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Wright v. National Interstate Insurance Co.

United States District Court, E.D. Louisiana

January 24, 2017

TONJA R. WRIGHT
v.
NATIONAL INTERSTATE INSURANCE COMPANY ET AL

         SECTION "L"

          ORDER & REASONS

         Before the Court is Plaintiff's Motion to Remand. R. Doc. 8. Having reviewed the parties' briefs and the applicable law, the Court now issues this Order & Reasons.

         I. BACKGROUND

         This case arises out of an automobile accident. On September 9, 2015, Plaintiff Tonja Wright (“Wright” or “Plaintiff”) was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she was struck by a 2015 Kenilworth tractor and trailer owned by Defendant Mabe Trucking Company, Inc. (“Mabe”), and operated by Defendant Terry Tearle Poole (“Poole”). R. Doc. 1-1 at 2. Wright also brings this case on behalf of her minor son Noah Jackson (“Jackson”), who was travelling with her in the car at the time of the alleged accident. In her motion, Plaintiff provides a list of communications regarding her injuries between herself and Mabe's and Poole's insurer, Defendant National Insurance Company, from November 13, 2015, to August 8, 2016. R. Doc. 8-1 at 2-3.

         Plaintiff filed suit in state court on August 23, 2016, seeking damages for past and future mental and physical pain and suffering, property damage, loss of use of vehicle, depreciation, rental expenses, medical expenses, loss of past earnings, loss of future earning capacity, disability, scarring and disfigurement, loss of consortium, and penalties and attorneys' fees. R. Doc. 1-1 at 1, 4. While La. Code Civ. Proc. Art. 893(A)(1) prohibits plaintiffs from alleging a specific amount of monetary damages, Plaintiff could have stated in her initial complaint that the amount in controversy satisfied, or failed to satisfy, federal jurisdiction requirements. In her pleading, Plaintiff referred to her injuries as “severe and disabling, ” without elaborating on the nature of the injuries. Id. at 3. On November 1, 2016, Defendants received medical records in response to a subpoena that indicated Plaintiff had undergone cervical fusion surgery. R. Doc. 1 at 4. Defendants filed their notice of removal from state court on November 9, 2016, maintaining that Plaintiff's damages could reasonably exceed $75, 000. Id. at 4, 6.

         II. PRESENT MOTION

         Plaintiff Wright filed the present Motion to Remand. R. Doc. 8. Wright maintains that Defendants' removal was untimely, and asks this Court to remand the present action to state court. Id. at 1. Wright does not dispute that the parties are diverse and the amount in controversy exceeds $75, 000, but contests the timeliness of the Notice of Removal. R. Doc. 8-1 at 4.

         A. Plaintiff's Motion to Remand

         Wright provided correspondence between the parties prior to the commencement of the case detailing her injury and medical care. R. Doc. 8-1 at 2-3; R. Docs. 8-2; 8-3; 8-4; 8-5. Based on this correspondence, she claims that Defendants were aware of her cervical fusion surgery as of August 8, 2016, and should have been aware that damages in a cervical fusion case would exceed $75, 000. Id. at 5. Plaintiff cites Fifth Circuit precedent holding that settlement letters are considered “other paper” for the purposes of the commencement of time for removal, thus rendering Defendants' Notice of Removal untimely. Id. at 5.

         B. Defendants' Opposition

         Defendants oppose the motion to remand and contend that the provisions of 28 U.S.C. § 1332 and 1441 are satisfied. R. Doc. 9 at 2.

         Relying on 28 U.S.C. 1446(b)(3), Defendants argue that because Plaintiff's state court petition did not affirmatively reveal on its face that the damages sought were in excess of $75, 000, it was not removable at that time. Id. at 3 (citing Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)). Accordingly, Defendants maintain this Court must evaluate whether it became removable at a later time. Id. Relying on precedent from this Court, Defendants argue that none of Plaintiff's communications regarding her injuries prior to filing the state court action were legally sufficient to start the clock. R. Doc. 9 at 3-4.

         Defendants maintain that the Notice of Removal was filed within thirty days of their receipt of “other paper” and thus timely under 28 U.S.C. § 1446(b)(3). R. Doc. 9 at 5. Defendants agree with Plaintiffs that a settlement demand may be considered “other paper, ” but note that they never received a settlement demand, and that settlement demands must be received after the initial demand to constitute “other paper.” R. Doc. 9 at 6. Defendants rely on Plaintiffs' medical records obtained on November 1, 2016, as the first receipt of “other paper” indicating that damages would be greater than $75, 000. R. Doc. 9 at 6. Using this date, Defendants contend that their November 9, 2016, Notice of Removal was within the thirty-day removal deadline. R. Doc. 9 at 6.

         III. ...


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