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Thomas v. Hartford Accident & Indemnity Co.

United States District Court, W.D. Louisiana, Shreveport Division

March 14, 2018

JEREMIAH THOMAS
v.
HARTFORD ACCIDENT & INDEMNITY CO.

          TERRY A DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          Mark L. Hornsby U.S. Magistrate Judge

         Introduction

         Jeremiah Thomas (“Plaintiff”) was injured in a car accident. It appears that Plaintiff settled his claims against the other driver and her liability insurer. He then turned to his own uninsured/underinsured (“UM”) policy, issued by Hartford Accident & Indemnity Company, to seek additional damages. Plaintiff and Hartford were unable to settle the claim, and Plaintiff filed suit against Hartford in state court. Hartford removed the case based on diversity jurisdiction. Before the court is Plaintiff's Motion to Remand (Doc. 14) on the grounds that the amount in controversy does not exceed $75, 000. For the reasons that follow, it is recommended that the motion be granted.

         Removing Party's Burden

         Plaintiff's petition, consistent with Louisiana law, sought an award of reasonable damages and did not pray for any particular amount. A notice of removal may assert the amount in controversy if the plaintiff's initial pleading seeks a money judgment but state practice does not permit demand for a specific sum. 28 U.S.C. § 1446(c)(2)(A)(ii). Removal of such an action is proper on the basis of an amount in controversy asserted in the notice of removal “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds” $75, 000 exclusive of interest and costs. 28 U.S.C. §§ 1446(c)(2)(B) and 1332(a). The burden is on the removing party to show that removal is proper, and any doubts should be resolved against federal jurisdiction. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3rd 535, 537 (5th Cir. 2014).

         Defendant asserted in its notice of removal that the amount in controversy exceeds $75, 000. Defendant may satisfy its burden on that issue by: (1) demonstrating that it is “facially apparent” that the claims are likely above $75, 000, or (2) setting forth the facts in controversy - in the notice of removal or an affidavit-that support a finding of the requisite amount. Luckett v. Delta Airlines, 171 F.3d 295, 298. Accordingly, the court will review the petition and relevant facts submitted by the parties.

         Relevant Allegations and Facts

         Plaintiff alleges in his petition that he was driving a 2012 Chevy headed south on the Clyde Fant Parkway in Shreveport, near the intersection with the Shreveport-Barksdale Highway, when another driver failed to stop or yield at the intersection “before violently striking the passenger's side” of his vehicle. The other driver was insured by Safeco, and Plaintiff had UM coverage through his Hartford policy. Neither the petition nor other materials explain, but it is implied that Plaintiff settled his demands against the other driver and Safeco. The only named defendant in his petition is Hartford.

         The Hartford UM policy has a policy limit of $50, 000 for bodily injury to one person. Doc. 19-3. Plaintiff's counsel wrote a letter to a Hartford claims representative in March 2017 and stated that the case (presumably the underlying claim against the other driver and her insurer) was nearing trial in state court and counsel was “attempting to settle this matter at this time so as to avoid the possibility of a bad faith claim against your client … .” Counsel wrote that Plaintiff had been employed at the time of the accident as an owner/operator at a fence company and had past lost wages of approximately $15, 000. The 80-year-old Plaintiff had required extensive physical therapy that had proved unsuccessful in providing permanent relief. Counsel outlined Plaintiff's medical care, which included treatment for injuries to neck, shoulders, back, knees, and head. An MRI indicated multiple disc injuries, and a pain management specialist was of the opinion that Plaintiff needed surgery, but he was going to try steroid injections first. Counsel stated that Plaintiff had been treated by a number of physicians, he was still symptomatic one year after the accident, and he would continue to need care for the rest of his life. Medical records were said to show bills totaling approximately $12, 000.

         Counsel concluded by noting that Hartford had failed, despite notice of the UM claim, to make a reasonable tender or pay the medical bills in a timely fashion “and accordingly we feel that we have a significant bad faith claim in the event that this matter goes to judgment.” He suggested that a settlement of “$100, 000, inclusive of both his UM claim and the bad faith claim” was reasonable.

         Counsel wrote Hartford again in May 2017 and said that Plaintiff was willing to settle the claim for “policy limits” but had only received $10, 259 from the UM carrier thus far. He said he would proceed to file suit, which “does make settling that claim within policy limits, a little bit more difficult.” Counsel wrote again on July 6, 2017 and said he was authorized to accept “the sum of $75, 000 as full and final settlement” in the matter. He sent a virtually identical $75, 000 offer on July 20, 2017, but with the heading “FINAL DEMAND.” Plaintiff filed suit in state court in September 2017.

         Plaintiff's petition against Hartford did not seek a specific amount of damages. It did allege that Plaintiff was entitled to recover damages in several categories, such as pain and suffering, mental anguish, loss of wages, loss of earning capacity, and future medical expenses. The prayer asked for judgment in the amount allowable under law “including bad faith damages, ” and it requested an award of “punitive damages as allowed under the statute.” Hartford promptly removed the civil action.

         Plaintiff filed his motion to remand and attached to it an Affidavit signed by Plaintiff and an Irrevocable Stipulation to Damages signed by counsel. Plaintiff stated in the affidavit that he agrees and stipulates that the total damages he seeks, inclusive of attorney fees and penalties, is no greater than $75, 000. He stipulated and affirmed that he will neither accept nor enforce any judgment to the extent it results in him being awarded an amount in excess of $75, 000, exclusive of interest and costs, and he waives any such excess amount. The stipulation document signed by counsel included similar representations, as well as a ...


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