Tampa Electric Company v. The Travelers Indemnity Company of America et al
Filing
31
ORDER granting 10 Motion to Remand to State Court. See order for details. Signed by Judge Virginia M. Hernandez Covington on 9/7/2017. (KM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMPA ELECTRIC COMPANY,
Plaintiff,
v.
Case No. 8:17-cv-1705-T-33AAS
THE TRAVELERS INDEMNITY
COMPANY OF AMERICA, and
PIPELINE DISTRIBUTION, INC.,
Defendants.
___________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Tampa Electric Company’s (“TECO”) Motion to Remand,
filed on July 28, 2017 (Doc. # 10), Defendant Pipeline
Distribution, Inc.’s (“PDI”) response in opposition, filed on
August 11, 2017 (Doc. # 24), and Defendant The Travelers
Indemnity Company of America, Inc.’s (“Travelers”) response in
opposition, also filed on August 11, 2017 (Doc. # 25).
For
the reasons that follow, the Motion to Remand is GRANTED.
I.
Background
TECO originally filed this action in state court, seeking
declaratory relief and damages based on PDI’s and Travelers’
refusal to defend and indemnify TECO in an underlying action.
(Doc.
#
2).
Invoking
diversity
removed the case to this Court.
jurisdiction,
(Doc. # 1).
Travelers
Although TECO
and PDI are both citizens of Florida, and complete diversity
is
therefore
fraudulently
lacking,
joined
Travelers
and
that
maintains
its
disregarded for diversity purposes.
that
citizenship
PDI
is
can
be
A brief review of the
facts follows.
TECO’s claims against Travelers and PDI arise from a
personal-injury action filed by Mario Santos against TECO,
PDI,
and
two
other
defendants,
Posen
(“Posen”) and Johnson Engineering, Inc.
10).
Construction
Co.
(Doc. # 2 at ¶¶ 2,
Mr. Santos was employed by Posen, which was the prime
contractor on a road expansion project. (Id. at ¶ 11). While
Mr. Santos was operating a mixer, he struck an underground gas
line, which exploded and caused him to suffer severe burns and
permanent injuries.
(Id. at ¶¶ 12, 13, 17).
Mr. Santos
alleged that TECO and PDI were negligent for failing to
properly install, reposition, maintain, and mark the gas line.
(Id. at ¶¶ 15-16).
Before the accident, TECO hired PDI to reposition the gas
line
in
order
construction.
to
allow
Posen
(Id. at ¶ 14).
to
perform
necessary
TECO and PDI entered into a
General Agreement for Contracted Work (“General Agreement”).
(Id. at ¶ 18).
Among other provisions, the General Agreement
required PDI to obtain a commercial general liability policy
and to name TECO as an additional insured on the policy. (Id.
at ¶¶ 18, 20, 69). In addition, the General Agreement included
a hold-harmless provision, which required PDI to defend and
2
indemnify TECO for certain claims, including personal-injury
claims arising from TECO’s sole, contributory, or concurrent
negligence.
(Id. at ¶¶ 18-19; Doc. # 2 at 129-129).
PDI obtained a Commercial Insurance Policy from Travelers
that named TECO as an additional insured (“the Policy”).
(Doc. # 2 at ¶ 1).
In the Santos action, Travelers initially
defended TECO under the Policy pursuant to a reservation of
rights.
(Id. at ¶¶ 22, 25).
Travelers also defended PDI.
(Id. at ¶ 23).
Ultimately, Travelers settled Mr. Santos’s claims against
PDI.
(Id. at ¶ 24).
After the settlement, Mr. Santos filed
a Fifth Amended Complaint, which asserted two negligence
claims against TECO.
(Id. at ¶ 31; Doc. # 1-1 at 173-179).
In contrast to his prior complaint, Mr. Santos did not allege
that PDI was TECO’s agent.
(Id. at ¶ 32).
Based on that change, Travelers withdrew its defense of
TECO. (Id. at ¶¶ 33, 40). In particular, Travelers maintained
that TECO was no longer an “additional insured”
because the
Policy specified that a “person or organization does not
qualify
as
an
additional
insured
with
respect
to
the
independent acts or omissions of such person or organization.”
(Id.
at
¶¶
33,
35;
Doc.
#
1-1
at
181-82).
Travelers
characterized the Fifth Amended Complaint as alleging claims
based on TECO’s independent negligence.
3
(Doc. # 1-1 at 181).
In this action, TECO asserts six claims.
(Doc. # at
¶¶ 43-74). With respect to Travelers, TECO alleges that
Travelers
breached
the
Policy
by
failing
to
defend
and
indemnify TECO in the Santos action (Count I), TECO seeks a
declaratory judgment with respect to Travelers’ duty to defend
and indemnify TECO in the Santos action (Count II), and TECO
alleges that Travelers tortiously interfered with the General
Agreement between TECO and PDI by settling PDI’s claims in the
Santos action.
(Id. at ¶¶ 49-60).
With respect to PDI, TECO alleges that PDI breached the
General Agreement by failing to defend and indemnify TECO in
the Santos action (Count IV), TECO alleges that PDI breached
the General Agreement by failing to procure insurance for TECO
(Count V), and TECO seeks contribution in the Santos action,
pursuant to Fla. Stat. § 768.31 (Count VI).
(Doc. # 2 at
¶¶ 61-74).
While the case was still pending in state court, PDI
filed a Motion to Dismiss TECO’s Complaint on July 17, 2017.
(Doc. # 3). That same day, Travelers removed the case to this
Court, with PDI’s consent. (Doc. # 1). On July 28, 2017, TECO
filed the instant Motion to Remand.
(Doc. # 10).
On July 31,
2017, PDI filed a memorandum of law in support of its Motion
to Dismiss.
(Doc. # 14).
On August 7, 2017, the Court
granted TECO’s motion to stay consideration of PDI’s Motion to
4
Dismiss pending a decision on TECO’s Motion to Remand.
(Doc.
## 12, 23).
On August 11, 2017, PDI and Travelers filed separate
responses in opposition to the Motion to Remand. (Doc. ## 24,
25).
II.
Accordingly, the Motion to Remand is ripe for review.
Discussion
As a general rule, a civil action filed in state court
may be removed by a defendant to federal district court if the
federal court possesses original jurisdiction.
§ 1441(a).
28 U.S.C.
Travelers removed this action pursuant to 28
U.S.C. § 1332(a), which confers diversity jurisdiction when an
action is between citizens of different states and the amount
in controversy exceeds $75,000.
“Diversity jurisdiction
requires complete diversity; every plaintiff must be diverse
from every defendant.” Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998).
The parties agree that TECO is a Florida corporation with
its principal place of business in Florida, that Travelers is
a Connecticut corporation with its principal place of business
in Connecticut, and that PDI is a Florida corporation with its
principal place of business in Florida.
Doc. # 1 at ¶¶ 1-3).
(Doc. # 2 at ¶¶ 4-6;
Therefore, for diversity purposes, TECO
is a Florida citizen, Travelers is a Connecticut citizen, and
PDI
is
a
Florida
citizen.
28
5
U.S.C.
§
1332(c)(1)
(“a
corporation shall be deemed to be a citizen of every State and
foreign state by which it has been incorporated and of the
State or foreign state where it has its principal place of
business”).
Travelers concedes in the Notice of Removal that complete
diversity is lacking because TECO and PDI are both Florida
citizens.
§
(Doc. # 1 at ¶ 1).
1441(b)(2)
prohibits
removal
In addition, 28 U.S.C.
when
a
properly-served
defendant is a citizen of the state in which the action is
filed, as PDI is here.
Nonetheless, Travelers maintains that
removal was proper because PDI was fraudulently joined as a
party-defendant.
(Doc. # 1 at ¶¶ 1, 6-7).
The judicially-created doctrine of fraudulent joinder
provides an exception to the requirement of complete diversity
and to the forum-defendant rule in 28 U.S.C. § 1441(b)(2).
Triggs, 154 F.3d at 1287; Cabalceta v. Standard Fruit Co., 883
F.2d 1553, 1561 (11th Cir. 1989).
Fraudulent joinder may be
found in three situations: (1) “when there is no possibility
that plaintiff can prove the claims against the resident [or
non-diverse] defendant,” (2) “when there is outright fraud in
the pleading of jurisdictional facts,” and (3) when “a diverse
defendant is joined with a nondiverse defendant as to whom
there is no joint, several or alternative liability and where
the claim against the diverse defendant has no real connection
6
to the claim against the nondiverse defendant.”
Triggs, 154
F.3d at 1287.
In this case, Travelers asserts that the first and third
theories apply, which are addressed in turn below. (Doc. # 25
at 2-3).
As the removing party, Travelers bears the “heavy”
burden of establishing fraudulent joinder.
113 F.3d 1536, 1538 (11th Cir. 1997).
Crowe v. Coleman,
The Court “evaluate[s]
the factual allegations in the light most favorable to the
plaintiff and must resolve any uncertainties about state
substantive law in favor of the plaintiff.”
A.
Id.
TECO possesses a possible cause of action against PDI
In order to demonstrate fraudulent joinder under the
first theory, Travelers must establish by clear and convincing
evidence that “there is no possibility [TECO] can establish a
cause of action against [PDI].” Henderson v. Wash. Nat’l Ins.
Co., 454 F.3d 1278, 1281 (11th Cir. 2006). Conversely, remand
is
warranted
if
there
exists
“a
reasonable
basis
for
predicting that the state law might impose liability on the
facts involved.”
original).
Crowe, 113 F.3d at 1542 (emphasis in
The potential for liability “must be reasonable,
not merely theoretical.”
Legg v. Wyeth, 428 F.3d 1317, 1325
n.5 (11th Cir. 2005).
Because PDI is the non-diverse and forum defendant, the
relevant issue is whether TECO possesses a possible claim
7
against PDI. As explained below, PDI is potentially liable on
the breach-of-contract claim in Count IV of the Complaint.
Therefore, the Court does not evaluate TECO’s possibility of
success on Counts V and VI.
Cabalceta, 883 F.2d at 1561
(explaining that the issue is whether “the plaintiff can
establish any cause of action against the resident defendant”)
(emphasis added)).
Under
Florida
law,
a
claim
for
breach
of
contract
requires (1) a valid contract, (2) a material breach, and
(3) damages.
Abbott Labs., Inc. v. Gen. Elec. Capital, 765
So. 2d 737, 740 (Fla. 5th DCA 2000).
TECO alleges that PDI
breached the General Agreement’s hold-harmless provision by
failing
to
defend
and
personal-injury claims.
indemnify
TECO
for
Mr.
Santos’s
(Doc. # 1 at ¶¶ 62, 64, 65).
TECO
maintains that PDI’s obligations extended to claims based on
TECO’s sole, contributory, and concurrent negligence. (Id. at
¶ 63).
In response to the Motion to Remand, Travelers argues
that there is no possibility of success on this claim for the
reasons stated in PDI’s response in opposition, as well as in
PDI’s Motion to Dismiss the Complaint.
(Doc. # 25 at 8, 13-
14). Although the Motion to Dismiss is currently not at issue
— and the Court expresses no opinion as to its merits — the
Court will consider PDI’s arguments in assessing whether TECO
has a possible claim.
8
PDI first argues that Count IV fails as a matter of law
because the hold-harmless provision expressly excludes claims
“for statutory violation.”
(Doc. # 14 at 6-7; Doc. # 24 at
6). PDI contends that both of the claims in the Santos action
are based on statutory violations.
Mr. Santos asserts two claims against TECO in his Fifth
Amended Complaint: negligence (Count 1) and negligence per se
(Count 2).
(Doc. # 1-1 at 176-179).
The negligence claim in
Count 1 is based on TECO’s alleged failure (a) to properly
install and relocate its natural gas line, (b) to maintain the
gas line at a reasonably safe depth as required by 49 C.F.R.
§ 192.327 and the Florida Department of Transportation’s
Utility Accommodation Manual § 9.3, and (c) to notify others
working on the project of the depth of the gas line.
(Doc.
# 1-1 at 177, ¶ 19).
The negligence per se claim in Count 2
is
alleged
based
on
TECO’s
failure
to
comply
with
its
statutory duty to mark the route of the gas line, pursuant to
Florida’s Underground Facility Damage and Prevention Act, Fla.
Stat. §§ 556.101 et seq.
(Doc. # 1-1 at 178, ¶¶ 22, 24).
The Court is not persuaded that Mr. Santos’s tort claims
necessarily
fall
outside
the
scope
of
the
hold-harmless
provision, so as to eliminate PDI’s duty to indemnify.
hold-harmless provision states, in relevant part:
[PDI’s] indemnification obligations hereunder shall
not include claims of, or damages resulting from,
gross negligence, or willful, wanton or intentional
9
The
misconduct of [TECO] or its officers, directors,
agents, or employees, or for statutory violation or
punitive damages except and to the extent the
statutory violation or punitive damages are caused
by or result from the acts or omissions of [PDI].
(Doc. # 2 at 129 (emphasis added)).
One plausible reading of
the hold-harmless provision is that it excludes “claims . . .
for statutory violation” — that is, claims alleging a private
right of action pursuant to a statute.
Here, Mr. Santos does not assert a private right of
action under a statute.
Of course, the negligence per se
claim in Count 2 is premised on an underlying statutory
violation. See Hesterly v. Royal Caribbean Cruises, Ltd., 515
F. Supp. 2d 1278, 1287 n.6 (S.D. Fla. 2007) (“negligence per
se is the violation of a statute which establishes a duty upon
a party to take precautions to protect a particular class of
persons from a particular injury or type of injury.”).
But
there is at least a question as to whether the phrase “claims
. . . for statutory violation” is properly interpreted to
cover a common-law negligence claim in which a statutory
violation merely supplies the duty of care. Also notably, the
hold-harmless provision specifies that PDI is not responsible
for
claims
involving
TECO’s
“gross
negligence,”
but
the
provision does not absolve PDI of responsibility for claims
involving regular negligence.
10
See Mason v. Fla. Sheriffs’
Self-Ins. Fund, 699 So. 2d 268, 270 (Fla. 5th DCA 1997) (“the
inclusion of one thing implies the exclusion of the other”).
To address this issue further would require a definitive
interpretation
of
the
General
Agreement,
which
is
not
appropriate on a motion to remand. The jurisdictional inquiry
“must not subsume substantive determination,” and this Court
may not “weigh the merits of a plaintiff’s claim beyond
determining whether it is an arguable one under state law.”
Crowe, 113 F.3d at 1538.
For this same reason, the Court does not resolve PDI’s
argument that the exclusion applies not only to “claims . . .
for statutory violation” but to “damages resulting from . . .
for
statutory violation.”
See Doc. # 2 at 129 (“[PDI’s]
indemnification obligations hereunder shall not include claims
of, or damages resulting from, gross negligence, or willful,
wanton or intentional misconduct of [TECO] or its officers,
directors, agents, or employees, or for statutory violation”
(emphasis added)).
The Court simply notes that “damages
resulting from . . . for statutory violation” arguably is an
unnatural reading of the provision, and, as a general rule,
courts are discouraged from applying a “strained and unnatural
construction”
to
a
contract.
Health
Options,
Inc.
v.
Kabeller, 932 So. 2d 416, 420 (Fla. 2d DCA 2006) (internal
quotation marks omitted); see also Goldberg v. Companion Life
11
Ins. Co., 910 F. Supp. 2d 1350, 1352-53 (M.D. Fla. 2012)
(discussing interpretative canons of “nearest referent” and
“rule of the last antecedent”).
Accordingly, Travelers fails to demonstrate that Mr.
Santos’s negligence per se claim in Count 2 is excluded by the
hold-harmless provision.
Travelers’ argument is similarly
unavailing with respect to Count 1, which asserts regular
negligence. Indeed, that claim does not mention any statutory
violation.
Rather, Mr. Santos alleges that TECO breached its
duty of care under the common law, under a federal regulation,
49 C.F.R. § 192.327, and under a Florida transportation
manual.
(Doc. # 1-1 at 177, ¶ 19).
In its Motion to Dismiss, PDI also briefly argues that
TECO’s claims are barred as a matter of law pursuant to a
General Release executed by Mr. Santos when he settled his
claims against PDI.
Release,
which
is
(Doc. # 14 at 12-13).
attached
to
the
Motion
The General
to
Dismiss,
discharges not only Mr. Santos’s claims against PDI, but his
claims for vicarious liability based on PDI’s conduct.
# 14-1 at 2-3).
(Doc.
However, the General Release expressly
preserves Mr. Santos’s claims against TECO to the extent they
are based on TECO’s own negligence.
(Id. at 3).
In support of its argument, PDI relies on General Asphalt
Co. v. Bob’s Barricades, Inc., 22 So. 3d 697 (Fla. 3d DCA
2009),
which
held
that
a
subcontractor
12
had
no
duty
to
indemnify a general contractor where the subcontractor entered
into
a
settlement
agreement
in
which
the
injured
party
released claims against the subcontractor as well as claims
against the contractor based on vicarious liability.
698-99.
Id. at
Similar to this case, the settlement agreement
preserved the injured party’s claims against the contractor
for the contractor’s own negligence.
Id. at 698.
The Third
District Court of Appeal affirmed summary judgment in favor of
the
subcontractor,
holding
that
it
had
contractual duty to defend and indemnify.
satisfied
its
Id. at 698-99.
Despite these facial similarities, General Asphalt Co. is
not controlling for purposes of the Motion to Remand. In this
case,
the
General
Agreement
required
PDI
to
defend
and
indemnify TECO for TECO’s sole negligence. (Doc. # 2 at ¶ 63);
cf.
Gen.
Asphalt
Co.,
22
So.
3d
at
699
(noting
that
subcontractor only had a duty to indemnify for claims arising
from subcontractor’s negligence). Because the General Release
does not waive claims based on TECO’s own negligence, PDI may
still have a contractual duty to defend and indemnify TECO for
those claims.
PDI also relies on Florida’s Uniform Contribution Among
Tortfeasors Act, which provides that a release given in good
faith to one tortfeasor “discharges the tortfeasor to whom it
is given from all liability for contribution to any other
tortfeasor.” Fla. Stat. § 768.31(5)(b).
13
However, the Act
specifically provides that a release “does not discharge any
of the other tortfeasors from liability for the injury . . .
unless its terms so provide[.]”
Fla. Stat. § 768.31(5)(a).
Again, the General Release preserves claims against TECO for
TECO’s own negligence.
Because the hold-harmless provision
applies to such claims, TECO retains a potential claim for
Eller & Co. v. Morgan, 393 So.
contractual indemnification.
2d 580, 582 (Fla. 1st DCA 1981); SEFC Bldg. Corp. v. McCloskey
Window Cleaning, Inc., 645 So. 2d 1116, 1117 (Fla. 3d DCA
1994) (noting that contract to indemnify a party for its own
wrongful acts will be enforced if the terms are clear and
unequivocal).
Accordingly, for purposes of the Motion to Remand, the
Court finds that Travelers has failed to sustain its heavy
burden to demonstrate fraudulent joinder.
Mr. Santos alleges
claims against TECO that arguably fall within the holdharmless
provision,
and
PDI
has
indemnify TECO for those claims.
refused
to
defend
and
TECO therefore possesses a
possible action for breach of the hold-harmless provision.
B.
PDI is properly joined under Fed. R. Civ. P. 20
Travelers alternatively argues that PDI is not properly
joined in this action under Rule 20 of the Federal Rules of
Civil Procedure, which sets forth the standard for permissive
joinder of parties.
(Doc. # 25 at 14-17).
14
Relying on two
Eleventh Circuit opinions, Tapscott v. MS Dealer Service
Corp., 77 F.3d 1353 (11th Cir. 1996),1 and Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998), Travelers
argues
that
fraudulent.
Before
the
misjoinder
is
so
egregious
as
to
be
Again, the Court disagrees.
reaching
the
merits
of
Travelers’
joinder
argument, TECO asserts that Florida’s more lenient joinder
rule governs, rather than Rule 20 of the Federal Rules of
Civil Procedure. (Doc. # 10 at 25 n.2). Outside the Eleventh
Circuit, courts are split on whether the state or federal rule
supplies the relevant standard for the fraudulent-joinder
analysis. In re Prempro Prod. Liab. Litig., 591 F.3d 613, 622
n.6 (8th Cir. 2010).
But in both Triggs and Tapscott, the
Eleventh Circuit evaluated joinder under the federal rule
without acknowledging the parallel state rule.
F.3d at 1288; Tapscott, 77 F.3d at 1360.
Triggs, 154
In light of this
authority, and because TECO satisfies the more stringent
standard under Rule 20, the Court likewise evaluates joinder
under the federal rule. In re Prempro Prod. Liab. Litig., 591
F.3d at 622 n.6; Driver v. Protective Life Ins. Co., No.
6:17-CV-00186-RDP, 2017 WL 2462650, at *3 n.6 (N.D. Ala. June
7, 2017).
1
Tapscott was abrogated on other grounds by Cohen v.
Office Depot, Inc., 204 F.3d 1069, 1076-77 (11th Cir. 2000).
15
Pursuant to Rule 20(a)(2), defendants may be joined in
one action if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence,
or
series
of
transactions
or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2)(A)-(B).
The gist of TECO’s Complaint is alternative liability,
which “typically arises when the substance of plaintiff’s
claim indicates that plaintiff is entitled to relief from
someone, but the plaintiff does not know which of two or more
defendants is liable under the circumstances set forth in the
complaint.”
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1654 (3d ed.); Saunders v. Duke, 766
F.3d 1262, 1268 n.2 (11th Cir. 2014). TECO’s primary claim is
that Travelers possessed a duty to defend and indemnify TECO
as an additional insured under the Policy.
(Doc. # 2 at
¶¶ 46-47). But assuming that Travelers had no such duty, TECO
alleges
that
PDI
is
liable
for
failing
to
procure
the
necessary insurance, as required by the General Agreement.
(Id. at ¶ 70).
Both of these claims turn on one issue:
whether TECO is covered under the Policy.
satisfies Rule 20.
16
PDI’s joinder thus
Even if PDI’s joinder were not proper under Rule 20, the
Eleventh Circuit instructs that misjoinder is fraudulent only
when “the claim against the diverse defendant has no real
connection to the claim against the nondiverse defendant.”
Triggs, 154 F.3d at 1287, 1289-90. In this case, there exists
a real connection between the claims against Travelers and
PDI: the claims arise from the same accident, the claims
require interpretation of the same insurance policy, and TECO
seeks a defense and indemnity for the same underlying action.
See Hyde Park Place II Condo. Ass’n, Inc. v. London, No.
8:16-cv-1935-T-36AEP, 2016 WL 6821126, at *3 (M.D. Fla. Nov.
14, 2016) (finding no fraudulent joinder where the plaintiff
pursued multiple insurers in the same action to recover for
the
same
loss);
Harvey
v.
Geico
Gen.
Ins.
Co.,
No.
14-80078-CIV, 2014 WL 3828434, at *4 (S.D. Fla. Aug. 4, 2014)
(finding no fraudulent joinder where the claims arose from the
same accident and the same settlement negotiations).
In a final challenge, Travelers argues that the joinder
of claims against PDI and Travelers in the same action
violates Florida’s “nonjoinder of insurers” statute, Fla.
Stat. § 627.4136.
(Doc. # 25 at 16-17).
The nonjoinder
statue provides, in relevant part:
It shall be a condition precedent to the accrual or
maintenance of a cause of action against a
liability insurer by a person not an insured under
the terms of the liability insurance contract that
such person shall first obtain a settlement or
17
verdict against a person who is an insured under
the terms of such policy for a cause of action
which is covered by such policy.
Fla. Stat. § 627.4136(1).
Travelers cites no authority, nor has the Court located
any authority, to hold that non-compliance with a nonjoinder
statute demonstrates “egregious” misjoinder under the Tapscott
and Triggs line of cases.
And in any event, Travelers fails
to demonstrate that the statute applies to TECO’s claims. “By
its terms, the nonjoinder statute applies only to a cause of
action which is covered by a liability insurance contract,
i.e., a tort action.”
Hazen v. Allstate Ins. Co., 952 So. 2d
531, 538 (Fla. 2d DCA 2007).
Here, TECO is not asserting any
claim that is covered by the Policy.
TECO instead seeks
coverage as an “additional insured” under the Policy, which
“essentially is a claim against its own insurer for coverage”
and is not barred by the nonjoinder statute. Gen. Star Indem.
Co. v. Boran Craig Barber Engel Const. Co., 895 So. 2d 1136,
1138 (Fla. 2d DCA 2005).
Based on the foregoing, the Court holds that PDI’s
joinder in this action is not fraudulent.
Because complete
diversity is lacking, and because Travelers identifies no
other basis for jurisdiction, the Court must remand the case
to state court.
See 28 U.S.C. § 1447(c) (“If at any time
18
before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”).
C.
Costs
Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding
the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal.”
However, “[a]bsent unusual circumstances, courts
may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S.
132, 141 (2005).
In the Motion for Remand, TECO requests costs including
attorneys’ fees.
(Doc. #10 at 27-29). But as the above
analysis indicates, the parties provided reasonable arguments
on
both
sides.
Although
Travelers
was
ultimately
unsuccessful, the Court does not find that an award of costs
and attorneys’ fees is warranted.
III. Conclusion
Based on the foregoing, it is ORDERED, ADJUDGED, and
DECREED that:
(1) Plaintiff Tampa Electric Company’s Motion to Remand
(Doc. # 10) is GRANTED;
(2) The Clerk is directed to REMAND the case to the
Thirteenth Judicial Circuit in and for Hillsborough County, to
19
TERMINATE any pending motion, including the Motion to Dismiss
(Doc. # 3), and to CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of September, 2017.
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