ANDERSON v. AMERICAN FAMILY INSURANCE COMPANY et al

Filing 20

ORDER GRANTING 12 Motion to Dismiss for Lack of Jurisdiction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/29/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GARTH ANDERSON,
Plaintiff,
v.
AMERICAN FAMILY INSURANCE
COMPANY,

Defendant.

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CIVIL ACTION NO. 5:15-CV-475 (MTT)

ORDER
Defendant American Family Insurance Company (“AFIC”) has moved to dismiss
the declaratory judgment claim against it for lack of subject matter jurisdiction because
Anderson “cannot meet his burden of establishing that the declaratory relief he seeks …
presents an ‘actual controversy’ that satisfies the ‘case-or-controversy’ standard for
federal subject matter jurisdiction and declaratory relief under 28 U.S.C. § 2201.”1
(Docs. 12; 12-1 at 3). Anderson “seeks a declaration that, when presented with covered
claims arising from a direct physical loss, Defendants are obligated to assess for
diminished value and then pay it or deny its existence.” (Docs. 1 ¶¶ 86-90; 14 at 6).
AFIC contends that Anderson has alleged no “fact, or suggested inferences from
any facts, to support a conclusion there is a practical likelihood or reasonable
expectation that Anderson will submit a future insurance claim, or that the injury

1

American Family Mutual Insurance Company (“AmFam Mutual”) also moved to dismiss this claim for
lack of subject matter jurisdiction. (Doc. 12). However, the Court previously dismissed AmFam Mutual as
a Defendant. (Doc. 19).

Anderson alleges he has suffered … will be repeated in the future.” (Doc. 12-1 at 10).
Thus, Anderson’s “declaratory judgment claim does not allege the real and imminent
threat of injury necessary to satisfy the ‘actual controversy’ requirement.” (Id.).
Anderson counters that his allegation that “the risk that [he] … will sustain another
covered loss in the future, and that AmFam will continue to improperly fail to assess and
pay for diminished value …, is real and immediate” and the “10% probability that he will
submit another covered claim to Defendants this year … are sufficient to show a
probabilistic injury for purposes of jurisdiction.” (Docs. 1 ¶ 90; 14 at 10).
Notwithstanding the fact that Anderson does not allege in his complaint there
exists a 10 percent probability he will submit another claim this year, the issue and
arguments raised by the parties in their briefs here are the exact same as the issue and
arguments raised in Thompson v. State Farm Fire and Casualty Company, No. 5:14-cv32, 2016 WL 2930958 (M.D. Ga).2 In that case, this Court denied the plaintiffs’ motion
for reconsideration and held that the allegation that there is up to a 10 percent chance
the plaintiffs’ townhouse will suffer a covered loss in a given year is insufficient to confer
Article III standing.3 Id. at *3; see Appendix. AFIC’s motion to dismiss is GRANTED
(Doc. 12) for the same reasons the Court denied the plaintiffs’ motion for
reconsideration in Thompson.
SO ORDERED, this 29th day of June, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

2

The Court notes that the lawyers for Anderson are the same as the lawyers for the plaintiffs in
Thompson.

3

The Court accepted the allegation as true for purposes of the motion. Id. at *2.
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