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Thompson v. Shelter Mutual Insurance Co.

United States District Court, W.D. Louisiana, Lake Charles Division

July 26, 2019

BONNIE THOMPSON
v.
SHELTER MUTUAL INSURANCE CO.

          JAMES D. CAIN, JR. JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Remand filed by plaintiff Bonnie Thompson. Doc. 4. Defendant, Shelter Insurance Company ("Shelter"), opposes the motion. Doc. 6. The matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         For the reasons stated IT IS RECOMMENDED that the motion be DENIED.

         I.

         Background

         Plaintiff alleges that on November 23, 2016, she was involved in an automobile accident when her vehicle was struck from behind by another vehicle driven by Roger E. Fields. See Doc. 1, att. 5. Plaintiff contends that she was operating her vehicle with the permission and consent of the owner, Cherokee Marine, LLC, who maintained uninsured/underinsured motorist insurance with defendant Shelter. Id. at 2. Plaintiff alleges that the accident caused "injuries to her body as a whole, including, but not limited to her neck and back." Id. Plaintiff further alleges that the amount she recovered from Fields and his insurer was insufficient to cover her damages and she is therefore entitled to proceed against Shelter. Id.

         Plaintiff filed suit against Shelter in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana on September 21, 2018. Id. at 1-4. In her petition she alleges that she provided "sufficient proof of loss" to Shelter yet Shelter arbitrarily and capriciously refused to make a reasonable tender. Id. at 2-3. She asks for recovery of penalties and attorney fees under Louisiana Revised Statutes 22:1892 and 22:1973. Id. at 3. In her prayer for relief plaintiff asks for judgment against Shelter for a "reasonable amount of general damages, special damages, lost wages, loss of earning capacity, past, present and future medical expenses and pain and suffering." Id.

         On December 18, 2018, Shelter filed an answer and an exception of vagueness and ambiguity on the basis that the petition failed to comply with Louisiana Code of Civil Procedure article 893 which requires that a party plead whether the claims are sufficient to allow a trial by jury and/or establish the lack of jurisdiction of federal courts. Doc. 1, att. 5, pp. 9-13. In an opposition to the exception filed on January 23, 2019 plaintiff argued that Shelter had notice that her claim was valued at "at least $250, 000" from the petition and from a February 5, 2018 pre-lawsuit proof of loss demand requesting that the $250, 000 policy limits be tendered. Id. at pp. 23-24. The February 2018 demand was attached as an exhibit to the opposition. Id. at pp. 31-33.

         Shelter removed the case to this court on February 4, 2019 based on diversity jurisdiction, 28 U.S.C. §1332. Shelter argues that plaintiff's opposition to the exception of vagueness provided the first notice that the amount in controversy exceeded $75, 000. Shelter maintains that the petition was "facially unclear" as to whether or not plaintiff's damages exceeded $75, 000 and the February 2018 demand letter was sent before suit was filed. Thus Shelter contends that the opposition to the exception was an "amended pleading, motion, order, or other paper" and removal within 30 days of receipt of this document was proper and timely. See generally Doc. 1. Conversely plaintiff argues that removal is untimely because the demand letter and petition gave Shelter notice of the amount in controversy. Doc. 4, att. 5.

         II.

         Law and Analysis

         Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

         Louisiana law forbids plaintiffs in state courts from pleading a specific monetary value of damages. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000). Therefore, when a case originally filed in a Louisiana state court is removed to federal court on the basis of diversity, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000.00. Id. (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)). A defendant may meet this burden by either (1) showing that it is facially apparent from the allegations in the petition that the amount in controversy exceeds $75, 000, or, if it cannot ...


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