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Cowart v. Geico Insurance Co.

United States District Court, S.D. Alabama, Southern Division

February 1, 2018

MISTY COWART, Plaintiff,



         This matter is before the Court on the plaintiff's motion to remand. (Doc. 5). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 5-1, 5-2, 7, 8), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted.


         This case began as a suit against Zachariah Cowart ("Zachariah") for damages the plaintiff suffered when Zachariah ran over her while driving her car, resulting in compound fractures of her left leg and ankle. The complaint asserted claims of negligence and wantonness and sought damages for medical expenses, lost wages, mental anguish (all past and future) and permanent physical disfigurement and impairment. (Doc. 1-2).

         In October 2017, the plaintiff filed an amended complaint, eliminating Zachariah as a defendant and adding Geico. According to that pleading, the plaintiff had recently settled with Zachariah, his liability insurance carrier paying policy limits. The amended complaint seeks underinsured motorist benefits from Geico, the plaintiff's insurer. The amended complaint lists the plaintiff's damages similarly to the original complaint. No specific amount of damages is demanded. (Doc. 1-3).

         Geico timely removed on the basis of diversity of citizenship. The parties agree that complete diversity exists, [2] but the plaintiff denies that Geico has carried its burden of showing that the amount in controversy at the time of removal exceeded $75, 000, exclusive of interest and costs.


         “A court's analysis of the amount-in-controversy requirement focuses on how much is in controversy at the time of removal, not later.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010). “[W]here jurisdiction is based on a claim for indeterminate damages, ... the party seeking to invoke federal jurisdiction bears the burden of proving by a preponderance of the evidence that the claim on which it is basing jurisdiction meets the jurisdictional minimum.” Federated Mutual Insurance Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003). “[A] removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the … jurisdictional requirement.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal quotes omitted); accord 28 U.S.C. § 1446(c)(2)(B). Geico acknowledges its burden. (Doc. 1 at 3).

         "When the complaint does not claim a specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional amount. If the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed." Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).

         Geico relies on the following to meet its burden: (1) its policy limits exceed $75, 000[3]; (2) the plaintiff demanded payment of benefits under the policy; (3) the plaintiff characterized her injuries as life-threatening; (4) the amended complaint contains a laundry list of damages; and (5) medical records and deposition testimony reflect the extent of the plaintiff's injuries and medical treatment. (Doc. 1 at 3-5; Doc. 7 at 1-3).

         That policy limits exceed $75, 000 establishes that the amount in controversy could exceed that amount, but it says nothing about whether it does exceed that amount, for the simple reason that an insured plaintiff's damages in any given case may fall far short of her policy limits.

         Had the plaintiff demanded policy limits, that would say a great deal about the amount in controversy, but she did not. Geico relies on the amended complaint's allegation that the plaintiff "has made demand upon GEICO for payment of benefits pursuant to her contract of automobile insurance." (Doc. 1-3 at 2). This language indicates a demand simply for the payment of such benefits as would make her whole, which begs the question of what that amount would be.[4]

         Before addressing the remainder of Geico's arguments, it is necessary to recount the history of this action. As noted, the plaintiff's injuries were caused by Zachariah, and the plaintiff settled with him before suing Geico. That settlement involved payment of policy limits by Zachariah's insurer. Those limits, which the plaintiff received, were $100, 000. (Doc. 5-1 at 2). The parties disagree regarding the impact of these facts on the amount in controversy. The plaintiff believes this payment reduced the amount in controversy by $100, 000, pre-removal, from whatever it would have been but for the payment. (Doc. 5-1 at 2). Geico believes the payment is irrelevant to the amount in controversy at the moment of removal and that the payment can be considered only at the conclusion of the litigation, when it can demand a setoff of $100, 000 against any verdict rendered against it. (Doc. 7 at 2 n.1).

         The only relevant case cited by either side is Reed v. State Farm Mutual Automobile Insurance Co., 2007 WL 2230586 (S.D. Ala. 2007). That case, though presented by Geico, supports the plaintiff's position. In Reed, the plaintiff sued the defendant for uninsured/underinsured motorist benefits. Only $50, 000 in such benefits was available, but the defendant argued that $155, 000 was in controversy because the plaintiff had received $105, 000 in other insurance and so would have to prove $155, 000 in damages in order to recover the $50, 000. The Court ruled that, for purposes of determining the amount in controversy, what mattered was the amount of damages the plaintiff could recover, not the amount of damages he would have to prove in order to recover the lower amount. Id. at *2. "The portion that [the ...

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