Fayard et al v. Zurich American Insurance Co et al

Filing 27

ORDER denying 16 Motion to Remand. Signed by Judge Tucker L Melancon on 10/19/2010. (crt,Kennedy, T)

- C M H Fayard et al v. Zurich American Insurance Co et al

D o c . 27

UNITED STATES DISTRICT COURT W E STER N DISTRICT OF LOUISIANA LA FAY ETTE DIVISION Fayard, et al v ersu s Zu rich American Ins. Co.,et al O R D ER
B e f o re the Court is a Motion To Remand filed by plaintiffs, Phillip Fayard, Shirley F ayard and Krystal Fayard, individually and on behalf of her minor children, Austin Guidry a n d Alexis Guidry [Rec. Doc. 16], defendants' opposition thereto [Rec. Doc 20] and d ef en d an ts ' additional response to plaintiffs' motion [Rec. Doc. 26]. B a c k g ro u n d T h is matter arises out of an automobile accident that occurred on September 18, 2008. P la in tiff s filed a Petition in the Fifteenth Judicial District Court, Parish of Acadia, Louisiana o n September 21, 2009 naming as defendants Zurich North American Insurance Company, H e n k e ls & McCoy, Inc., Global Rental Company and Philip Conklin ("defendants"). R. 1-3, P e titio n . Defendants removed the case to this Court on January 13, 2010 pursuant to d iv e rs ity jurisdiction under 28 U.S.C. § 1332. R. 1. At the June 1, 2010 Rule 16 conference, p la in tiff s offered to stipulate that the minimum jurisdiction in this Court was not satisfied as to any of the plaintiffs. The Magistrate Judge ordered defendants to advise the court, in w ritin g , whether the defendants would accept plaintiffs' offer to stipulate. R. 11. On June 1 7 , 2010, plaintiffs filed a Stipulation of Damages Less Than Seventy Five Thousand D o lla rs , which was electronically executed by plaintiffs' counsel. R. 12 The stipulation also in c lu d e d "electronic signatures" of each of the plaintiffs. Id. On June 24, 2010, defendants f ile d an Opposition to Stipulation stating "[d]efendants show that all three of the plaintiffs' in d iv i d u a l causes of action and amount in controversy exceed $75,000.00" R. 13. On August

Civil Action No. 6:10-0058 Judge Tucker L. Melançon M agistrate Judge C. Michael Hill

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18, 2010, plaintiffs filed their Motion to Remand and cited their Stipulation, asserting that th e matter did not exceed the sum of $75,000.00 for any of the plaintiffs. R. 16. Defendants f ile d a brief in opposition to the motion outlining each plaintiff's injuries and diagnoses. R. 2 0 . The Court conducted a telephone conference with the parties on September 22, 2010. R . 24. On September 29, 2010, pursuant to the Court's order given during the telephone c o n f ere n c e, defendants filed an additional response to plaintiffs' motion to remand setting o u t specific references and evidentiary support for their position that plaintiffs' damages e x c e e d the $75,000.00 threshold for each plaintiff required for jurisdiction in this Court. R. 26. Analysis It is well settled that when faced with a motion to remand, it is the defendant's burden to establish the existence of federal jurisdiction over the controversy. Winters v. Diamond S h a m ro c k Chemical Co., 149 F.3d 387, 397 (5 th Cir. 1998). Because plaintiffs in Louisiana s ta te courts may not plead a numerical value of claimed damages, the Fifth Circuit has e sta b lis h e d a framework for resolving disputes over the amount in controversy, for actions r e m o v e d based on diversity jurisdiction from Louisiana state courts. Gebbia v. Wal-Mart Sto re s, Inc., 233 F.3d 880, 882-83 (5th Cir.2000). In such cases the removing defendant must p ro v e by a preponderance of the evidence that the jurisdictional amount is satisfied in one o f two ways: (1) by demonstrating that it is facially apparent from the petition that the claim lik e ly exceeds $75,000.00, or (2) by setting forth facts-preferably in the removal petition, but so m e tim e s by affidavit-that support a finding of the requisite amount. Id.; Grant v. Chevron P h illip s Chemical Co. L.P., 309 F.3d 864, 868 (5th Cir.2002). Whatever the manner of proof, the jurisdictional facts that support removal must be ju d g e d at the time of removal. Gebbia, 233 F.3d at 883. If at the time of removal it is facially a p p a re n t from the petition that the amount in controversy exceeds $75,000.00, post-removal a ff id a v its , stipulations and amendments reducing the amount do not deprive the court of

ju ris d ic tio n . Id. However, post-removal affidavits may be considered in determining the a m o u n t in controversy, if the basis for jurisdiction is ambiguous at the time of removal. Id. If the defendant can produce evidence sufficient to show by a preponderance that the amount i n controversy exceeds the jurisdictional threshold, the plaintiff can defeat diversity ju ris d ic tio n only by showing to a legal certainty that the amount in controversy does not e x c e e d $75,000.00. Grant, 309 F.3d at 869. Here, plaintiffs have failed to provide a binding stipulation that their damages are less th a n seventy-five thousand dollars each. Under the Local Rules of the Western District of L o u is ia n a , LR 5.7.01W, .02W, .08W, only attorneys admitted to the Western District may ex ec u te a document by electronic signature. Plaintiffs' electronic signatures are therefore inv alid . Further ,as it is not facially apparent from the Petition that each of the plaintiff's c la im s are likely to exceed $75,000, defendants have the burden to prove by a preponderance o f the evidence that the amount in controversy exceeds the jurisdictional amount. In support o f their removal of this action, defendants cite the Court to each plaintiff's medical records w h ich existed at the time of removal: 1 . Phillip Fayard T h e record establishes that plaintiff Phillip Fayard's medical expenses total $ 1 0 ,2 4 2 .0 0 . R. 26, Exh. 1. Plaintiff's MRI reports dated February 3 and April 28, 2009 show h e rn ia tio n s at L3-4 and L5-S1 and probable herniations at L4-5 as well as herniations at C23 , C3-4, C4-5, C6-7 and T1-2. Id., Exhs. 2; 3. In office visits dated April 20, May 20 and J u n e 22, 2009, plaintiff's treating physician, Dr. Donald Dietze, noted that plaintiff reported b a c k and neck pain since his motor vehicle accident in September 2008. Dietze diagnosed p lain tiff with lumbar disc disorder, back pain, cervical disc disorder and neck pain. In his J u n e 22, 2009 evaluation, Dr. Dietze opined that it was more likely than not that the motor v e h ic le accident in September 2008 is the cause of plaintiff's persistent neck and back pain.

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D i etz e recommended that plaintiff have steroid injections, but if after one year post injury h e had not recovered, plaintiff would be a candidate for cervical surgery. 2 . Shirley Fayard P la in tiff Shirley Fayard's medical expenses total $11,426.00. Id., Exh. 6. November 1 9 , 2008 MRI reports of her cervical and lumbar spine state that plaintiff has degenerative d i sc at C2-3, C3-4, C4-5 and C5-6 with disc protrusion at C3-4 as well as lumbar disc d e s ic c a tio n , degenerative change at T12 and small hemangiomas at L2 and L5. Id., Exhs. 7 ,8 . In his May 6, and June 22, 2009 reports of plaintiff's examination, Dr. Dietze diagnosed n e c k pain, cervical disc disorder, cervical spondylosis, back pain and lumber disc disorder. Id . Exh. 9. He opined that the September 2009 accident aggravated her pre-existing cervical d is c disease and/or caused a new disc injury superimposed on the cervical disc disease. Id. H e recommended continuing her pain medications and chiropractic treatments for one year p o s t injury and concluded that she is a potential candidate for C5-6 anterior cervical d is c e cto m y and fusion. 3 . Krystal Fayard P la in tiff Krystal Fayard's medical expenses total $25,620.26. R. 26, Exh. 10. Reports d a t e d October 13, 2008 and February 26, 2009, from the Advanced Medical Care & Wellness C e n ter, Dr. Samuel Greenberg and Dr. Jerome Murpel, state that plaintiff, a 20 year old f e m a le , sustained a "direct impact injury" to her right forehead requiring stitches. She re p o rte d mid to low back pain radiating into her legs with numbness and knee and neck pain a n d headaches. She stated that her pain interferes with activities of daily living. Id., Exhs. 1 2 , 13. Plaintiff was diagnosed with cervical and lumbar strain and sprain, posttraumatic h e a d ac h e s and bilateral knee pain. She was prescribed pain medication and was instructed to continue conservative therapy. Id. As of June 12, 2009, plaintiff received 36 chiropractic tre a tm e n ts and 12 trigger point injections. Id., Exh. 11. The record indicates that she also

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h ad an EEG and nerve conduction velocity studies which were normal. Id., Exh. 14. The M a y 28, 2009 report of Dr. Chad Michael Domangue, at the Neuro-Science and Pain In s titu te , states that plaintiff was diagnosed with cervical sprain, muscle spasms - soft tissue in ju ry, and lumbar sprain. Dr. Domangue fitted her with a TENS unit and prescribed pain m e d ic a tio n s and continued massage and manipulation. Id, Exh. 15. D e f en d a n ts contend that each plaintiff's damages "well exceed $75,000." R. 26.

D e f e n d a n ts state without jurisprudential support, presumably in the alternative, that "only o n e of the claimants' damages need exceed that amount in order for this court to have subject m a tte r jurisdiction." Id. To the contrary, the Fifth Circuit in Allen v. R & H Oil & Gas Co., 6 3 F.3d 1326, 1330 (5th Cir.,1995) instructed: T h e Supreme Court has long interpreted § 1332's phrase "matter in controv e rs y" not to allow multiple plaintiffs to add together "separate and distinct d e m a n d s , unite[d] for convenience and economy in a single suit," to meet the re q u is ite jurisdictional level. See Snyder v. Harris, 394 U.S. 332, 336, 89 S.Ct. 1 0 5 3 , 1057, 22 L.Ed.2d 319 (1969) (quoting Troy Bank v. G.A. Whitehead & C o ., 222 U.S. 39, 40, 32 S.Ct. 9, 9, 56 L.Ed 81 (1911)); Zahn v. International P a p e r Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973) ("[ O ]n e plaintiff may not ride in on another's coattails.") (citation omitted). T h e general rule is that each plaintiff who invokes diversity of citizenship ju ris d ic tio n must allege damages that meet the dollar requirement of § 1332. T h e Court agrees, however, that based on the record, each of the plaintiff's causes of action c o u ld in fact exceed $75,000. It is well established in Louisiana law that damage awards for a herniated disc without s u rg ic a l intervention may exceed $75,000. See, e.g.,Guidry v. Millers Casualty Ins. Co.,822 S o .2 d 675 (La. App. 1 Cir. 6/21/02) (auto accident victim with aggravation of a degenerative lu m b a r condition and lingering pain awarded $50,000); Locke v. Young, 973 So.2d 831 (La. A p p . 2 Cir. 12/12/07) ($75,000 awarded for two lumbar bulging discs with the prospect of a possible future surgery caused by accident); Pannell v. Encompass Ins. Co., 956 So.2d 152 (L a . App. 3 Cir. 5/2/07) ($90,000 awarded for aggravation of herniated lumbar discs in which

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a subsequent surgery was found not related to auto accident); Duchamp v. State Farm Mut. A u to . Inc. Co., 916 So.2d 498 (La. App. 3 Cir. 11/2/05) ($135,000 awarded for herniated disc c a u sin g continuous chronic neck pain with surgery not contemplated). The jurisprudence a ls o establishes that awards for soft tissue injuries of the neck and back have been as much a s $45,000 to $55,000. See, e.g., Leonard v. State Farm Mut. Auto. Ins. Co., 900 So.2d 322 (L a . App. 2 Cir. 4/20/05)($55,000 award for soft tissue injuries and headaches after serious v e h icu lar collision; chiropractic treatment for chronic neck and upper back pain); Moraus v. F re d e ric k , 916 So.2d 474 (La. App. 3 Cir. 11/2/05) ($46,000 award for sort tissue injuries a n d seventeen months of conservative medical treatment after vehicular accident). Based on the foregoing, defendants have shown to a legal certainty that the sum of the m e d ica l expenses in addition to an award of general damages for injuries sustained would lik e l y result in an amount which exceeds the jurisdictional amount for each of the plaintiffs, P h i llip Fayard, Shirley Fayard and Krystal Fayard. Accordingly it is, O R D E R E D that plaintiffs' Motion To Remand [Rec. Doc. 16] is DENIED. T h u s done and signed this 19 th day of October, 2010 at Lafayette, Louisiana.