Mohler et al v. Nationwide General Insurance Company

Filing 15

MINUTE ORDER granting Plaintiff's #11 Motion to Remand. Per LCR 3(i), case will be remanded on the 15th day following the date of this Order, on 12/3/2021. Authorized by Judge Thomas S. Zilly. (MW)

Case 2:21-cv-01357-TSZ Document 15 Filed 11/18/21 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANNA MOHLER and DAN REDDING,

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Plaintiffs,

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NATIONWIDE GENERAL
INSURANCE COMPANY,

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MINUTE ORDER

Defendant.

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C21-1357 TSZ

v.

The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

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(1)
Plaintiffs’ motion to remand, docket no. 11, is GRANTED. At issue is
whether the amount in controversy exceeds $75,000 for purposes of conferring diversity
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jurisdiction on the Court. See 28 U.S.C. § 1332(a). In removing the case, defendant
Nationwide General Insurance Company (“Nationwide”) relied on a settlement demand
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letter sent by plaintiffs’ counsel on September 14, 2021. 1 See Ex. D to Hanson Decl.
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Contrary to plaintiffs’ assertion, Nationwide timely filed its Notice of Removal, docket no. 1,
within thirty (30) days after receiving “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.” See 28
U.S.C. § 1446(b)(3). Plaintiffs’ initial pleading did not allege a claim under the Insurance Fair
Conduct Act (“IFCA”), see Compl. (docket no. 1-2), and in the absence of an IFCA claim, the
maximum amount that plaintiffs sought to recover was less than $75,000. Although the IFCA
claim appeared in plaintiffs’ Amended Complaint, docket no. 1-10, Nationwide first learned of
it upon receiving the settlement demand letter, which arrived via email before service of the
Amended Complaint was effectuated. See McLean Decl. at ¶¶ 3–5 (docket no. 13).

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MINUTE ORDER - 1

Case 2:21-cv-01357-TSZ Document 15 Filed 11/18/21 Page 2 of 3

1 (docket no. 11-1). The settlement demand letter included the following summary of
damages:
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Items in Demand Letter
Amounts
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Unpaid Food Costs
$8,000 2
Withheld Depreciation
Appraisal Fee
Enhanced Damages under the CPA
Enhanced Damages under the IFCA
Emotional Damages for Insurance Bad Faith
Attorney Fees and Litigation Costs 4

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$2,826.912
$7,500
$49,390.66 3
$49,390.66
$40,000
$18,350

Total

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$175,458.23

For purposes of plaintiffs’ settlement demand, enhanced damages were computed on the
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$14,248.14

Additional Living Expenses (“ALE”), which Nationwide paid
on July 22, 2021, before being served with the original
Complaint; see Ex. A to Hanson Decl. (docket no. 11-1);

$ 2,947.19

“accounting errors,” which Nationwide paid on August 31,
2021, and as to which plaintiffs were unaware and had made
no claim; see Plas.’ Mot. at 3 (docket no. 11); and

$ 7,500.00

unpaid appraisal fees;

$24,695.33

resulting total, which if trebled would result in an increase of
$49,390.66.

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According to plaintiffs, the $8,000 in unpaid food costs, as described in the demand letter, has
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(docket no. 11). In addition, the amount of withheld depreciation ($2,826.91) is not yet owed,
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honor. See id. at 3–4 & n.2. Thus, these sums cannot be considered in determining the amount
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This assessment is contrary to law; treble damages under Washington’s Consumer Protection
Act (“CPA”) are capped at $25,000. See RCW 19.86.090.
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Costs may not be considered in calculating the jurisdictional amount. See 28 U.S.C. § 1332(a).

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MINUTE ORDER - 2

Case 2:21-cv-01357-TSZ Document 15 Filed 11/18/21 Page 3 of 3

1 The Court need not accept the figures set forth in the settlement demand if they do not
reflect a “reasonable estimate” concerning plaintiffs’ claims. See Keodalah v. Allstate
2 Ins. Co., No. C15-1412, 2016 WL 4543200, at *3 (W.D. Wash. Mar. 25, 2016) (emphasis
in original, quoting Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002)). In this
3 matter, plaintiffs’ calculations are not consistent with the standards governing IFCA
claims. To award treble damages under IFCA, a court must find that the insurer “acted
4 unreasonably in denying a claim for coverage or payment of benefits” or has violated an
enumerated rule. See RCW 48.30.015(2). With respect to two of the three items on
5 which “enhanced damages” were premised, namely ALE and “accounting errors,”
Nationwide provided the benefits either before learning of this litigation or in advance of
6 plaintiffs asserting any deficiency in payments, and inclusion of those amounts in
estimating “enhanced damages” is unsupported by IFCA itself. Rather, to the extent that
7 plaintiffs may recover treble damages under both the CPA and IFCA, which the Court
assumes for purposes of this jurisdictional analysis, see Barnes v. Foremost Ins. Co.,
8 No. C11-1302, 2011 WL 13229076, at *2 n.2 (W.D. Wash. Oct. 3, 2011), the most they
might receive would be $22,500 ($7,500 x 3) per statute. Another significant component
9 of plaintiffs’ settlement demand was $40,000 in emotional damages, which purportedly
reflected 200 days of delay in repairing plaintiffs’ kitchen, at a rate of $100 per plaintiff
10 per day. Ex. D to Hanson Decl. (docket no. 11-1). Plaintiffs’ counsel now characterizes
this figure as an “optimistic guess” or a “bold and optimistic prediction” intended merely
11 to “initiate bargaining” with a defendant that was likely starting from a position of
offering no money to settle this case. See Plas.’ Mot. at 4, 5, & 9 (docket no. 11).
12 When, as here, a plaintiff disavows a settlement demand, such estimate of damages is
insufficient, standing alone, to establish that the jurisdictional threshold has been met.
13 See Briest v. Knot Standard LLC, No. CV 20-2519, 2020 WL 2572457, at *2 (C.D. Cal.
May 20, 2020). With only $7,500 in actual damages, attorney fees of less than $18,350,
14 and, at most, $37,500 in “enhanced damages” (treble damages of $45,000 minus $7,500
to avoid duplicative recovery) in dispute, the Court concludes that it lacks subject matter
15 jurisdiction.
(2)
This matter is REMANDED to the King County Superior Court, effective
fourteen (14) days from the date of this Minute Order. The Court declines to award any
17 attorney fees or costs incurred as a result of the removal of this action.
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(3)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 18th day of November, 2021.

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Ravi Subramanian
Clerk

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s/Gail Glass
Deputy Clerk

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MINUTE ORDER - 3