Brew v. Safeco Insurance Company of Illinois

Filing 13

MEMORANDUM AND ORDER re: 10 MOTION to Remand Case to State Court to The Circuit Court of City of St. Louis, Twenty-Second Judicial Circuit filed by Plaintiff Robyn G. Brew. IT IS HEREBY ORDERED that the motion of Robyn Brew to remand is DENIED. Signed by Magistrate Judge Thomas C. Mummert, III on August 7, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBYN G. BREW, f/k/a
Robyn G. Cole,
Plaintiff,
vs.
SAFECO INSURANCE COMPANY
OF ILLINOIS,
Defendant.

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Case number 4:15cv0970 TCM

MEMORANDUM AND ORDER
Pending before the Court1 in this insurance dispute is a motion filed by plaintiff,
Robyn G. Brew, to remand her case to the state court from which it was removed – the
Circuit Court for St. Louis City, Missouri. [Doc. 10] Defendant, Safeco Insurance Company
of Illinois (Safeco), removed the action to federal court on the grounds of diversity of
citizenship. See 28 U.S.C. § 1332(a) (granting original jurisdiction to district courts in cases
in which, inter alia, parties are of different states and the amount in controversy exceeds sum
of $75,000) and 28 U.S.C. § 1441(b) (permitting removal of cases from state courts that could
have been originally filed in district courts). It is undisputed that there is diversity of
citizenship: Plaintiff is a Missouri citizen; Safeco is an Illinois corporation with its principal
place of business in that state. (See Notice ¶ 2, ECF No. 1.) It is the amount in controversy
that is at issue.

1

The case is before the undersigned United States Magistrate Judge by written consent of the
parties. See 28 U.S.C. § 636(c).

Background
Plaintiff alleges in her complaint that she was at all times relevant insured under a
policy issued by Safeco. (Compl. ¶ 3, ECF No. 2.) "Said coverage included underinsured
motorist coverage with limits for bodily injury in the amount of $100,000 each person and
$300,000 each accident." (Id.) One day in September 2013, the car she was driving was
struck by a car driven by Jill Rose when Rose ran a red light. (Id. ¶ 5-6.) Plaintiff was
injured and has, consequently, sustained damages, including having to expend money for
medical care and treatment and suffering a loss of her earning capacity. (Id. ¶ 9.)
Plaintiff has settled with Rose for the bodily injury liability limit of $25,000 per
individual in Rose's applicable insurance policy. (Id. ¶ 11-12; Mot. Ex. 1.) Plaintiff's
injuries, however, are greater than that amount. She has demanded, and been denied, "the
full amount of her loss in accordance with the policy limits for underinsured motorist
coverage." (Id. ¶ 14-16.) Consequently, she filed a breach of contract suit in state court
against Safeco requesting "judgment against the Defendant in a sum in excess of the
jurisdictional amount of $25,000.00 . . . ." (Id. at 6.)
Citing that portion of the complaint in which Plaintiff "claims the availability of
$100,000 in underinsured motorist coverage" and the $33,000 in medical bills she had
incurred prior to filing suit, Safeco removed the complaint to this court. The letter attached
to the notice of removal argues that her damages exceed $100,000. (Not. Ex. B at 2, ECF
No. 1-2.) In its answer to the complaint, Safeco argues that "it is entitled to an offset from

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any judgment for the amounts paid to Plaintiff in settlement of her claims against the alleged
Underinsured Motorist, Jill Rose." (Def. Ans. ¶ 20.)
Plaintiff seeks a remand on the grounds that Safeco has not borne its burden of
showing that the amount in controversy exceeds $75,000.
Discussion
Diversity jurisdiction exists pursuant to § 1332(a) "if there is complete diversity of
citizenship and the amount in controversy is greater than $75,000." Advance Am. Servicing
of Ark., Inc. v. McGinnis, 526 F.3d 1170, 1172 (8th Cir. 2008). "Where, as here, 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: Minnesota Mut. Life Ins. Co. Sales
Practices Litig., 346 F.3d 830, 834 (8th Cir. 2003); accord In re Prempro Prods. Liab.
Litig., 591 F.3d 613, 620 (8th Cir. 2010); Bell v. Hershey Co., 557 F.3d 953, 956 n.5 (8th
Cir. 2009). To meet this burden, the removing party must present "some specific facts or
evidence demonstrating that the jurisdictional amount has been met." Hill v. Ford Motor
Co., 324 F.Supp.2d 1028, 1036 (E.D. Mo. 2004). "Once the removing party has established
by a preponderance of the evidence that the jurisdictional minimum is satisfied, remand is
only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than
the requisite amount." Bell, 557 F.3d at 956.
Safeco has provided evidence that Plaintiff seeks the full $100,000 provided for in her
insurance policy.

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In support of her argument that her case must be remanded, Plaintiff cites Lowe v.
First Fin. Ins. Co., 2015 WL 753139 (W.D. Mo. Feb. 23, 2015). Her reliance on this case
is misplaced. In Lowe, the plaintiff had settled with the driver of the vehicle that collided
with his truck for the policy limits of that driver's liability insurance policy. Id. at *1. After
some investigation, the plaintiff discovered that the employer for whom he was working at
the time of the accident had underinsured motorist coverage under policies issued by three
separate insurance companies. Id. He filed suit in state court against those companies,
simply alleging that he was seeking to recover underinsured motorist benefits under the three
policies. Id. After the suit was removed to federal court on diversity grounds, the question
whether the amount in controversy was in excess of $75,000 arose. Id. at *2. The court
noted that in cases in which the value of the underlying claim exceeded the maximum amount
of the policy "the amount in controversy is the maximum limit of the insurer's liability under
the policy." Id. at *3. In that case, "[t]he amount of the claim can be determined with legal
certainty . . . ; where the insured seeks to recover to the fullest extent of coverage, the court
can determine the amount in controversy by referring to the face of the policy." Id.
(emphasis added). After being given an opportunity to come forward with evidence that the
amount in controversy satisfied the jurisdictional minimum, the insurance companies
produced only one policy that had underinsured motorist coverage that arguably applied, and
that policy capped the benefits at $50,000 – $25,000.01 short of the required jurisdictional
amount. Id. at *4. In the instant case, the benefits are capped at $100,000 – $24,999.99 over
the jurisdictional minimum.

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Plaintiff's citation to Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d 250 (6th Cir.
2011), is also unavailing. In that case, the plaintiffs sought a declaratory judgment that the
underinsured motorist coverage available to them was $100,000 per accident and not the
$25,000 maximum the insurer contended applied. Id. at 253. Consequently, the amount in
controversy was the difference between the two, $75,000 – one penny less than the
jurisdictional minimum. Id. at 252-53. See also Nat'l Union Fire Ins. Co. v. Maune, 2006
WL 587650, *2 (E. D. Mo. March 10, 2006) (dismissing insurance dispute for lack of
jurisdictional minimum when parties agreed that only $75,000 of the $100,000 policy limit
was in dispute).
In the instant case, Plaintiff alleges that her underinsured motorist coverage has a limit
of $100,000 for each person's bodily injuries, which she further alleges includes, but is not
limited to, a concussion, loss of consciousness, and multiple rib fractures and has caused,
among other things, "disability and disfigurement." (Compl. ¶ 9-10.) She "has demanded
the full amount of her loss in accordance with the policy limits for underinsured motorist
coverage." (Id. ¶ 14.) Those policy limits exceed the jurisdictional minimum by $24,999.99
($100,000 minus $75,000.01).
Plaintiff argues, however, that Safeco's defense that it is entitled to an offset of the
$25,000 she received from Rose's insurer defeats its position that the amount in controversy
exceeds $75,000.2
2

Plaintiff also argues that several documents are "[n]oticeably absent from [Safeco's]
Notice of Removal," including a copy of the applicable insurance policy, a good faith
assertion that the amount in controversy exceeds $75,000, evidence of Safeco's position
about the amount of underinsured motorist coverage available to satisfy her claim, and "any
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"A defendant who seeks to prove that the amount in controversy is greater than the
jurisdictional amount does not automatically concede that the jurisdictional amount is
recoverable." 14AA Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal
Practice and Procedure, § 3702.1 (4th ed. 2011). Therefore, Safeco's position that it is
entitled to a setoff does not negate, for purposes of diversity jurisdiction, Plaintiff's claim that
she should be awarded the full amount of underinsured motorist coverage provided by her
insurance policy – $100,000.3
For the foregoing reasons,
IT IS HEREBY ORDERED that the motion of Robyn Brew to remand is DENIED.
[Doc. 10]

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of August, 2015.

documents or factual proof whatsoever as to the amount in controversy." (Mem.at 4, ECF
No. 11.) These documents's absence do not require remand. The amount in controversy is,
as discussed herein, established by Plaintiff's complaint.
3

That Safeco's affirmative defense does not control the amount in controversy issue
is particularly evident when the merits of that defense are not clearly established under the
applicable Missouri law. See e.g. Manner v. Schiermeier, 393 S.W.3d 58, 66 (Mo. 2013)
(rejecting argument that insurer was entitled to offset of the amount insured had received
from underinsured tortfeasor).
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