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)
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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