Koerner v. GEICO Casualty Company

Filing 20

MEMORANDUM (Order to follow as separate docket entry)Because Defendant has presented sufficient evidence to show that federal jurisdiction is proper in this case and the case was removed from the Pike County Court of Common Pleas within the thirty-day statutory period prescribed under 28 U.S.C. § 1446(b), Plaintiffs Motion for Remand (Doc. 10) is denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/18/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUDITH KOERNER,

:
:CIVIL ACTION NO. 3:17-cv-455
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
GEICO CASUALTY COMPANY,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Remand
(Doc. 10) filed on April 5, 2017.

With the motion, Plaintiff seeks

remand on the basis that Defendant did not remove this case within
the allowable time period.

(Id.)

The Court concludes the motion

is properly denied.
I. Background
As set out in the Second Amended Complaint (the operative
complaint in this action) the case arises from a motor vehicle
accident which took place on May 4, 2016.

(Doc. 8 ¶ 5.)

Plaintiff

alleges that she was injured when objects from an unidentified
vehicle “were thrust into the roadway” on which Plaintiff was
traveling and her car was forced off the road into a guardrail.
(Id.)

Plaintiff had a policy of automobile insurance with

Defendant at the relevant time.

(Doc. 8 ¶ 3.)

Because Plaintiff

sustained injuries and damages as a result of the accident, she
sought uninsured motorist benefits under her policy with Defendant.
(Doc. 8 ¶ 8.)

Plaintiff originally filed a Complaint in the Pike County
Court of Common Pleas on May 19, 2016.

(See Doc. 1-1 at 4-6.)

The

Complaint does not quantify damages but states the following: “As a
result of the subject accident, Plaintiff sustained damages caused
by an unidentified and thus uninsured motorist” (Compl. ¶ 7; Doc.
1-1 at 5); “As a result of the damages sustained by Plaintiff in
the underlying accident as aforesaid, Plaintiff is entitled to
Uninsured Motorist benefits under the policy issued by the UM
defendant herein” (Compl. ¶ 8; Doc. 1-1 at 5).

Plaintiff makes no

other claim of entitlement in the Complaint but in the ad damnum
clause she states that “Plaintiff JUDITH KOERNER demands judgment
against Defendant GEICO CASUALTY COMPANY, in the amount of damages
she sustained as a result of the aforesaid that was caused by an
unidentified and thus uninsured motorist, together with costs,
disbursements, and all other relief deemed just and proper by the
Court.”

(Compl.; Doc. 1-1 at 5.)

On February 22, 2017, Plaintiff filed an Amended Complaint in
the Court of Common Pleas of Pike County.

(Doc. 1-1 at 53-62.)

The Amended Complaint contains the same provisions quoted above.
(Am. Compl. ¶¶ 7, 8, ad damnum clause; Doc. 1-1 at 54.)

The

Amended Complaint adds individualized counts for “Breach of
Contract” (Doc. 1-1 at 55) and “Bad Faith - Common Law and
Statutory” (Doc. 1-1 at 56).

Under the Breach of Contract count,

Plaintiff alleges that Defendant “breached the terms and provisions

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of the policy of insurance by failing to make payment of uninsured
motorist benefits” to her and states she “is entitled to recover
uninsured motorist benefits from the defendant.”
17, 19; Doc. 1-1 at 56.)

(Am. Compl. ¶¶

The Breach of Contract ad damnum clause

is the same as previously quoted.

(Doc. 1-1 at 56.)

Under the

“Bad Faith - Common Law and Statutory” count, Plaintiff alleges
that Defendant “failed to comply with the implied covenants of good
faith and fair dealing contained within the policy of insurance,”
and Defendant is liable to her for common law bad faith damages and
statutory bad faith damages which may include punitive damages.
(Am. Compl. ¶¶ 23, 25, 27-29; Doc. 1-1 at 57-58.)

In succeeding

paragraphs of the Amended Complaint, Plaintiff specifically states
that Defendant is liable for punitive damages and she is entitled
to recover them.

(Am. Compl. ¶¶ 32, 36, 37; Doc. 1-1 at 60-61.)

Ad damnum clause demands for the bad faith claim include the award
of punitive damages.

(Doc. 1-1 at 61.)

Defendant filed the Notice of Removal on March 13, 2017,
asserting that removal was appropriate based on diversity
jurisdiction.

(Doc. 1.)

Stating that the policy limit of

Uninsured Motorist coverage in the policy at issue is $15,000,
Defendant notes that Plaintiff first made a demand for punitive
damages in the Amended Complaint and a demand for punitive damages
generally satisfies the jurisdictional amount for diversity of
citizenship purposes.

(Id. at 2-3 (citing Golden v. Golden, 382

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F.3d 348, 355 (3d Cir. 2004)).)

Defendant asserts that the Notice

of Removal is timely because it was filed within thirty (30) days
of receipt by the defendant of service of a copy of an amended
pleading from which it could first be ascertained that the case was
removable on the basis of diversity
(citing 28 U.S.C. § 1446(b)).)

jurisdiction.

(Doc. 1 at 4

Defendant explains that it was not

until Plaintiff filed the Amended Complaint on February 22, 2017,
and made a demand for punitive damages for the first time that it
could be ascertained that the action became removable based on
diversity jurisdiction (id. at 4).
With the pending motion, Plaintiff asserts that the Notice of
Removal was not timely filed.

(Doc. 10.)

She principally argues

that, if this case is removable now, it was removable at the
original Complaint because the amount in controversy in the
original Complaint exceeded the jurisdictional minimum required for
removal to federal court, and therefore the filing of the Amended
Complaint did not restart the clock for the thirty-day time period
under 28 U.S.C. § 1446.

(See, e.g., Doc. 11 at 4-5.)
II. Discussion

As set out above, Plaintiff seeks remand to the Court of
Common Pleas of Pike County because Defendant’s Notice was not
timely filed.

(Doc. 11 at 9.)

Defendant responds that the time

for removal did not begin until Plaintiff filed her Amended
Complaint, and, therefore, the Notice of removal was timely filed.

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(Doc. 13-2 at 4.)
The statutory provision at issue here is 28 U.S.C. § 1446
which governs the procedure for removal.

Specifically, § 1446(b)

addresses the general requirements regarding the time for filing a
removal action.
(1) The notice of removal of a civil
action or proceeding 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, whichever period is shorter.
. . . .
(3) 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
28 U.S.C. § 1446(b).

Subsection (c) addresses the requirements for

cases based on diversity of citizenship, including the following
pertinent provisions:
(1) A case may not be removed under
subsection (b)(3) on the basis of
jurisdiction conferred by section 1332 more
than 1 year after commencement of the action,
unless the district court finds that the
plaintiff has acted in bad faith in order to
prevent a defendant from removing the action.

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(2) If removal of the action is sought
on the basis of the jurisdiction conferred by
section 1332(a), the sum demanded in good
faith in the initial pleading shall be deemed
to be the amount in controversy . . . .
(3)(A) If the case stated by the initial
pleading is not removable solely because the
amount in controversy does not exceed the
amount specified in section 1332(a),
information relating to the amount in
controversy in the record of the State
proceeding, or in responses to discovery,
shall be treated as an ‘other paper’ under
subsection (b)(3).
28 U.S.C. § 1446(c).
Plaintiff does not argue that the amount in controversy is not
satisfied.

Therefore, the only issue to be decided is whether

Defendant’s notice of removal was timely filed.
As set out above, Defendant’s Notice of Removal included
evidence indicating that Plaintiff’s policy provided $15,000 of
uninsured motorist coverage at the time of the accident,
Plaintiff’s complaint alleged entitlement to uninsured motorist
coverage under her policy, and she did not seek punitive damages
until she filed her Amended Complaint.

(Docs. 1, 1-1.)

With her

motion and supporting brief, Plaintiff does not directly refute
evidence presented in the Notice of Removal, nor does her reply
brief refute the relevant authority cited in Defendant’s opposition
brief which provides that the amount in controversy is generally
decided by the complaint itself (Doc. 13-2 at 9 (citing Angus v.
Shiley, 989 F.2d 142, 143 (3d Cir. 1993)), general allegations of

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injury do not place a defendant on notice of an amount in
controversy in excess of $75,000 (Doc. 13-2 at 12 (citing Inagnanti
v. Columbia Props. Harrisburg LLC, No. 10-1651, 2010 U.S. Dist.
LEXIS 51983, at *9 (E.D. Pa. May 25, 2010)), and the “service of a
complaint does not trigger the removal period when the complaint
fails to allege with specificity damages that permit a defendant to
conclude, to a legal certainty, that an amount in controversy
creates federal jurisdiction” (Doc. 13-2 at 12 (citing Inaganti,
2010 U.S. Dist. LEXIS 51983, at *9)).
In support of her argument that the amount in controversy in
the original Complaint exceeded the jurisdictional amount and,
therefore, triggered the thirty-day period, Plaintiff first
contends she was covered by a policy which provided for $100,000 of
uninsured motorist coverage at the time of the accident and she
“did not sign any documentation regarding a step-down in her
coverage.

Thus, any step-down is void ab initio and Plaintiff was

covered then, and is covered now, under a $100,000 uninsured
motorist benefits policy.”

(Doc. 11 at 5 (citing Exhibit B).)

She

next argues that “even if Plaintiff were only covered by a $15,000
policy, Plaintiff’s Complaint was removable at the time it was
filed and served” based on the ad damnum clause which sought
judgment “in the amount of damages sustained” as a result of the
accident, and therefore, “at the time the Complaint was filed, the
amount in controversy was not limited and exceeded the $75,000.00

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jurisdictional minimum.”

(Doc. 11 at 5-6.)

Plaintiff also finds

support for her position in the fact that the Pike County filing
cover sheet indicated that she sought damages in excess of the
arbitration limits of $40,000 and, therefore, was not limiting
damages to the $15,000 under the insurance policy.

(Doc. 11 at 7.)

Finally, Plaintiff asserts that her response to Defendant’s request
for production of documents sent to Defendant on December 29, 2016,
included medical records which showed extensive injuries and,
therefore, Defendant should have known the Complaint was removable
as of that date.

(Id. at 7-8.)

The Exhibit which Plaintiff cites in support of her first
argument that she had $100,000 in uninsured motorist coverage at
the time of the accident is a policy Declarations Page dated June
9, 2015, indicating a Coverage Period of June 9, 2015, through
December 12, 2015, and uninsured motorist coverage of $100,000.
(Doc. 11-2 at 1.)

Because the accident occurred on May 4, 2016

(see Doc. 8 ¶ 5), this Declarations Page is not responsive to
Defendant’s assertion supported by exhibits indicating uninsured
motorist coverage of $15,000 at the time of the accident (Doc. 1-1
at 8-17).

Even though Plaintiff says she did not agree to the

decrease in coverage (Doc. 11 at 5), documentation shows that the
policy in effect at the time of the accident provided for $15,000
in uninsured motorist coverage.

(Doc. 1-1 at 8-17.)

Therefore,

Defendant would not have ascertained that the amount in controversy

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in the Complaint exceeded the jurisdictional limit for diversity
based on the policy’s uninsured motorist coverage.
Similarly, the argument that the amount in controversy in the
Complaint exceeded $75,000 because Plaintiff sought more than the
uninsured motorist coverage is unavailing in that her numbered
paragraphs specifically identify only entitlement to uninsured
motorist coverage under the policy (Compl. ¶ 8; Doc. 1-1 at 5) and
she merely mentions that she was injured with no indication of the
nature or severity of her injuries (Compl.
5).

¶¶ 5, 6; Doc. 1-1 at

Her assertion that her suit for the full amount of damages

sustained in the accident exceeded $75,000 is conclusory and not
supported by the Complaint itself.

The same is true of her

averment that the Pike County filing cover page indicating damages
in excess of $40,000 should have made clear to Defendant that the
amount in controversy exceeded the $15,000 uninsured motorist
coverage and the jurisdictional limit for federal diversity.
11 at 7.)

(Doc.

Courts have routinely found that the type of boilerplate

language contained here in the Complaint and cover sheet does not
allow a defendant to conduct an objective calculation of damages
that would have provided notice of an amount in controversy in
excess of $75,000.

Bishop v. Sam’s East, Inc., Civ. A. No. 08-

4550, 2009 WL 1795316, at *4 (E.D. Pa. June 23, 2009) (citing Brown
v. Modell’s PA II, Inc., No. 08-1528, 2008 WL 2600253, at *2 (E.D.
Pa. Jan. 1, 2008)); see also Craul v. Wal-Mart Stores East, LP, No.

9

4:12-CV-1380, 2012 WL 6823181, at *3 (M.D. Pa. Nov. 29, 2012).
Furthermore, to accept Plaintiff’s conclusions would be to support
the proposition that the basis for removal is apparent and must
take place whenever a plaintiff seeks compensation for unspecified
injuries in general terms and/or when the state court filing cover
sheet indicates damages sought in excess of the policy limits.
Plaintiff cites no authority supporting such broad application of
the removal statute and the Court does not find such application
practicable or advisable.
Plaintiff’s remaining argument that Defendant should have
known that the Complaint was removable when she filed her response
to Defendant’s request for production of documents on December 29,
2016, is a slightly closer question at first blush because
Plaintiff lists the injuries identified in the documents provided.
(See Doc. 11 at 7.)

However, a full review of the matter shows

that the information did not provide the requisite level of
certainty that the amount in controversy exceeded $75,000.
Plaintiff notes that, although the Third Circuit Court of
Appeals has not defined “other paper” for purposes of § 1446(b)(3),
district courts within the Circuit have concluded that discovery
responses constitute “other paper” for purposes of assessing
removal.

(Doc. 11 at 8 n.3 (citing Broderick v. Dellasandro, 859

F. Supp. 176, 178 (E.D. Pa. 1994); Minissale v. State Farm Fire &
Cas. Co., 988 F. Supp. 2d 472, 477-78 (E.D. Pa. 2013)).)

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Other

circuit courts and district courts within the Third Circuit have
concluded that the “other paper” question must be followed by the
inquiry of whether the removing defendants may have ascertained
from the “other paper” that the case had become removable.

Bosky

v. Kroger Texas, LP, 288 F.3d 208, 210 (5th Cir. 2002); DeBry v.
Transamerica Corp., 601 F.2d 480 (10th Cir. 1979); Boggs v. Harris,
Civ. No. 16-971,

—--F. Supp. 3d—--, 2016 WL 7403872, at *10 (W.D.

Pa. Dec. 22, 2016); Efford v. Milam, 368 F. Supp. 2d 380, 385 (E.D.
Pa. 2005).

Importantly, these cases have all concluded that the

use of the word “ascertain” in § 1446(b)(3) means that the thirtyday removal period is triggered only when the documents “make it
‘unequivocally clear and certain’ that federal jurisdiction lies.”
Efford, 368 F. Supp. 2d at 385 (quoting Bosky, 288 F.3d at 212);
DeBry, 601 F.2d at 489; Boggs, 2016 WL 7403872, at *11.
Defendant does not dispute that the documents produced could
be considered “other paper” for purposes of § 1446(b)(3) but points
to the lack of damage limitations and the lack of certainty in
information provided in Plaintiff’s responses to show that the
documents did not trigger the thirty-day period: Plaintiff
expressly limited her damages in her responses to interrogatories
by stating that she was not making claims for past or future wage
loss; and she responded to the request to “[s]et forth an itemized
account of all damages” suffered as result of the accident with a
statement that she could not provide an itemized account “at this

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juncture” because of ongoing medical treatment and she was “still
investigating the accident, medical condition, and damages and
losses that she sustained.”

(Doc. 13-2 at 17.)

In her reply

brief, Plaintiff does not respond to Defendant’s cited evidence or
to the assertion that the “discovery responses did not place GEICO
in a position of legal certainty that the amount in controversy was
above $75,000, as Plaintiff herself could not provide an itemized
account of her damages.”

(Id.)

Considered in the proper factual

and legal context, Plaintiff has not provided a basis to conclude
that medical records supplied in response to a request for
production of documents makes the amount in controversy
ascertainable--the documents do not “make it unequivocally clear
and certain that federal jurisdiction lies.”
2d at 385 (internal quotation omitted).

Efford, 368 F. Supp.

This is particularly so

when the operative complaint at the time only alleged with
specificity that Plaintiff was entitled to uninsured motorist
benefits from Defendant and those benefits under the policy were
$60,000 shy of the amount in controversy required for federal
jurisdiction.

Though discovery information may constitute “other

paper from which it may first be ascertained that the case is one
which is or has become removable,” 28 U.S.C. § 1446(b)(3), in this
case the facts do not lead to the conclusion that the provision
applies here.
In her reply brief, Plaintiff raises additional reasons for

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the Court to remand this matter: principles of convenience and
comity favor remand; and factual issues exist regarding Plaintiff’s
policy.

(Doc. 17 at 5-6.)

Because it is improper for a party to

raise a new argument in a reply brief, see, e.g., Bishop, 2009 WL
1795316, at *5, discussion of these issues is not warranted here.
However, the Court notes that to the extent Plaintiff notes there
is related pending litigation in State court, she does not show how
that litigation interferes with this Court’s resolution of the
above-captioned matter.

(See Doc. 17 at 5.)

With Plaintiff’s

assertion that this Court should not exercise jurisdiction while
factual issues regarding the amount of coverage exist, she does not
dispute that she has requested punitive damages in her Second
Amended Complaint and she does not contradict authority which
supports jurisdiction when punitive damages are sought.
13-2 at 15 (citing Golden, 382 F.3d at 355)1.)

(See Doc.

Golden explained

that
[c]laims for punitive damages may be
aggregated with claims for compensatory
damages unless the former are “‘patently
frivolous and without foundation.’” Packard
[v. Provident Nat. Bank, 994 F.2d 1039, 1046
(3d Cir. 1993)], (quoting Gray v. Occidental
Life Ins. Co., 387 F.2d 935, 936 (3d Cir.
1968)). Punitive damage claims are per se
“‘patently frivolous and without foundation’”
if they are unavailable as a matter of state
1

As noted in Smith v. Albert Einstein Medical Center, Civ. A.
No. 08-05689, 2009 WL 1674615, at *5 (E.D. Pa. June 11, 2009),
Golden was superseded on other grounds by Marshall v. Marshall, 547
U.S. 293 (2006).
13

substantive law. See In re Corestates Trust
Fee Litig., 39 F.3d 61, 64 (3d Cir. 1994);
Packard, [994 F.2d at 1046]. . . . If
appropriately made, therefore, a request for
punitive damages will generally satisfy the
amount in controversy requirement because it
cannot be said to a legal certainty that the
value of the plaintiff’s claim is below the
statutory minimum.
382 F.3d at 355; see also Frederico v. Home Depot, 507 F.3d 188,
199 (3d Cir. 2007).

As Defendant notes, Pennsylvania’s Bad Faith

statute makes punitive damages available to Plaintiff and, in
theory, makes the amount in controversy in excess of $75,000.
Therefore, federal court jurisdiction is proper irrespective of the
amount of uninsured motorist coverage in Plaintiff’s insurance
policy and the precise amount of coverage is not relevant to the
removal/remand question at hand.
III. Conclusion
Because Defendant has presented sufficient evidence to show
that federal jurisdiction is proper in this case and the case was
removed from the Pike County Court of Common Pleas within the
thirty-day statutory period prescribed under 28 U.S.C. § 1446(b),
Plaintiff’s Motion for Remand (Doc. 10) is denied.

An appropriate

Order is filed simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 18, 2017
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