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Hammond v. Stears

United States District Court, M.D. Louisiana

October 9, 2019

DANIEL HAMMOND
v.
TIMOTHY STEARS AND ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY

          NOTICE AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Daniel Hammond (“Plaintiff”) on January 8, 2018 in East Baton Rouge Parish when Plaintiff's Freightliner collided with the truck driven by Defendant Timothy Stears (“Stears”) (the “Accident”).[1] Plaintiff alleges that the Accident was caused by the fault and negligence of Stears in failing to operate his truck in a safe manner.[2] Plaintiff originally named Allstate Property and Casualty Insurance Company (“Allstate”) as Stears' automobile liability insurer.[3]

         On or about January 4, 2019, Plaintiff filed his Petition for Damages (“Petition”) against Stears and Allstate in the Nineteenth Judicial District Court for the Parish of East Baton Rouge alleging that Defendants are liable to Plaintiff based on the foregoing allegations.[4] While the matter was pending in state court, Plaintiff dismissed his claims against Stears and Allstate with prejudice, and amended his Petition to assert claims against Protective Insurance Company (“Protective”) and Progressive Security Insurance Company (“Progressive”).[5] In his First Supplemental Petition for Damages (“Amended Petition”), Plaintiff alleges that Protective “issued an uninsured/under-insured insurance policy to Trim & Trim of Louisiana, the owner of the vehicle Mr. Hammond was driving, ” and that “Progressive issued an uninsured/under-insured insurance policy to Mr. Hammond.”[6]

         On October 4, 2019, Protective removed the matter to this Court asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332.[7] However, as explained below, it is not clear from the Notice of Removal that subject matter jurisdiction exists.

         The Joinder of Non-diverse Progressive

         Proper information regarding the citizenship of all parties is necessary to establish the Court's diversity jurisdiction, as well as to make the determination required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court. The Notice of Removal alleges that Plaintiff is a citizen of Louisiana and Protective is incorporated in, and has its principal place of business in, Indiana, so these parties are diverse.[8] However, the Notice of Removal states that Progressive is “a domestic insurance company with its place of incorporation and principal place of business in the State of Louisiana.”[9] Protective asserts that “Defendants contend that Progressive Security Insurance Company was fraudulently and/or improperly joined and, therefore, it not a party to this petition for Removal.”[10] Protective contends that Progressive was improperly named and joined in the lawsuit because:

Pursuant to LA R.S. 22:1295(c)(1)(i), ‘[T]he uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary' [citations omitted]. Therefore the Protective Insurance Company uninsured/under-insured motorists coverage is primary in the instant matter, with uninsured/under-insured motorist coverage limits of $1, 000, 000….As set forth more fully below, Plaintiff's alleged injuries and damages are grossly inadequate to exhaust the $1, 000, 000 policy limits of the Protective Insurance Company uninsured/under-insured motorists policy issued to Trim & Trim of Louisiana, and, therefore, will not infringe upon the uninsured/under-insured motorists policy issued by Progressive Security Insurance Company to Plaintiff.[11]

         Thus, Protective essentially argues that the citizenship of non-diverse Progressive should be disregarded because it was improperly and/or fraudulently joined.

         Plaintiff's Amended Petition, in turn, asserts:

12.
At the time of the accident described herein, defendant Progressive issued an uninsured/under-insured insurance policy to Mr. Hammond. Said policy makes Defendant Progressive solidarily liable with Timothy Stears unto petitioner as said policy inures to the benefit of petitioner as a source of compensation for the injuries that she (sic) sustained as a result of the above described accident.[12]

         Thus, Plaintiff has asserted claims against Progressive on the basis of Progressive's policy. Considering Protective's position that complete diversity exists when the citizenship of Progressive is not considered, Plaintiff will be ordered to file either a motion to remand addressing the joinder of Progressive, or an Amended Complaint deleting all claims against Progressive if Plaintiff agrees Progressive was improperly joined.

         Deficient Allegations as to the Amount in Controversy

         With respect to the amount in controversy, it is not clear from the Notice of Removal or the Petition whether Plaintiff's claims likely exceed $75, 000, exclusive of interest and costs.[13]

         Plaintiff alleges that Stears' vehicle came into Plaintiff's lane of travel “striking the side of his vehicle.” The original Petition alleges injuries to Plaintiff as follows:

6. As a result of the above described incident, petitioner Daniel Hammond, sustained severe personal injuries, ...

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