Dady v. Liberty Insurance Corporation
Filing
6
MEMORANDUM OPINION AND ORDER: Dft shall SHOW CAUSE within 14 days why this matter should not be remanded to Boyle Circuit Court. Signed by Judge Joseph M. Hood on January 20, 2016. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GERARD DADY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LIBERTY INSURANCE
CORPORATION,
Defendant.
Civil Case No. 16-cv-17-JMH
MEMORANDUM OPINION & ORDER
***
The Court has reviewed the Notice of Removal filed in this
matter by Defendant Liberty Insurance Corporation (“Liberty”)
[DE 1].
him
by
In his Complaint, Dady avers that Liberty has injured
virtue
of
breach
of
contract,
common
law
bad
faith,
violations of Kentucky’s Unfair Claims Settlement Practices Act
and
Consumer
Protection
Act
arising
out
of
property
damage
sustained during a wind storm on or about April 25, 2015, and
Liberty’s
claim.
subsequent
Defendant
handling
removed
of
this
his
case
homeowner’s
on
January
insurance
15,
2016,
pursuant to 28 U.S.C. § 1332, 1441, and 1446, asserting that the
case could have been brought in federal court originally because
the
parties
have
diverse
citizenship
and
the
amount
in
controversy is greater than $75,000.
“In cases like the one at hand, ‘where the plaintiff seeks
to recover some unspecified amount that is not self-evidently
greater
or
less
than
the
federal
amount-in-controversy
requirement,’ the defendant must show that it is more likely
than not that the plaintiff's claims exceed $75,000."
King v.
Household Finance Corp. II, 593 F.Supp.2d 958, 959 (E.D. Ky.
2009) (emphasis in original) (citing Gafford v. Gen. Elec. Co.,
997 F.2d 150, 155 (6th Cir. 1993)).
with
competent
proof
showing
Defendant must come forward
that
the
amount-in-controversy
requirement is satisfied, and speculation is not sufficient to
meet this burden.
Id. (holding that defendant offered “mere
averments” and not “competent proof” where notice of removal
stated
only
that
“in
light
of
the
plaintiffs'
claims
for
compensatory damages, punitive damages, and attorney fees, it is
clear that the amount in controversy threshold is met”); see
also Hackney v. Thibodeaux, Civil Action No. 10-35-JBC, 2010 WL
1872875, *2
competent
(E.D.Ky. May 10, 2010) (holding that there was no
evidence
of
requisite
amount
in
controversy
where
defendant relied on plaintiff’s pleading which sought to recover
past and future medical expenses, lost wages, future impairment
of
the
power
to
earn
money,
and
past
and
future
pain
and
suffering and mental anguish for injuries which are “serious and
permanent in nature.”).
Plaintiff’s
initial
amount in controversy.
pleading
did
not
allege
a
specific
In its Notice of Removal, Defendant
relies on Plaintiff’s response to its Requests for Admission,
2
"[a]dmit
that
your
total
claimed
damages
related
to
the
Incident, including attorney's fees, do not exceed Seventy-Five
Thousand Dollars," and "[a]dmit that you are not seeking in
excess
of
Seventy-Five
matter."
Plaintiff
Thousand
responded,
Dollars
($75,000)
"[a]dmitted
at
in
this
this
stage,
however the attorney's fees in this case may escalate and exceed
$75,000 by the time of trial.”
A potential award of attorneys
fees is properly considered in determining whether the amount in
controversy
requirement
is
satisfied
statute (here, KRS 403.12-235(3)).
Ins.
Co.,
481
F.3d
369,
376-77
where
provided
for
by
See Williamson v. Aetna Life
(6th
Cir.
2007).
In
this
instance, however, the Court is not immediately persuaded that
Defendant has demonstrated by a preponderance of the evidence
that the amount in controversy “more likely than not” exceeds
$75,000 where there is admission that the Plaintiff does not
have damages and is not seeking in excess of $75,000 but states
that there “may” be an escalation of attorneys fees that “may”
cause an award of damages to exceed $75,000 by the time of
trial.
Unless Defendant can offer some additional competent proof
of
an
amount
argument
to
in
controversy
support
a
which
exceeds
conclusion
that
$75,000
or
legal
jurisdiction
is
appropriate based on the scenario presented to this Court, i.e.,
that “may” is somehow equal to “more likely than not,” the Court
3
is of the opinion that it lacks jurisdiction over this matter
and that the matter should be remanded to Boyle Circuit Court.
Accordingly and upon the Court’s own motion, IT IS ORDERED
that Defendant shall SHOW CAUSE within fourteen (14) days of
entry of this order why this matter should not be remanded to
Boyle Circuit Court.
This the 20th day of January, 2016.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?