25 Fla. L. Weekly Fed. D193a
Insurance — Underinsured/uninsured motorist — Insureds’ action against insurer for injuries sustained in automobile accident — Federal jurisdiction — Diversity — Amount in controversy — Although face of complaint, which seeks coverage for breach of insurance contract and alleges only that amount in controversy exceeds $15,000, is insufficient to satisfy by preponderance of evidence the amount-in-controversy requirement for federal diversity jurisdiction, other factors lead to conclusion that more likely than not plaintiffs’ claims exceed the minimum jurisdictional requirement — Factors considered include fact that plaintiffs demanded UM policy limits in a total amount of $500,000; information in plaintiffs’ Civil Remedy Notice of Insurer Violation, which included fact that one insured had died and second insured had sustained severe injuries; fact that insured has not been compensated for continued pain and suffering, disability, disfigurement, mental anguish, and loss of capacity to enjoy life due to the crash or for the loss of her husband; and fact that deceased insured’s estate has not been compensated for his death — Moreover, plaintiffs seek attorney’s fees and costs from defendant — Plaintiffs’ motion to remand to state court is denied
EVELYN L. BELE and WILLIAM BELE, Plaintiffs, v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Orlando Division. Case No. 6:15-cv-526-Orl-40GJK. May 15, 2015. Paul G. Byron, Judge.
This cause comes before the Court on the following:
1. Plaintiffs’ Motion to Remand (Doc. 12), filed April 15, 2015; and
2. Defendant’s Response in Opposition to Plaintiff’s Motion to Remand (Doc. 13), filed April 22, 2015.
Upon consideration, the motion is due to be denied.
This case arises out a motor vehicle accident that occurred in March 2014 in Lake County, Florida. (Doc. 2, ¶ 12). At that time, two non-party drivers collided, disabling one of the driver’s vehicles. (Id. ¶ 13). Around the same time, Plaintiff, Evelyn Bele, and her husband, Anthony Bele, were traveling in their vehicle which was being driven by their neighbor. (Id. ¶ 14). The Beles’ vehicle struck the disabled vehicle, injuring the Beles. (Id. ¶¶ 15-16).
At the time of the collision, the Beles were insured by Defendant, 21st Century Centennial Insurance Company, under an automobile insurance policy that provided non-stacking underinsured/uninsured motorist (“UM”) coverage with limits of $250,000 per person and $500,000 per accident. (Id. ¶ 17; Doc. 1-1, Ex. B). The non-party at-fault driver had an insurance policy with limits of $100,000 per person and $300,000 per accident. (Doc. 1-1, Ex. C). The insurance company for the at-fault driver tendered its policy limits of $100,000 to the Beles for a combined tender of $200,000. (Id.). Despite this tender, the at-fault driver was underinsured for this claim. (Id.). Defendant has denied UM coverage to Evelyn and Anthony Bele. (Doc. 2, ¶ 21).
On March 2, 2015, Plaintiffs, Evelyn Bele and William Bele, as personal representative for the estate of Anthony Bele (collectively, “Plaintiffs”), initiated this action by filing a complaint against Defendant in the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida. (Doc. 12, p. 1). Plaintiffs’ Complaint alleges three claims for relief. (Doc. 2). Count I alleges a claim for breach of contract which seeks UM benefits. Count II alleges a claim for bad faith. Count III seeks a declaratory judgment to determine liability and damages. On March 13, 2015, Plaintiffs perfected service of process on Defendant (Doc. 1-1, p. 1), and on March 27, 2015, Defendant timely removed this case to federal court. (Doc. 1). Defendant bases its removal of this case on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiffs have moved to remand, disputing Defendant’s allegations that the amount-in-controversy exceeds $75,000. (Doc. 12). Plaintiff does not dispute the citizenship of the parties. (Id.).
“A district court has original jurisdiction over all cases between citizens of different states when the amount in controversy exceeds $75,000.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999) (emphasis in original omitted); 28 U.S.C. § 1332(a). “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.” Dart Cherokee Basin Operating Co., LLC. v. Owens, 135 S. Ct. 547, 553 (2014). “If the plaintiff contests the defendant’s allegation, § 1446(c)(2)(B) instructs: ‘[R]emoval . . . is proper on the basis of an amount in controversy asserted’ by the defendant ‘if the district court finds, by a preponderance of the evidence, that the amount in controversy exceeds’ the jurisdictional threshold.” Id. at 553-54 (footnotes omitted). The Court is mindful that “removal statutes are construed narrowly” and jurisdictional uncertainties “are resolved in favor of remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
Plaintiffs seek to remand this case to state court arguing that Defendants have failed to prove that the Court has jurisdiction over this case.1 (Doc. 12). Specifically, Plaintiffs contend that Defendant, the party who removed this case, cannot establish by a preponderance of the evidence that the amount-in-controversy exceeds $75,000. (Id. at p. 2). The Eleventh Circuit set forth the approach district courts should take in determining whether the amount-in-controversy satisfies the jurisdictional requirement in Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001), which states:
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 requirement. 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.
In the first paragraph of their Complaint, Plaintiffs allege that the amount-in-controversy exceeds $15,000; the Complaint does not otherwise provide a specific amount of damages. (Doc. 2, ¶ 1). Next, the Court examines the particular causes of action chosen by Plaintiffs. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1065 (11th Cir. 2010). Here, Plaintiffs sue Defendant for breach of contract. (Doc. 2). Specifically, Plaintiffs demand damages for Defendants’ failure to pay Plaintiffs’ UM benefits and attorney’s fees. (Id.). While Plaintiffs may be entitled to up to $500,000 under its UM policy with Defendant, the face of the Complaint, standing alone, is insufficient to satisfy by a preponderance of the evidence the amount-in-controversy requirement.2 The jurisdictional amount not being facially apparent from the Complaint, the Court turns to Defendant’s Notice of Removal.
In its removal notice, Defendant principally relies on the fact that each of the Plaintiffs demanded the UM policy limits of $250,000, for a total demand of $500,000, to establish the amount-in-controversy requirement. (Doc. 1, ¶ 2). However, courts in the Middle District of Florida have repeatedly held that demand letters are not reliable indicators of the actual value of the claim and that a defendant cannot satisfy its burden solely with a demand for the insurance policy limits that exceeds the amount-in-controversy requirement. Houston v. Garrison Prop. & Cas. Ins. Co., No. 8:14-cv-01944-EAK-MAP, slip op. at 5-6 (M.D. Fla. Nov. 17, 2014); Ennis v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-637-J-37JBT, slip op at. pp. 4-5 (M.D. Fla. Aug. 10, 2011). The Court views Plaintiffs’ demand for a total of $500,000 to be just one factor of many to consider in determining whether Defendant has carried its burden of establishing the amount-in-controversy.
The Notice of Removal also attaches and references Plaintiffs’ Civil Remedy Notice of Insurer Violation (“CRN”). CRNs can “serve as a description of [a plaintiff’s] injuries. The notices [can] provide a more detailed description of [the] injuries than the demand letter.” Ennis, No. 3:11-cv-637-J-37JBT, slip op. at pp. 6-7. The CRN asserts that Anthony Bele unfortunately died as a result of his injuries sustained in the car crash at issue. (Doc. 1 ¶ 4; Doc. 1-1, Ex. C). His funeral expenses totaled $9,257.60. (Doc. 13-2). The CRN states that Evelyn Bele was hospitalized for a significant period of time after the crash, followed by an extended stay in a nursing home, and, after discharge, required home care. (Doc. 1 ¶ 4; Doc. 1-1, Ex. C). As evidenced in the CRN, Anthony Bele’s medical expenses totaled $80,746.65 and Evelyn Bele’s medical expenses totaled $82,761.27. (Doc. 1-1, Ex. C). The CRN goes on to describe the injuries sustained by Evelyn Bele in the crash. Specifically, she sustained a pelvic fracture and a fractured cervical vertebra. (Doc. 1 ¶ 4; Doc. 1-1, Ex. C). The fractured cervical vertabra required Mrs. Bele to be placed in a neck collar for four months and has caused neck pain and loss of range of motion. (Id.). Mrs. Bele also suffers from chronic back pain as a result of the crash. (Id.). Mrs. Bele was unable to ambulate without the assistance of a walker shortly after the crash, required physical therapy, needed a Foley catheter to assist with urination, and developed additional medical complications which have required repeated visits to the emergency room. (Id.). The CRN also states that the loss of Mrs. Bele’s husband has been a heavy burden on her as he provided the family with retirement income and was active in household chores. (Id.). As a result of her husband’s death, Mrs. Bele no longer receives monthly social security payments of $1,135 and her husband’s pension payment was reduced from $991.96 per month to $100.00 per month. (Doc. 13-2).
While each of Evelyn and Anthony Bele’s medical bills establish the jurisdictional amount, Plaintiffs point out in their motion that both Evelyn and Anthony Bele have each been paid $100,000 through the at-fault driver’s insurance. (Doc. 12, p. 5). This reduces the value of Plaintiffs’ claim for UM benefits. Thus, the Court must decide whether the totally of Plaintiffs’ claims are worth more than $75,000 to the extent Plaintiffs were already compensated $200,000.
The pain and suffering and future medical expenses demanded in the Complaint are not assigned a monetary value in the CRN or the demand letters. As to the actual numbers the Court has before it, the $200,000 paid by the at-fault driver’s insurance company has essentially paid for Plaintiffs’ medical bills, Anthony Bele’s funeral expenses, and the loss, to date, of Anthony Bele’s social security benefits and reduced pension payment.3 District courts may draw on their own “judicial experience and common sense” to determine whether a case meets federal jurisdictional requirements. Roe, 613 F.3d at 1062. However, the $200,000 already paid to Plaintiffs has not yet compensated Evelyn Bele for her continued pain and suffering, disability, disfigurement, mental anguish, and loss of capacity to enjoy life due to the crash, nor has it compensated her for the loss of her husband. Additionally, Anthony Bele’s estate has not been compensated for his death.
Further, Plaintiffs seek attorney’s fees and costs from Defendant pursuant to Florida Statute § 627.428. When a statute authorizes, and a plaintiff requests, attorney’s fees, a reasonable amount of those fees should be included in the amount-in-controversy. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000). While Defendant does not provide any evidence of how much Plaintiffs’ attorney’s fees in this matter are expected to be, Defendant asks the Court to use its judicial experience and common sense to estimate the amount that Plaintiffs could recover. Defendant also points to several Florida state trial court cases involving UM coverage that awarded plaintiffs attorney’s fees in excess of $100,000. The claim for attorney’s fees, in combination with the unfortunate death of Anthony Bele, the serious injuries sustained by Evelyn Bele, and the damages demanded in the Complaint, lead the Court to conclude that it is more likely than not that Plaintiffs’ claims exceed the minimum jurisdictional requirement.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion to Remand (Doc. 12) is DENIED.
1The parties agree that the only source of federal court jurisdiction available in this case is diversity jurisdiction.
2The Court questions to what extent it should consider the value of Plaintiffs’ bad faith claim in Count II of Plaintiffs’ Complaint, which Plaintiffs concede is not yet ripe (Doc. 2 ¶ 27) and which Defendant has moved to dismiss (Doc. 7).
3Of course, the value of the loss of Anthony Bele’s social security benefits and reduced pension payment continue to accrue.
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