United States District Court, E.D. Louisiana
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WESTERN WORLD INS. CO.
NOAH N. FLOM & NNF PROPERTIES, LLC
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that defendants'
12(b)(1) Motion to Dismiss or Alternatively Motion to
Stay, Rec. Doc. 4, is DENIED.
Western World Insurance Company ("WW"), invoking
the court's diversity jurisdiction, has filed a complaint
for declaratory relief, seeking a declaratory judgment that
it owes no defense and indemnity to its insured, Noah N. Flom
and NNF Properties, (hereinafter, collectively
"Flom"), for a mold claim brought in state court by
a Flom tenant. The tenant, Jessica Wilkes, alleges damages
from mold exposure in a Flom property ("state court
suit").WW contends that the claims in the state
court suit are excluded by a mold exclusion in the subject
policy. Notably, WW is not a party in the underlying state
court damage petition.
instant motion, Flom has moved to dismiss the declaratory
judgment action, arguing (1) that this court lacks
jurisdiction, because the allegations of the underlying
petition do not support a finding that the amount in
controversy is facially apparent; and (2) that this court
should abstain from ruling on the case and stay it pending
resolution of the state court action. WW opposes the motion.
reasons which follow, the motion is denied.
12(b)(1) Motion to Dismiss/Amount in
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.”
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). Pursuant to 28 U.S.C. § 1332, both complete
diversity of citizenship and an amount in controversy of at
least $75, 000.00 is required to establish jurisdiction over
the subject matter. Stiftung v. Plains Mktg., L.P.,
603 F.3d 295, 297 (5th Cir. 2010).
action for declaratory or injunctive relief, the amount in
controversy is "the value of the right to be protected
or the extent of the injury to be prevented.” St.
Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250,
1252-53 (5th Cir.1998). The "value of the right to be
protected is plaintiff's potential liability under that
policy.” Id. at 1253 (internal quotations
omitted). Thus, to determine the amount in controversy in
this case, the court must consider whether WW's potential
liability exceeds $75, 000, which is determined with
reference to the state court petition against Flom. See
Etheridge v. Piper Aircraft Corp., 559 F.2d 1027, 1028
(5th Cir. 1977). If it appears that the value of a potential
judgment against Flom, plus the amount WW would spend
providing a defense to Defendant in state court is greater
than $75, 000, then the amount in controversy is met.
burden can be satisfied either by showing that it is
“facially apparent” that the plaintiff's
claims exceed the jurisdictional amount, or by setting forth
the facts in dispute that support a finding that the
jurisdictional amount is satisfied. Allen v. R & H
Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995). If
the “facially apparent” test is not met, the
court may consider summary judgment type evidence relevant to
the amount in controversy. Id. at 1336.
instant case, WW alleged in its complaint for declaratory
judgment that it is facially apparent from the petition that
its potential liability exceeds $75, 000. Flom has countered
arguing that the amount in controversy is not facially
apparent, and thus WW must come forward with summary
judgment-type evidence to establish it, which it has failed
review of the state court petition reveals that plaintiff
Wilkes alleges she suffered damages as a result of mold and
fungal exposure in a property owned by Flom. Specifically,
Wilkes alleges that she began to experience respiratory
problems and irritation on both arms in the form of rashes
and lesions after moving into the leased property. Over the
course of several months, she went to several doctors to
evaluate the lesions and rashes. Due to her declining health,
she missed many days of work and eventually was unable to
work. She experienced asthma attacks, constantly wheezed, and
developed additional lesions on her arm. She continued to
seek medical treatment, biopsies, lung scans, and different
tests from multiple practitioners when her condition did not
improve. A professional was hired to conduct a mold test of
the property, which revealed a significant amount of mold
spores her the ...