Durshimer v. LM General Insurance Company
ORDER: The Clerk is directed to remand this case to state court because the Court lacks subject matter jurisdiction. After remand, the Clerk shall close this case. Signed by Judge Virginia M. Hernandez Covington on 9/8/2020. (AR)
Case 8:20-cv-02014-VMC-AEP Document 7 Filed 09/08/20 Page 1 of 7 PageID 167
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
MICHAEL STEVEN DURSHIMER,
Case No. 8:20-cv-2014-T-33AEP
LM GENERAL INSURANCE COMPANY,
This cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded to state court for
lack of subject matter jurisdiction.
jurisdiction[.]” Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1260-61 (11th Cir. 2000). As such, “[a] federal court
not only has the power but also the obligation at any time to
jurisdiction does not exist arises.” Fitzgerald v. Seaboard
Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985).
Plaintiff Michael Steven Durshimer originally initiated
this insurance action arising out of an automobile accident
in state court on June 5, 2020. (Doc. # 1-1). Thereafter, on
Case 8:20-cv-02014-VMC-AEP Document 7 Filed 09/08/20 Page 2 of 7 PageID 168
removed the case to this Court on the basis of diversity
jurisdiction. (Doc. # 1).
things, that “the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs.” If “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
establishing the jurisdictional amount by a preponderance of
the evidence.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1208
(11th Cir. 2007).
Here, the complaint does not state a specified damages
claim. (Doc. # 1-1 at ¶ 1) (“This is an action for damages
that exceeds Thirty Thousand Dollars.”). Instead, in its
notice of removal, LM General relied upon the civil cover
sheet attached to Durshimer’s state court complaint, which
stated the “amount of claim” was $500,000, and the insurance
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policy in question, which contained a limit of $100,000 per
person and $300,000 per accident. (Doc. # 1 at 2-3).
Upon review of LM General’s notice of removal, the Court
was “unable to determine whether the amount in controversy
has been met by Durshimer’s damages claim without engaging in
concluded that the parties provided “no factual support for
any of Durshimer’s damages resulting from the automobile
opportunity to provide additional information to establish
the amount in controversy. (Id.).
LM General has now responded to the Court’s Order in an
attempt to establish the Court’s diversity jurisdiction.
preponderance of the evidence that the amount in controversy
exceeds $75,000. In its response, LM General reiterates its
opinion that the policy limit of $100,000 per person and
Durshimer’s state civil cover sheet establish that the amount
in controversy exceeds $75,000. (Id. at 2-6). LM General
supplements its notice of removal with Durshimer’s pre-suit
demand letter, which requests $50,000. (Id. at 6-7). LM
typographical error, and should have provided for a demand of
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$100,000, because other portions of the letter indicate that
Durshimer believed a jury could award a higher sum. (Id. at
7-8). Regardless of that amount, LM General argues that this
is further evidence that the amount in controversy exceeds
While the allegations in the Complaint reflect that
Durshimer suffered injuries from the automobile accident,
there is nothing in the Complaint to help the Court ascribe
any monetary value to these damages. See, e.g., Williams v.
Wal-Mart Stores, Inc., 534 F. Supp. 2d 1239, 1243-44 (M.D.
Ala. 2008) (finding that a complaint which claimed only
“unspecified damages” and listed the plaintiff’s injuries did
not show that the amount in controversy exceeded $75,000);
A.W. ex rel. Willis v. Wal-Mart Stores E., LP, No. 6:12-cv1166-Orl-36DAB, 2012 WL 5416530, at *1, *5 (M.D. Fla. Oct. 5,
2012) (finding that allegations of severe injuries, including
“impairment of working ability” did not establish the amount
No concrete information is provided regarding past or
future medical expenses, pain and suffering, or lost wages.
Accordingly, these categories of damages are too speculative
to include in the amount in controversy calculation. See,
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e.g., Pierre v. Gov’t Emps. Ins. Co., No. 8:17-cv-1108-T33JSS, 2017 WL 2062012, at *2 (M.D. Fla. May 13, 2017)
(finding no basis to determine the amount in controversy when
corresponding costs [were] detailed”).
Nor is the Court convinced that the amount in controversy
requirement is satisfied based on the limits of the automobile
. . . it is the value of the claim, not the value
of the underlying policy, that determines the amount in
controversy.” Martins v. Empire Indem. Ins. Co., No. 0860004-CIV, 2008 WL 783762, at *2 (S.D. Fla. Mar. 21, 2008)
(quotation omitted); see also Amerisure Ins. Co. v. Island
Crowne Developers, L.C., No. 6:10-cv-221-Orl-28DAB, 2010 WL
11626694, at *2 (M.D. Fla. Apr. 28, 2010) (“[A] showing that
the policy amount exceeds $75,000 does not in and of itself
establish that the amount in controversy requirement has been
met because the value of the underlying claim may be for less
than the policy limits[.]”). And, unlike in other cases where
courts have found that the amount in controversy was met
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because the plaintiff sought damages in excess of a policy
limit, Durshimer does not specify as much in his complaint.
See Keenan v. LM Gen. Ins. Co., No. 6:17-cv-1426-Orl-40GJK,
2017 WL 6312853, at *2 (M.D. Fla. Nov. 17, 2017) (finding
that because the plaintiff sought damages in excess of the
typographical error convincing. Regardless, pre-suit demand
controversy absent specified damages, which are absent here.
See Lamb v. State Farm Fire Mut. Auto. Ins. Co., No. 3:10cv-615-J-32JRK, 2010 WL 6790539, at *2 (M.D. Fla. Nov. 5,
2010) (stating that demand letters and settlement offers “do
not automatically establish the amount in controversy for
purposes of diversity jurisdiction). Nor does the Court find
Durshimer’s state civil cover sheet, which provides for an
amount of claim of $500,000, compelling, considering the
policy limit of $100,000, and absent any additional factual
Accordingly, LM General has not carried its burden of
establishing this Court’s diversity jurisdiction. The Court,
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finding that it lacks subject matter jurisdiction, remands
this case to state court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
The Clerk is directed to REMAND this case to state court
because the Court lacks subject matter jurisdiction. After
remand, the Clerk shall CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of September, 2020.
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