Miller v. Great Lakes Reinsurance (U K)

Filing 10

MEMORANDUM RULING re 5 MOTION to Remand filed by Ida Miller. Signed by Magistrate Judge C Michael Hill on 12/15/2010. (crt,Davenport, M)

M i l l e r v. Great Lakes Reinsurance (U K) PLC

D o c . 10

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA I D A MILLER VS. G R E A T LAKES REINSURANCE (U K ) PLC : : : D O C K E T NO. 6:10 CV 1578 J U D G E DOHERTY M A G I S T R A T E JUDGE HILL

M E M O R A N D U M RULING O n December 15, 2010, the undersigned heard argument on the the plaintiff's M o tio n to Remand this suit to the 16 th Judicial District Court for Iberia Parish, Louisiana. F o r the following reasons, the motion to remand is denied. BACKGROUND P lain tiff , Ida Miller ("Miller") , filed this lawsuit in the 16 th Judicial District Court fo r Iberia Parish, Louisiana against Great Lakes Reinsurance (UK) PLC ("Great Lakes"), w h ic h is alleged to have insured Miller's property which was allegedly damaged during H u rric a n e Gustav. Miller's Petition alleges that Great Lakes wrongfully denied p la in tif f 's claim under the policy. Accordingly, she seeks "the policy limits . . . less and e x c e p t any sums already tendered to Plaintiff by Defendant." [rec. doc. 1-1, pg. 5, ¶ 22]. She additionally seeks statutory penalties and attorney's fees under La. R.S. 22:658 (50% o f the claim) and/or La. R.S. 22:1220 (two times the damages sustained).1 [Id. at pg. 4-5, ¶ ¶ 12, 14, 17, 18 and 19].

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These statutes have been re-designated as La. R.S. 22:1892 and 22:1973, respectively.

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G r e a t Lakes timely removed this action to this federal court pursuant to 28 U.S.C. § 1441(b) alleging that the matter in controversy exceeds $75,000 and that this court th e re f o re has diversity jurisdiction under 28 U.S.C. §1332. [rec. doc. 1]. LAW AND ANALYSIS A removing defendant must prove by a preponderance of the evidence that the a m o u n t in controversy exceeds $75,000 by either (1) demonstrating that it is facially a p p a re n t that the claims are likely above $75,000 or (2) setting forth the specific facts in c o n tro v e rs y that support a finding of the jurisdictional amount. Simon v. WalMart Stores, 1 9 3 F.3d 848, 850 (5 th Cir. 1999) citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5 th Cir. 1999). In actions seeking sums due under an insurance policy, when determining if the ju ris d ic tio n a l amount exists, courts consider not only the amounts allegedly due under the p o lic y, but also any potential attorney's fees and penalties for which the insurer may be lia b le . St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). In this case, it is facially apparent that the jurisdictional amount exists. Plaintiff e x p re ss ly seeks "the policy limits . . . less and except any sums already tendered to P la in tif f by Defendant." [rec. doc. 1-1, pg. 5, ¶ 22]. The Great Lakes policy contains c o v e ra g e limits of $52,000.00. It is undisputed that plaintiff has been paid $4,388.66 u n d e r the policy. Thus, her claim for damages is for $47, 611.34. Penalties of two times th is amount may be awarded under La. R.S. 22:1220. Moreover, attorney's fees may be

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a w a rd e d under La. R.S. 22:658. Thus, it is abundantly clear that the jurisdictional amount is not only met, but far exceeded, in this case. Once it is apparent that there is a sufficient amount in controversy for jurisdiction, th e plaintiff can only defeat removal by establishing that it is legally certain that her c la im s are for less than $75,000. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1411-1412 (5 th Cir. 1995), cert. den. 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995). P la in tif f submits a Stipulation and Renunciation, stating that her claim does not e x c ee d $75,000.00 and that she renounces her right to enforce any judgment greater than th a t amount. While this stipulation and renunciation might have been sufficient to defeat ju ris d ic tio n had it been made prior to removal, its submission after the removal will not d e f ea t jurisdiction. The Fifth Circuit has made it clear that "once a defendant has re m o v e d the case, St. Paul makes later filings irrelevant." De Aguilar, 47 F.3d at 1412 r e fe re n c in g St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293, 58 S.Ct. 5 8 6 , 82 L.Ed. 845 (1938) ("[E]vents occurring subsequent to removal which reduce the a m o u n t recoverable . . . do not oust the district court's jurisdiction once it has attached."). Furthermore, although the Fifth Circuit allows plaintiffs to clarify ambiguity in th e ir Petition with post-removal affidavits, when, as in this case, the amount in c o n tr o v e r sy is facially apparent at the time of removal, post-removal stipulations, a f f id a v its or amendments purporting to reduce the amount of damages a plaintiff seeks c a n n o t deprive the Court of jurisdiction. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 8 8 3 (5th Cir. 2000) (citations omitted). 3

B a se d on the foregoing, this court may properly exercise diversity jurisdiction u n d e r 28 U.S.C. § 1332. The plaintiff's Motion to Remand is therefore DENIED. Signed this 15 th day of December, 2010, at Lafayette, Louisiana.

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