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Savoia v. American Family Mutual Insurance Co.

United States District Court, M.D. Louisiana

October 23, 2018

ANNA SAVOIA AMERICAN FAMILY MUTUAL INSURANCE CO., ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         REPORT AND RECOMMENDATION

         Before the court is a Motion to Remand[1] filed by plaintiff, Anna Savoia (“Plaintiff”). Defendant, State Farm Fire and Casualty Company (“State Farm”) has filed an opposition.[2]Additionally, removing defendant, American Family Mutual Insurance Company (“American Family”) previously filed a Memorandum in Support of Jurisdiction, [3] which the undersigned has also considered. For the reasons set forth herein, the undersigned RECOMMENDS[4] that the Motion to Remand[5] be DENIED. In the event this recommendation is adopted, the undersigned further RECOMMENDS that this matter be referred to the undersigned for a scheduling conference.[6]

         I. Background

         On or about May 3, 2018, Plaintiff filed a Petition for Damages (the “Petition”) in state court against two insurer defendants, American Family and State Farm, for payments allegedly due under two insurance policies providing uninsured/underinsured motorist coverage.[7] Plaintiff alleges that she sustained injuries in a May 7, 2016 automobile accident that occurred while she was a guest passenger in a vehicle operated by Stephanie Klupper (“Klupper”). Per the Petition, while stopped at a red light, a vehicle owned and operated by Veronica Pelayo (“Pelayo”) struck the vehicle in which Plaintiff was riding from behind.[8] Plaintiff alleges various acts of negligence and fault by Pelayo and contends that as a result of the accident she “suffered severe personal injuries, including but not limited to, severe physical injury, severe emotional injury, pain and suffering, past and future medical expenses, loss of enjoyment of life, loss of earnings or earnings capacity, and other damages which may be shown at the trial of this matter.”[9] Although Plaintiff alleges that her damages “far exceed the combined limits of the liability and the primary UM policy provided by American Family, ”[10] the Petition does not set forth the limits of the American Family policy.[11]

         On June 28, 2018, American Family filed a Notice of Removal pursuant to 28 U.S.C. § 1332 based upon complete diversity between the parties and the assertion that the amount in controversy exceeds $75, 000, exclusive of interest and costs.[12] In its Notice of Removal, American Family contends that the amount in controversy requirement of 28 U.S.C. § 1332 is met because Plaintiff “suffered severe and painful personal injuries, ” including injuries to her spine, and head trauma “including post concussion syndrome and visual convergence problems, ” and that Plaintiff continues to treat for her injuries.[13] Additionally, American Family explained that prior to removal, and in response to an email request, Plaintiff's counsel stated “We cannot stipulate to damages less than $75, 000.00.”[14]

         In response to an order from this Court, [15] American Family submitted a supplemental memorandum and evidence regarding the amount in controversy.[16] Therein, American Family points out that Plaintiff had already recovered the $100, 000 limit of the underlying liability policy, and that the American Family policy under which Plaintiff now seeks to recover as the “‘primary UM policy' has limits of $250, 000 per person and $500, 000 aggregate….”[17] Additionally, American Family asserts that “Ms. Savoia's medical bills to date allegedly related to the subject accident total $37, 818.92 and she is continuing treatment.”[18]

         On July 23, 2018, Plaintiff filed the instant Motion to Remand, arguing that “Defendants have not met their burden of showing that the amount in controversy exceeds the jurisdictional limit of $75, 000.00….”[19] Plaintiff confirms that she “currently has $37, 818.92 in crash-related medical bills” and states that while “she still deals with daily pain, the extent of Ms. Savoia's future medical treatment is unknown” and therefore “any estimation on the amount of damages Ms. Savoia has incurred at this time are merely speculative.”[20] Additionally, while Plaintiff confirms that she “has already recovered $100, 000.00 from the underlying liability insurer, ” she asserts that the $100, 000 payment should not be included in a calculation of the amount in controversy because “an underinsured motorist carrier and the tortfeasor's liability carrier are not solidary obligors….”[21]

         II. Law and Analysis

         A. Removal Standard

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[22] When original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.”[23] Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint.[24] In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court.[25] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[26] The removing party has the burden of proving federal diversity jurisdiction.[27] Remand is proper if at any time the court lacks subject matter jurisdiction.[28]

         B. American Family Has Met Its Burden of Establishing, by a Preponderance, that the Amount in Controversy Likely Exceeds $75, 000

         When a plaintiff has not alleged a specific amount of damages, a removing defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75, 000.[29] The removing party may make this showing either: “(1) by demonstrating that it is ‘facially apparent' that the claims are likely above $75, 000, or (2) ‘by setting forth the facts in controversy-preferably in the removal petition, but sometimes by affidavit-that support a finding of the requisite amount.'”[30] Once a removing defendant has established, by a preponderance, that the amount in controversy exceeds the federal jurisdictional amount, “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”[31]

         When a plaintiff seeks recovery for payments under an insurance policy, the amount in controversy is governed by the lesser of the value of the claim under the policy or the policy limit.[32]Although Plaintiff has not alleged a specific monetary amount in her Petition, she has alleged that her damages “far exceed the combined limits of the liability and primary UM policy provided by American Family” and that she “meets the exception to the anti-stacking statute provided by Louisiana Revised Statutes § 1295(c)….”[33] For multiple reasons, these allegations, in conjunction with the additional information provided by American Family in response to this Court's order requiring supplemental briefing and evidence regarding the amount in controversy, [34] are sufficient to meet American Family's burden of establishing that the amount in controversy likely exceeds the jurisdictional threshold.

         Both Plaintiff and American Family agree that Plaintiff was previously paid the $100, 000 limit of the underlying liability policy.[35] Following removal, American Family submitted the Declarations page of its policy evidencing “bodily injury liability” limits of $250, 000 each person and $500, 000 each occurrence as well as “underinsured motorist coverage - bodily injury only” in the amount of $500, 000 each person.[36] Accordingly, even without consideration of the $100, 000 amount previously paid by the underlying liability insurer, [37] and based on Plaintiff's allegation that her damages “far exceed the combined limits of the liability and primary UM policy provided by American Family, ”[38] Plaintiff is alleging that her damages in this matter exceed $75, 000, exclusive of interest and costs.[39]

         Moreover, Plaintiff alleges in her Petition that she “meets the exception to the anti-stacking statute…and State Farm is obligated to tender a reasonable amount to their insured in good faith.”[40]“‘Stacking of UM coverages occurs when the amount available under one policy is inadequate to satisfy the damages alleged or awarded the insured and the same insured seeks to combine or stack one coverage on top of another for the same loss….'”[41] The “anti-stacking” provision, La. R.S. § 22:1295(1)(c), prohibits “stacking of multiple UM coverages available to the same insured, except under limited circumstances.”[42] The exception to the anti-stacking rule allows an insured injured “while occupying an automobile not owned by said injured party, resident spouse, or resident relative” to recover under the UM coverage on the vehicle in which she was riding as primary coverage and also under one other UM policy available to her as excess coverage.[43] Plaintiff's The maximum amount that it is ‘legally possible' for plaintiff to recover from Allstate in UM benefits is $42, 500. So $42, 500 is the maximum amount of policy proceeds that could be placed in controversy by plaintiff's cause of action.”). allegation that she meets the exception to the anti-stacking statute, and therefore may assert a claim against State Farm (presumably as the insurer providing excess UM coverage), is additional support for a finding that Plaintiff seeks damages in excess of the limits of the American Family policy.[44]

         Based on the allegations in Plaintiff's Petition, and the additional information regarding American Family's policy limits, the undersigned finds that American Family has met its burden of establishing, by a preponderance of the evidence, that the amount in controversy in this suit likely exceeds $75, 000, exclusive of interest and costs. Plaintiff's allegation that her damages exceed the limit of the American Family policy and that she may stack an excess UM policy belie Plaintiff's ability to establish to a legal certainty that the claim is really for less than the jurisdictional amount, [45] and Plaintiff has not asserted any argument or basis to establish to a legal certainty that her claim is actually for less than $75, 000.[46]

         III. Conclusion

         For the reasons set forth herein, the undersigned RECOMMENDS that the Motion to Remand[47] be DENIED. In the event this recommendation is adopted, the undersigned further RECOMMENDS that this ...


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