9
REMAND
this
case
to
the
Thirteenth Judicial Circuit, in and for Hillsborough
County, Florida.
(2)
The Clerk shall CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of May, 2017.
1
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