Jackson v. American National Property and Casualty Company

Filing 12

MEMORANDUM OPINION AND ORDER the Court finds that it has diversity jurisdiction over this matter; denying plaintiff's 4 MOTION to Remand. Signed by Judge Thomas E. Johnston on 11/17/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TARA L. JACKSON
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-03802

AMERICAN NATIONAL PROPERTY
AND CASUALTY COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Remand. (ECF No. 4.) For the reasons
discussed below, the Court DENIES the motion.
I. BACKGROUND
This case arises out of an insurance claim involving damage to Plaintiff’s home, and
particularly the floors in her home, in Fayette County, West Virginia, allegedly caused by a 2012
storm. (See ECF No. 1-1 at 6 ¶ 3; ECF No. 5 at 1–2.) Defendant denied the claim after a
structural engineer discovered problems at the home indicating that the damage actually arose from
“settling and a structural/construction defect[,] which are specifically excluded from coverage
under Plaintiff’s policy.” (See ECF No. 6 at 3.) Plaintiff is a resident of West Virginia, (ECF
No. 1-1 at 6 ¶ 1), and Defendant is “a foreign corporation,” (ECF No. 1 at 2).

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On July 11, 2017, Plaintiff filed her Complaint in the Circuit Court of Fayette County,
West Virginia. (ECF No. 1 at 1.) The Complaint states that because Defendant refused to pay
Plaintiff under the insurance policy, Plaintiff has “suffered damages by way of unpaid insurance
proceeds, as well as consequential damages because her house was not repaired in a timely
fashion.” (ECF No. 1-1 at 6–7 ¶ 6.) It includes three counts: (1) breach of insurance contract,
(2) violations of the West Virginia Unfair Trade Practices Act (“UTPA”), and (3) breach of good
faith and fair dealing pursuant to Hayseeds. (See id. at 6–9 (citing Hayseeds, Inc. v. State Farm
Fire & Cas., 352 S.E.2d 73 (W. Va. 1986)).) The Complaint requests compensatory damages,
statutory damages under the UTPA, general damages “for annoyance, aggravation and
inconvenience,” damages “for loss of use of the insurance proceeds,” and attorney fees and costs.
(See id.)
Defendant removed the case to this Court on August 10, 2017, asserting that the sole basis
for this Court’s subject-matter jurisdiction is diversity pursuant to 28 U.S.C. § 1332. (See ECF
No. 1 at 1.) Plaintiff filed the current Motion to Remand on September 11, 2017, in which she
asserts that this Court lacks diversity jurisdiction over the matter because the amount in
controversy is below the $75,000 requirement. (See ECF No. 5 at 3–4.) Defendant responded
to the motion on September 22, 2017, (ECF No. 6), and Plaintiff did not file a reply brief. As
such, this motion is briefed and ripe for adjudication.
II. LEGAL STANDARD
Article III of the United States Constitution provides, in pertinent part, that “[t]he judicial
Power shall extend . . . to Controversies . . . between Citizens of different States.” U.S. Const.
art. III, § 2. “The district courts shall have original jurisdiction of all civil actions where the matter
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in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a)(1).
Congress provided a right to remove a case from state to federal court under 28 U.S.C.
§ 1441. This statute states, in relevant part:
Except as otherwise expressly provided by Act of Congress, 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.
28 U.S.C. § 1441(a). Because removal of civil cases from state to federal court infringes state
sovereignty, federal courts strictly construe the removal statute and resolve all doubts in favor of
remanding cases to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109
(1941); see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(“Because removal jurisdiction raises significant federalism concerns, we must strictly construe
removal jurisdiction.” (citation omitted)).
The party asserting federal jurisdiction bears the burden of proof. Landmark Corp. v.
Apogee Coal Co., 945 F. Supp. 932, 935 (S.D. W. Va. 1996). “A defendant that removes a case
from state court in which the damages sought are unspecified, asserting the existence of federal
diversity jurisdiction, must prove by a preponderance of the evidence that the value of the matter
in controversy exceeds the jurisdictional amount.” Id. (citing Gaus v. Miles, Inc., 980 F.2d 564,
567 (9th Cir. 1992)).

“This test is framed alternatively as a requirement that a defendant

demonstrate that it is more likely than not that the amount in controversy exceeds the jurisdictional
amount.” Id. (citation omitted). “To satisfy this burden, a defendant must offer more than a bare
allegation that the amount in controversy exceeds $75,000,” Judy v. JK Harris & Co., No. 2:10–
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cv–01276, 2011 WL 4499316, at *3 (S.D. W. Va. Sept. 27, 2011) (citation omitted), and must
supply evidence regarding the amount at issue. See McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481,
489 (S.D. W. Va. 2001).

“In so doing, he may rely upon the entirety of the facts and

circumstances comprising the plaintiff’s damages claim.” Judy, 147 F. Supp. 2d at 489 (citation
omitted).
In evaluating a party’s claim to federal jurisdiction, a court should look toward the
circumstances as they existed at the time the notice of removal was filed. See Dennison v.
Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir. 2008) (“[F]ederal jurisdiction . . . is
fixed at the time the . . . notice of removal is filed.” (citation omitted)). In particular, where the
plaintiff’s monetary demand is not specified in the complaint, “[t]he value of the matter in
controversy . . . is determined by considering the judgment that would be entered if plaintiff
prevailed on the merits.” Landmark Corp., 945 F. Supp. at 936–37 (citation omitted). To
calculate the amount in controversy, a court may consider the entire record and make an
independent evaluation of whether the amount in controversy is satisfied. See Grubb v. Jos. A.
Bank Clothiers, Inc., No. 2:05-0056, 2005 WL 1378721, at *5 (S.D. W. Va. June 2, 2005) (citation
omitted).
III. DISCUSSION
The sole dispute between the parties as to this motion is whether the Court has diversity
jurisdiction over this matter. (See ECF No. 5 at 3–4; ECF No. 6 at 4–5.) Defendant asserts—
and Plaintiff does not contest—that there is complete diversity between the parties. (See ECF No.
1 at 1–2; ECF No. 5 at 3.) Rather, the parties dispute whether the amount in controversy exceeds
$75,000. (ECF No. 5 at 3–4; ECF No. 6 at 4–5.)
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Plaintiff does not specify an amount for the damages that she seeks in the Complaint. (See
ECF No. 1-1 at 6–9; ECF No. 5 at 3.) Defendant claims in its Notice of Removal that the amount
in controversy exceeds $75,000 for several reasons. First, Defendant states that while Plaintiff
does not specify an amount of compensatory damages, they allegedly arise out of “severe [real]
damage.” (ECF No. 1 at 2 (alteration in original).) Further, Defendant notes that Plaintiff is
seeking statutory damages pursuant to the UTPA and “damages including attorneys’ fees pursuant
to Hayseeds . . . .” (Id.) Due to these various alleged grounds, Defendant claims that the amount
in controversy is “well over $75,000.00” and that federal diversity jurisdiction is properly asserted.
(Id.)
Plaintiff’s motion argues that Defendant has failed to meet its burden in showing that
Plaintiff may recover more than the jurisdictional threshold amount.

Plaintiff avers that

“[a]ttorney fees and costs should not enter into the equation” as they are “entirely too speculative.”
(ECF No. 5 at 3 (citing Caufield v. EMC Mortg. Corp., 803 F. Supp. 2d 519, 529 (S.D. W. Va.
2011)).) Additionally, Plaintiff claims that the damages related to the cost of repairing the home
would not amount to $75,000 because “the house itself is of the ‘manufactured’ variety, and
therefore does not enjoy ceramic tile, marble, or exotic hard wood materials for its floor
coverings.” (Id. (stating further that “it is difficult to see how the general claims for annoyance,
aggravation, and inconvenience could be otherwise”).) While Plaintiff concedes that “[p]erhaps
on a good day with a favorable wind, a jury could return a verdict of $75,000 based on this
Plaintiff’s complaint,” she proffers that “it seems highly unlikely.” (Id. at 4.)
In considering whether Defendant has met the preponderance of the evidence standard, the
Court may consider “the type and extent of the plaintiff’s injuries and possible damages

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recoverable . . . .” See Scaralto v. Ferrell, 826 F. Supp. 2d 960, 964 (S.D. W. Va. 2011) (quoting
McCoy, 174 F. Supp. 2d at 489). A defendant seeking removal “must supply evidence to support
his claim regarding the amount at issue in the case,” and the Court “may look to the entire record
before it and make an independent evaluation” regarding the jurisdictional amount. McCoy, 174
F. Supp. 2d at 489 (emphasis in original) (quoting Sayre v. Potts, 32 F. Supp. 2d 881, 886–87 (S.D.
W. Va. 1999), abrogated on other grounds by Scaralto, 826 F. Supp. 2d at 960). “If the court
thinks that a reasonable plaintiff would claim more than $75,000, then the defendant has met its
burden of proof.”

Scaralto, 826 F. Supp. 2d at 968 (citation omitted).

Notwithstanding

Plaintiff’s metaphor regarding “a good day with a favorable wind,” (see ECF No. 5 at 4), “[t]he
amount in controversy is not what the plaintiff, his lawyer, or some judge thinks a jury would
award the plaintiff assuming he prevails on the merits. It is what the plaintiff claims to be entitled
to or demands.” Scaralto, 826 F. Supp. 2d at 967.
The Court finds that Defendant has met its burden of establishing that the amount sought
by Plaintiff is in excess of $75,000. Plaintiff here claims that she is entitled to compensatory,
statutory, and other damages from losses she suffered after Defendant refused to accept her claim
regarding extensive damage to her home. (See ECF No. 1-1 at 6–9.) Defendant attached to its
response to the motion a report by “Samuel A. Wood, MS, PE, a Structural Engineer . . . [who]
inspected the property on November 28, 2012.” (ECF No. 6 at 3; see ECF No. 6-1 at 1–3.) The
report made several findings, the most notable of which is that the home, which is a “premanufactured home” commonly known as a “double wide,” suffered from “incomplete marriage
wall support.” (See ECF No. 6-1 at 1, 3.) Double wide homes that are “unsupported from within
the crawl space” may suffer a “heave or bow” throughout the middle of the home, which reflects

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the damage Plaintiff claims resulted from the storm. (Id.; see also ECF No. 1-1 at 6 ¶ 3.)
Defendant asserts that structural repairs would be needed to fix the home, especially in light of the
fact that it has been sitting in this condition for over five years. (ECF No. 6 at 4.) If the alleged
structural defects bring into question the stability of the entire home—which Defendant suggests
and Plaintiff has not disputed—Plaintiff would be seeking no less than the total value covered for
the home itself under Defendant’s insurance policy, or $77,800. (See ECF No. 6-1 at 12, 14.)
This amount does not take into consideration Plaintiff’s statutory damages sought under the UPTA
nor does it include the damages Plaintiff claims under Hayseeds. These additional damages will
only act to increase a figure that already is in excess of the jurisdictional threshold.
Plaintiff does not argue that she seeks less than $75,000 in this case, and she does not
dispute the veracity of the report by Mr. Wood or coverage amount provided under the policy.
Rather, her argument centers on the idea that she believes it unlikely that a jury would award her
that amount and even more improbable that a judge would approve such an award. As noted
above, however, this is not the test for the Court. See Scaralto, 826 F. Supp. 2d at 967–68. The
Court must assess what Plaintiff claims to be entitled to, which Defendant has demonstrated by
preponderance of the evidence to be more than $75,000. Absent some limitation on Plaintiff’s
potential recovery, the amount in controversy is greater than the jurisdictional requirement.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the amount in controversy exceeds
$75,000. As such, the Court finds that it has diversity jurisdiction over this matter and DENIES
the Motion to Remand. (ECF No. 4.)
IT IS SO ORDERED.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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November 17, 2017