Woods et al v. Nationwide Insurance Company

Filing 17

MEMORANDUM OPINION AND ORDER DENYING 5 MOTION TO REMAND. Signed by Senior Judge Frederick P. Stamp, Jr. on 4/25/2014. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BENJAMIN WOODS and MELANIE M. WOODS,
husband and wife,
Plaintiffs,
v.

Civil Action No. 5:14CV34
(STAMP)

NATIONWIDE INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND
I.

Procedural History

The plaintiffs, Benjamin Woods and Melanie Woods, originally
filed this action in the Circuit Court of Hancock County, West
Virginia on December 31, 2013.

The plaintiffs filed an amended

complaint on January 3, 2014.

The Woods allege that they are

entitled

to

recover

damages

from

the

defendant,

Nationwide

Insurance Company (“Nationwide”), under their car insurance policy
with the defendant that included uninsured motorist coverage.

The

plaintiffs further allege that on February 24, 2012, Benjamin Woods
was seriously injured in a head-on collision with an uninsured
motorist, Sidney D. Cumpston (“Cumpston”), and that Cumpston was at
fault for the accident.

The plaintiffs make three claims: general

damages for uninsured motorist benefits, first party bad faith, and
loss of spousal consortium.
The defendant thereafter filed a motion to dismiss which was
fully briefed in the state court but not decided.

In the motion to

dismiss, the defendant argued that the plaintiffs’ claim for
uninsured

motorist

benefits

should

be

dismissed

plaintiffs had not complied with West Virginia law.

because

the

The defendant

asserted that West Virginia law holds that in order to be entitled
to uninsured motorist damages, a plaintiff must first seek recovery
from the tortfeasor.

That motion has now been withdrawn as the

plaintiffs cured this oversight by filing a separate action against
the tortfeasor, Cumpston and his estate, on February 24, 2014 in
the Court of Common Pleas of Washington County, Pennsylvania.1

The

defendant then removed the action to this Court on March 14, 2014.
The plaintiffs’ motion to remand followed.
In its notice of removal, the defendant argues that removal is
properly based on diversity jurisdiction.

The defendant contends

that removal was not proper when the complaint was initially filed
because the damages that were being sought by the plaintiffs would
not have met the $75,000.00 threshold required to bring an action
under the umbrella of federal jurisdiction.

The defendant asserts

that this was so because the plaintiffs had not filed an action
against the tortfeasor, Cumpston.

Thus, the defendant argues, the

plaintiffs were not entitled to any direct damages because the
plaintiffs’ uninsured motorist policy was not properly at issue and
its $100,000.00 policy limit could not be used to compute possible

1

The Court notes that the plaintiffs added Cumpston’s estate
as a party on February 27, 2014.
2

damages.

As such, the defendant contends that it rightfully

removed after February 24, 2014, the date the plaintiffs brought
suit against Cumpston, because the amount in controversy then, and
only then, met the $75,000.00 threshold for diversity jurisdiction.
Thus, the defendant asserts that it removed within 30 days of
notice that the requirements for diversity jurisdiction had been
met.
The plaintiffs argue in their motion to remand that the
defendant was aware that there was diversity and the amount in
controversy exceeded $75,000.00, exclusive of interest and costs,
from the time the plaintiffs served their amended complaint on
January 3, 2014, if not from the date of Benjamin Woods’ accident
on February 24, 2012.

The plaintiffs argue that they had made the

defendant aware that they were claiming damages for the uninsured
motorists policy which is a claim of $100,000.00 since at least May
8, 2013, and have provided letters from plaintiffs’ counsel to
support this assertion.

Accordingly, the plaintiffs contend that

the defendant’s notice of removal on March 14, 2014 was untimely as
it was filed more than 30 days after January 3, 2014, the date the
plaintiffs filed in state court against the defendant, which is the
latest date that the defendant was on notice that the amount in
controversy exceeded $75,000.00, exclusive of interests and costs.
In its response, the defendant makes the same argument as in
its

notice

of

removal,

that

it

3

did

timely

file

because

the

plaintiffs did not bring suit against Cumpston until February 24,
2014.

Further, the defendant asserts that it did not have to file

until after the Cumpston suit was filed in Pennsylvania because
under West Virginia law, the insured must establish that the
tortfeasor is liable in order for the insured to be eligible for
uninsured motorists damages.

Thus, the plaintiffs had no true

claim to the uninsured motorists damages until filing against
Cumpston’s estate.

Finally, the defendant asserts that it did not

receive notice of the Cumpston action until March 3, 2014, when it
received the plaintiffs’ second motion to amend the complaint from
the Cumpston action proceedings.

ECF No. 1, Ex. B.

The plaintiffs reiterate their earlier arguments in their
reply.

The motion to remand is now fully briefed and ripe for

decision.

For the reasons that follow, this Court finds that the

motion to remand must be denied.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the

amount

in

controversy

exceeds

$75,000.00,

interests and costs pursuant to 28 U.S.C. § 1332(a).

4

exclusive

of

Pursuant to

28 U.S.C. §§ 1446(b)(1) & (3), removal of a civil action is timely
only if it is filed “within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading . . .” or, “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.” With regard to cases removed pursuant to 28
U.S.C. § 1332, “[i]f the case stated by the initial pleading is not
removable solely because the amount in controversy does not exceed
[the jurisdictional amount], 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)(3)(A).

The party seeking removal bears the burden of establishing
federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co.,
Inc., 29 F.3d 148, 151 (4th Cir. 1994).

Removal jurisdiction is

strictly construed, and if federal jurisdiction is doubtful, the
federal court must remand.

Id.

Although courts strictly construe

the statute granting removal jurisdiction, Doe v. Allied Signal,
Inc., 985 F.2d 908, 911 (7th Cir. 1993), the court is not required
“to leave common sense behind” when determining the amount in
controversy.

Mullens v. Harry’s Mobile Homes, 861 F. Supp. 22, 24

5

(S.D. W. Va. 1994). When the amount in controversy is not apparent
on the face of the plaintiff’s complaint, the federal court must
attempt to ascertain the amount in controversy by considering the
plaintiff’s cause of action as alleged in the complaint and any
amendments thereto, the notice of removal filed with a federal
court, and other relevant materials in the record.

14C Charles

Allen Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3725 at 73 (3d ed. 1998).

However, the court is limited to

examining only evidence that was available at the moment the
petition for removal was filed.

Chase v. Shop ‘N Save Warehouse

Foods, 110 F.3d 424, 428 (7th Cir. 1997).
III.

Discussion

The defendant asserts that the amount in controversy did not
exceed $75,000.00 until after the plaintiffs brought suit against
Cumpston on February 24, 2014, and thus successfully cured their
defect as to the uninsured motorist claim.

As such, by filing a

notice of removal on March 14, 2014, the defendant argues it was
within

the

30-day

§§ 1446(b)(3).

removal

period

pursuant

to

28

U.S.C.

On the other hand, the plaintiffs contend that the

defendant was aware that the plaintiffs were making the uninsured
motorist claim from at least the beginning of January 2014 when
they filed their amended complaint.
The burden of establishing that the amount in controversy
exceeds $75,000.00 rests with the party seeking removal. Mulcahey,

6

29

F.3d

at

151.

“preponderance

of

This

Court

evidence”

has

consistently

standard

to

applied

determine

the

whether

a

defendant has met its burden of proving the amount in controversy.
When no specific amount of damages is set forth in the complaint,
the defendant bears the burden of proving that the claim meets the
requisite jurisdictional amount.

Mullins, 861 F. Supp. at 23.

It is unclear based on the face of the amended complaint the
amount of damages the plaintiffs are seeking because a sum certain
is not stated.

However, the plaintiffs argue that they made clear

to the defendant that they were seeking the full amount of the
uninsured motorist policy which was $100,000.00 at the time of
filing the complaint, if not earlier.

Cumpston, however, who is

not at this time a party to this action, had not been sued by the
plaintiffs until February 24, 2014. Further, the defendant had not
received formal notice of this until March 3, 2014, which is
supported by Exhibit B of the defendant’s notice of removal.
The defendant has acknowledged, through its motion to withdraw
the motion to dismiss, that the plaintiffs cured the defect in
their complaint pursuant to West Virginia precedent by instituting
the

action

against

Cumpston

and

his

estate.

This

same

acknowledgment allows the Court to deny remand because the same
West Virginia precedent provided the starting point for the 30-day
time period applicable to removal.

7

Under West Virginia case law, a plaintiff may sue his/her own
uninsured motorist insurance carrier (1) if “the plaintiff first
sues

the

tortfeasor

.

.

.

[(2)]

after

settling

with

the

tortfeasor’s liability carrier if the settlement was for the full
policy limits and the uninsured/underinsured carrier waived its
right of subrogation against the tortfeasor,” or (3) the plaintiff
secures a judgment from the tortfeasor.

Harman v. State Farm Mut.

Auto. Ins. Co., 434 S.E.2d 391, 394 (1993) (citation omitted);
Postlethwait v. Old Boston Colony Insurance Co., 432 S.E.2d 802, at
Syl. pts. 2, 4 (W. Va. 1993).

In this case, the plaintiffs only

fulfilled the first of the three possible prerequisites when they
brought suit against Cumpston and his estate on February 24, 2014.
Knowing this law, the defendant did not file a notice of removal
until it was noticed of the Cumpston action in Pennsylvania which
then brought into play the $100,000.00 uninsured motorist policy.
As such, this is an instance where the claims in “the initial
pleading [were] not removable, [and] a notice of removal [was]
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.”
§ 1446(b)(3).

28 U.S.C.

Thus, this case cannot be remanded because the

defendant did in fact remove within the 30-day time period which
started to accrue on February 24, 2014, at the earliest (when the

8

plaintiffs filed suit) and March 3, 2014, at the latest (when the
defendant received the notice).
Accordingly, the defendant has shown that it is more likely
than not that the amount in controversy did not exceed $75,000.00,
exclusive of interest and costs, until after the dates listed
above.

The plaintiffs’ motion to remand must be denied.
IV.

Conclusion

Based on the analysis above, the plaintiffs’ motion to remand
is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

April 25, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9