Lynn v. National Union Fire Insurance Company of Pittsburgh, PA, et al

Filing 10

ORDER denying 4 Motion to Remand. The parties are DIRECTED to confer with Judge Baker via telephone conference on July 12, 2017 at 11:30 a.m. to implement a speedy plan for resolution of this case. Signed by Judge Lisa G. Wood on 7/11/2017. (csr)

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Ktt ?litttteb States: Bisitritt Court for tl^e ^outl^em Biotrict of ^leorgta Prunofottit Ptbtoion CAROLYN PATRICIA LYNN, Administrator of the as Estate of Milton Lynn, Plaintiff, No. V. NATIONAL UNION FIRE 2:17-CV-78 INSURANCE COMPANY OF PITTSBURGH, PA., Defendant. ORDER For the reasons below, this case cannot be remanded. Background Lynn Sues National Union in Breaching Insurance Contracts State Court for Allegedly Plaintiff Carolyn Patricia Lynn sued Defendant National Union Fire Insurance Co. of Pittsburgh, Pa. (^'National Union")^ in the Superior Court of Glynn County on November 10, 2016. Milton, Dkt. No. 1-2 at 9. She alleged that her late husband, had fallen on October 26, 2013. Id. at 9-10 n He went to the hospital and developed cellulitis, 2, 7. an abscess. ^ The Court's July 10, 2017 order misidentified the defendants currently in this case. The other two were voluntarily dismissed without prejudice prior to removal. A0 72A (Rev. 8/82) Dkt. No. 1-2 at 52-53. and sepsis. failure, at H Id. at 10 f 9. The sepsis contributed to kidney leading .to dialysis and more hospitalizations. 9-10. On April 17, thereafter, he occasions." ''was Id. 2014, admitted 11-12. Id. Milton's leg was amputated; to the hospital on many Milton died from the injuries and complications on October 27, 2015. Id. SI 13. National Union allegedly insured Milton, but "did not pay [him] all that was due to him under his at 10-11 SISI 14, 16. contract. Id. . . . contract." Id. The complaint therefore alleged breach of at 11 SISI 18, 20. Lynn Calculates Damages and National Union Removes Lynn sent discovery demands on November 7, 15, 28. She sought "[a] 2016. Id. at 27 SI 3. National Union responded on January 13, 2017. As It named four policies issued to Milton. for why it did not at copy of any insurance policy and any renewals covering the incident complained of." 79. Id. think they applied. Id. at 69, Id. at 67 SI 13. National referred Lynn to eleven denial letters it produced. Union Id. at 68 SI 15. On April 11, 2017, the parties jointly moved the Superior Court to extend discovery, partly "to allow the information and documents produced - could clarify [Lynn's] of the case." Id. [Lynn] to review such that the Parties claims and discuss an early resolution at 84 SI 6. National Union sent its first interrogatories on May 25, 2017. Id. at 104. which [she] It asked Lynn to ''identify each claim for contend[s] National Union erroneously failed to provide coverage," including "the applicable policy" and "the amount [she] contend[s] is owed for the claim." Id. at 101 ^ 15. On June 6, 2017, the parties the trial and extend discovery. that National Union had jointly moved to continue Id. at 117. sought They explained information from Lynn "regarding which claims [Lynn] believed were improperly denied and, as [Lynn] was which policies a [Lynn] named insured under several believed to be applicable." policies, Id. at 118 ^ 5. Lynn needed discovery from National Union to "clarify" this. Id. 27. had realized As of May 11, 2017, the parties claimed, they that "the significantly more complex that of "the amount legal issues were initially contemplated," sought by [Lynn] and remain[ed] at 120 22 15-16. 2017, Union's discovery demands. Dkt. No. 1-12 at 25. Relevantly claim for which contend[s] to June Id. and 23, here, on than damages unclear and undetermined." Finally, factual "identify each Lynn responded to [she] National National Union erroneously failed to provide coverage," Lynn simply [she] stated, received "Plaintiff from refers Defendant." to Id. eleven at 21. denial For letters the first time in Superior Court, $486,200.37 in damages. she included a chart reflecting Dkt. No. 1-15 at 10. National Union removed the case to this Court on July 6, 2017. Dkt. No. 1. Lynn moved for remand the next day. National Union responded on July 10, No. 4. 8. The Court heard oral argument by telephone on the motion on July 11, 2017. 2017. Dkt. Dkt. No. The motion is now ripe for disposition. LEGAL STANDARD Federal courts' jurisdiction is limited authorized by Constitution and statute." Life Ins. courts Co. have citizenship of Am., 511 jurisdiction U.S. over (like this one) 375, cases defendant can "that power Kokkonen v. Guardian 377 (1994). featuring District diversity of "where the matter in controversy exceeds the sum or value of $75,000." A to remove a civil 28 U.S.C. § 1332(a). suit to federal court within 30 days of either the plaintiff's initial pleading or "receipt by pleading . case is . one 1446(b)(1), party amount Power defendant a Co., ... of a copy of an amended . from which it may first be ascertained that the which (3). bears by the is or has removable." 28 Where "damages are unspecified, the burden preponderance 483 "Preponderance" become F.3d means of of establishing the 1184, that the evidence." 1208 removability (11th is U.S.C. §§ the removing jurisdictional Lowery Cir. v. Ala. 2007). "unambiguously" clear. Id. at 1213. Although ''absolute certainty is neither attainable nor required, the value of declaratory . . . relief must be 'sufficiently Wellness, Cir. and certain'." S. Fla. Inc. v. Allstate Ins. Co., 745 F.Sd 1312, 1316 (11th 2014) 1255, measurable 1269 (quoting Morrison v. (11th Cir. 2000) Allstate Ins. Co., (citation omitted)). 28 F.3d Removal is improper if the amount in controversy is "too speculative and immeasurable." 1077 Inc. Cohen v. (11th Cir. V. 2016 ("[Wjhile common Depot, the 5419435, Court sense,' the reasonably support controversy is suffice." Inc., 1997)); see also Helmly v. WL Inc., 204 F.3d 1069, (quoting Ericsson GE Mobile Commc'ns, Motorola Commc'ns & Elec., (11th Cir. 023, 2000) Office at may *2 use allegations the Kmart Corp., (S.D. its Ga. in No. Sept. 'judicial conclusion satisfied. 120 F.3d 216, the that Generalized facts 221-22 CV 616- 27, 2016) experience complaint the . must amount . . and will in not (internal citations omitted)). DISCUSSION The parties dispute whether National Union knew this case was removable at the time of the complaint receipt of Lynn's discovery responses. establish removability, as that was at least $75, 000 or only after The complaint did not it did not unambiguously indicate in controversy, so removal was timely and this case cannot be remanded.^ The complaint does allege serious injuries and years' worth of medical conditions resulting in death. Had the complaint said National Union paid nothing, that might have established removability.^ But because the complaint in fact only alleged that National Union failed to National pay ''all" that was Union had no way of due, figuring without out whether Lynn was demanding 0.01% of the coverage or 99.99%. SI 16. And i t Lowery, 483 could not have F.Sd at 1215. would have been improper. elaboration. Dkt. No. 1-2 at 11 removed based on a Removal pure guess. based on the complaint Present removal was timely. CONCLUSION National that it Union "should not be penalized for could not further inquiry." 00-220, 2000 WL remove this Webb v. 351992, action Home Depot, at *3 (M.D. in good concluding faith without USA, Inc., No. Civ.A. Ala. Mar. 27, 2000). Lynn's Motion for Remand, dkt. no. 4, is DENIED. The parties ^ For the reasons below, it would not have mattered even if National Union needed to consider the coverage-denial letters in its possession. Compare Taylor Newman Cabinetry, (11th Cir. 2011) Inc. v. Classic Soft Trim, Inc., 436 F. App'x 888 (per curiam) with Anderson v. Select Portfolio Servicing, Inc., No. 1:17-CV-10, 2017 WL 2812887, at *4-5 (S.D. Ga. June 29, 2017) (discussing Lowery, 483 F.3d at 1188-89); Clark v. Unum Life Ins. Co. of Am., 95 F. Supp. 3d 1335, 1354-56 (M.D. Fla. 2015); Callahan v. Countrywide Home Loans, Inc., No. 3:06CV105, 2006 WL 1776747, at *4 (N.D. Fla. June 26, 2006). ^ Contrast Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1065-66 (11th Cir. 2010); Peters v. Wal-Mart Stores E., L.P., No. l;13-CV-76, 2013 WL 4647379, at *2 (M.D. Ga. Aug. 29, 2013); Farley v. Variety Wholesalers, Inc., No. 5:13-CV-52, 2013 WL 1748608, at *2 (M.D. Ga. Apr. 23, 2013); with Helmly, 2016 WL 5419435, at *2; Cameron v. Teeberry Logistics, LLC, 920 F. Supp. 2d 1309, 1313 (N.D. Ga. 2013). are DIRECTED conference on to July confer 12, with 2017 at Judge 11:30 Baker a.m. via to telephone implement speedy plan for resolution of this case. SO ORDERED, this 11th day of July, HON\ 2017. LISA GODBSY WOOD, UNITED STATES JUDGE DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA A0 72A (Rev. 8/82) a

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