Boskovic v. Bristol West Insurance Company

Filing 14

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Motion to Remand (Doc. 6 ) filed by Plaintiff is DENIED. Signed by Magistrate Judge Noelle C. Collins on 07/21/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAMIR BOSKOVIC,
Plaintiff,
V.
BRISTOL WEST INSURANCE
COMPANY,

Defendant.

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Case No. 4:14CV927 NCC

MEMORANDUM AND ORDER
Before the court is the Motion to Remand Case filed by Plaintiff Damir Boskovic. (Doc.
6). The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge. (Doc. 8).
FACTUAL BACKGROUND
Plaintiff filed the instant cause of action in the Circuit Court of the City of St. Louis,
Missouri, on August 23, 2013, naming Farmers Insurance Company, Inc. (Farmers) as
Defendant. Defendant subsequently informed Plaintiff that the properly named party Defendant
is Bristol West Insurance Company (Bristol West). In Count 1 (Breach of Contract) and Count 2
(Vexatious Refusal to Pay) of his State court petition, Plaintiff sought damages in an amount that
was fair and reasonable, in excess of $25,000, pursuant to an uninsured motorist claim arising
out of a motor vehicle accident, which occurred on August 19, 2012. In Count 2, Plaintiff
additionally sought statutory damages for vexatious refusal to pay, along with statutory
attorney’s fees.1 Plaintiff stated that he had injuries to his neck, back, spine, chest, ribs and
1

Mo. Rev. Stat. § 375.420 (Vexatious Refusal to Pay) provides:

shoulder from the underlying accident to his head; he would require treatment in the future; and
his ability to work, labor, and enjoy life were impaired as a result of the accident. (Doc. 1-2).
See Mo. R. Civ. P. 55.05 ("If a recovery of money be demanded, the amount shall be stated,
except that in actions for damages based upon an alleged tort, no dollar amount shall be included
in the demand except to determine the proper jurisdictional authority, but the prayer shall be for
such damages as are fair and reasonable.”). Defendant filed an answer on November 22, 2013.
(Doc. 1-2 at 21-29).
On December 26, 2013, Defendant served Plaintiff with its First Set of Interrogatories
and First Request for Production. (Doc. 1-2 at 49). On January 27, 2014, Plaintiff filed his
Certificate of Mailing for Plaintiff’s Discovery Responses. (Doc. 1-2 at 59). In his responses,
Plaintiff stated that no estimates had been prepared as to the amount of damage to the relevant
vehicle; he suffered injuries to his head, neck, back, spine, chest, ribs, and shoulders; he
continued to have complaints with regard to those parts of his body; payments to medical
providers included $1,352.50 to St. Anthony’s Hospital, $476.00 to a St. Anthony’s ER
Physician, $9,880.00 to a doctor, $3,790.00 to Metro Imaging, $1,438.25 to Sullivan
Chiropractic, and $82.00 to Lemay Internal Medicine. (Doc. 6-3, ¶¶ 17, 20, 25). Thus, Plaintiff
advised Defendant that his claimed damages for medical costs were in excess of $17,000. Also,
Plaintiff did not provide the amount paid a consulting expert physician, Dr. Peter Mirkin, whom

In any action against any insurance company to recover the amount of any loss under a
policy of automobile … or other insurance except automobile liability insurance, if it
appears from the evidence that such company has refused to pay such loss without
reasonable cause or excuse, the court or jury may, in addition to the amount thereof and
interest, allow the plaintiff damages not to exceed twenty percent of the first fifteen
hundred dollars of the loss, and ten percent of the amount of the loss in excess of fifteen
hundred dollars and a reasonable attorney's fee; and the court shall enter judgment for the
aggregate sum found in the verdict.
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he saw on April 26, 2013; Plaintiff stated he would produce Dr. Mirkin’s report upon request;
and he stated, in response to Interrogatory 24, Amount Claimed, that the amount was to be
determined by a jury. In response to Interrogatory 26, asking for the amount of his lost wages,
Plaintiff said he earned $2,000 a month, and the total amount he was claiming would “be
supplemented.” In response to Interrogatory 31, asking the amount Plaintiff was seeking for
vexatious refusal to pay, Plaintiff said that, according to Missouri rules, he would answer the
Interrogatory once discovery had been completed or at a later time as ordered by the court.
(Doc. 6-3).
Plaintiff states, and Defendant does not dispute, that Dr. Mirkin’s report was re-disclosed
on January 27, 2014; the report had previously been sent, by facsimile, to Defendant, on May 8,
2013. (Doc. 6-4 at 1-4; Doc. 9 at 3). Prior to the filing of the instant lawsuit in State court,
Plaintiff had a consultive medical evaluation, on April 26, 2013, with Dr. Mirkin, a spine
surgeon, who recommended, in his report, that Plaintiff have additional treatment in the form of
therapy, steroid injections and/or spine surgery for Plaintiff’s two “rather significant” thoracic
disc herniations. Dr. Mirkin noted that Plaintiff previously did not have the type of thoracic pain
he was having, and that he had symptomology for many months. Dr. Mirkin also stated that he
recommended Plaintiff first have therapy and injections, as surgery is “indicated for recalcitrant
cases”; surgical intervention would be “very difficult as often an approach through the chest has
to be performed”; and Plaintiff “would be a candidate for a surgical option, assuming he [was]
willing to consider all risks and potential benefits.” (Doc. 6-4 at 2-4).
On February 6, 2014, Defendant filed a Certificate of Service of Second Request for
Production and Second Interrogatories. (Doc. 1-2 at 79-84). On February 18, 2014, Defendant
filed a Third Request for Production. (Doc. 1-2 at 87-92). On March 10, 2014, Plaintiff filed a

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Certificate of Mailing for Plaintiff’s Answers to Defendant’s Second Interrogatories and
Responses to Defendant’s Second Request for Production. (Doc. 1-2 at 95-99). On March 12,
2014, Defendant filed a Motion to Compel Plaintiff’s Responses to its First Set of Interrogatories
and Request for Production. (Doc. 1-2 at 104-105). On March 19, 2014, Plaintiff filed his
Response to Defendant’s Third Request for Production. (Doc. 1-2 at 126). On April 11, 2014,
the State court granted Defendant’s Motion to Compel and ordered Plaintiff to produce
responsive documents and answers. (Doc. 1-2 at 141).
On April 25, 2014, Plaintiff filed a Certificate of Mailing of Plaintiff’s Supplemental
Answers to Defendant’s First Set of Interrogatories and Supplemental Responses to Defendant’s
First Request for Production. (Doc. 1-2 at 143). In response to Interrogatory 24, the Amount
Claimed, Plaintiff stated that he was requesting the represented amount of the insurance policy
limits, $100,000, in addition to vexatious refusal to pay damages. (Doc. 1-1 at 3).
Defendant removed this matter to federal court on May 15, 2014. In the notice of
removal, Defendant states that removal was timely because it did not learn, until April 25, 2014,
when Plaintiff filed his Supplemental Answers to Defendant’s First Set of Interrogatories, that
Plaintiff was requesting the amount of the insurance policy limits, $100,000; this response
established that the matter in controversy exceeded $75,000, the jurisdictional amount for
establishing diversity jurisdiction of a federal court; and Defendant, therefore, filed the Notice of
Removal within thirty days after its “receipt of any ‘paper from which it [could] ascertain[] that
the case is one which is or has become removable.’” (Doc. 1, ¶ ¶ 6-7) (citing 28 U.S.C. §
1446(b)(3)).

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LEGAL FRAMEWORK and DISCUSSION
Federal district courts have original jurisdiction over civil actions where the matter in
controversy exceeds $75,000, exclusive of interest and costs, and where the controversy meets
the statutory diversity of citizenship requirement. 28 U.S.C. § 1332(a). “[T]he amount in
controversy is determined by the value to the plaintiff of the right sought to be enforced.”
Advance America Servicing of Ark., Inc. v. McGinnis, 526 F.3d 1170, 1173 (8th Cir. 2008)
(citing Massachusetts State Pharm. Ass'n v. Fed. Prescription Serv., Inc., 431 F.2d 130, 132 (8th
Cir. 1970)).
Relevant here is 28 U.S.C. § 1441(a), which provides that “any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.” “Where . . . the
complaint alleges no specific amount of damages or an amount under the jurisdictional
minimum, the removing party [] must prove by a preponderance of the evidence that the amount
in controversy exceeds $75,000.” In re Minn. Mutual Ins. Co. Sales Practices Litigation, 346
F.3d 830, 835 (8th Cir. 2003) (citing Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th Cir. 2000)
(“[T]he party invoking federal jurisdiction must prove the requisite amount by a preponderance
of the evidence.”).
Moreover, 28 U.S.C. § 1446(b)(1) provides that a “notice of removal of a civil action
shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not required to be served on the defendant,

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whichever period is shorter.”

Additionally, § 1446(b)(3) states:

“Except as provided in

subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may
be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which it may first be ascertained that
the case is one which is or has become removable.” (emphasis added). The time limit of §
1446(b) is “mandatory” and “strictly construed . . . in favor of state court jurisdiction.” McHugh
v. Physicians Health Plan of Greater St. Louis, 953 F. Supp. 296, 299 (E.D. Mo. 1997). The 30day time limit, however, only commences to run upon the filing of a complaint “when the
complaint explicitly discloses the plaintiff is seeking damages in excess of the federal
jurisdictional amount.” Knudson v. Systems Painters, Inc., 634 F.3d 968, 974 (8th Cir. 2011)
(quoting In Re Willis, 228 F.3d 896, 897 (8th Cir. 2000)) (emphasis added).
In addition, 28 U.S.C. § 1447(c) provides that “[a] motion to remand the case on the basis
of any defect other than lack of subject matter jurisdiction must be made within 30 days after the
filing of the notice of removal under section 1446(a).” “[U]ntimely removal is ‘precisely the
type of removal defect contemplated by § 1447(c).’” Arnold Crossroads, LLC v. Gander Mt.
Co., 751 F.3d 935, 940 (8th Cir. 2014) (quoting Things Remembered, Inc. v. Petrarca, 516 U.S.
124, 128 (1995)).
The Eighth Circuit holds that a district court is required to resolve any ambiguity as to
whether removal is proper in favor of State court jurisdiction, and that “removal jurisdiction
must be narrowly construed in favor of the nonmoving party.” Arnold Crossroads, 751 F.3d at
740 (citing In re Business Men’s Assurance Co. of America, 992 F.2d 181, 183 (8th Cir. 1993)).
The issue presently before the court is when Defendant could have first ascertained that
this matter was removable, and, thus, whether removal was timely. In support of the pending

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remand motion, Plaintiff contends that Defendant knew, well before thirty days prior to removal,
that Plaintiff was seeking damages in excess of $75,000. Particularly, Plaintiff argues that, at the
very latest, Defendant should have known, no later than January 27, 2014, when it received
Plaintiff’s First Answers to Interrogatories and Responses to Requests for Production, that
Plaintiff was seeking in excess of $75,000. (Doc. 6).
In its opposition to remand, Defendant contends that, in his original State petition,
Plaintiff did not plead a specific dollar amount, other than to allege he was seeking damages that
were fair and reasonable; prior to its receiving Plaintiff’s Supplemental Answers to Defendant’s
First Set of Interrogatories, it could not have ascertained that the amount in controversy exceeded
$75,000; and removal was timely as Defendant removed this matter within thirty days of
receiving Plaintiff’s Supplemental Answers. Defendant further argues that Dr. Mirkin’s report
indicated that surgery was a last option; that the report did not reflect estimated costs of
Plaintiff’s potential treatment; and, therefore, the report did not provide information from which
Defendant could have ascertained that this matter was removable. Defendant additionally argues
that, before receiving Plaintiff’s Supplemental Answers, Plaintiff’s quantifiable damages
amounted to only $27,383.33 ($17,000 medical specials, $2,000 lost wages, $2,050 statutory
penalty, and $6,333.33 in attorney’s fees), and that it could not have ascertained until April 25,
2014, that Plaintiff was seeking damages in excess of the federal jurisdictional amount, $75,000.2
Because Plaintiff’s State court petition court did not explicitly disclose that Plaintiff was
seeking damages in excess of $75,000, the court finds, pursuant to Eighth Circuit precedent, that
2

As stated above, Mo. Rev. Stat. § 375.420 provides for attorney’s fees, in addition to damages,
where an insurance company has refused to pay for a loss without reasonable cause or excuse.
Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 823-27 (8th Cir. 2011). In its response,
Defendant admits that Plaintiff’s quantifiable attorney’s fees were $6,333.33, based on a one
third contingency fee. (Doc. 7 at 5-6). The reasonable attorney's fee provided by statute is
included in the amount in controversy as such fees are awarded by statute. Rasmussen v. State
Farm Mut. Auto Ins. Co., 410 F.3d 1029, 1030 (8th Cir. 2005).
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the 30-day period for removal did not commence upon the filing of Plaintiff’s cause of action in
State court. See Knudson, 634 F.3d at 974; see also Hesser v. Home Depost U.S.A., Inc., 2013
WL 1914435, at *3 (8th Cir. May 8, 2013) (unpublished) (holding the Eighth Circuit has adopted
a “bright-line rule” that the 30-day period begins to run from the filing of initial complaint only
when complaint “explicitly discloses” that damages being sought exceed federal jurisdictional
amount). Based on the above stated facts, the court further finds that Defendant could not have
ascertained until April 25, 2014, that Plaintiff was seeking damages in excess of $75,000, and
that, therefore, Defendant’s removal, on May 15, 2014, was timely. See § 1446(b)(3); Knudson,
634 F.3d at 974; Hesser, 2013 WL 1914435, at *3. As such, the court further finds that
Plaintiff’s Motion to Remand should be denied.3
Accordingly,
IT IS HEREBY ORDERED that the Motion to Remand (Doc. 6) filed by Plaintiff is
DENIED. (Doc. 6).
Dated this 21st day of July, 2014.

/s// Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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Plaintiff argued, for the first time, in his Reply to Defendant’s Response to Plaintiff’s Motion to
Remand, that the value of this case may not, in fact, be worth more than $75,000. By Order,
dated July 8, 2014, in accordance with Workman v. Kawasaki Motors Corp. U.S.A., 749 F.
Supp. 1010, 1011 (W.D. Mo. 1990) (remand appropriate based on plaintiff’s stipulation that the
amount of damages claimed was less than federal jurisdictional amount, that court enter an order
placing a limit on recovery, and that the stipulation could not be revoked), this court gave
Plaintiff seven (7) days to file a stipulation that the total amount of damages he was seeking was
less than $75,000. (Doc. 13). Plaintiff did not file a timely stipulation consistent with the court’s
Order.
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