182 F.Supp. 340 (S.D.Ohio 1960), Civ. 2372, Leonards Co. v. Ohio Ins. Co.

Docket Nº:Civ. 2372
Citation:182 F.Supp. 340
Party Name:Leonards Co. v. Ohio Ins. Co.
Court:United States District Courts, 6th Circuit, Southern District of Ohio

Page 340

182 F.Supp. 340 (S.D.Ohio 1960)

LEONARDS COMPANY, doing business as Ray's, Plaintiff,


OHIO INSURANCE COMPANY, an Ohio Corporation, et al., Defendants.

Civ. No. 2372.

United States District Court, S.D. Ohio, Western Division.


Harry S. Winer, of Shaman, Winer, Shulman & Ziegler, Hugh H. Altick, of Altick & McDaniel, Dayton, Ohio, for plaintiff.

Clausen, Hirsh, Miller & Gorman, Chicago, Ill., Rowan Greer, of Landis, Ferguson,

Page 341

Bieser & Greer, Dayton, Ohio, for defendants.

WEINMAN, District Judge.

This matter is before the Court on plaintiff's motion to remand. Plaintiff, the Leonard's Company, sued thirteen insurance companies in the Common Pleas Court of Montgomery County on contracts of business interruption insurance. Eleven of these insurance companies, all of which are foreign corporations, filed a petition for removal to this Court under 28 U.S.C. § 1441(c). 1

The remaining two defendants, both of which are domestic corporations, did not join in the petition for removal. Plaintiff now seeks to have the case remanded to state court.

As a general rule, all defendants must join in a petition for removal and a case is removable 'only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.' 28 U.S.C. § 1441(b). In the instant action, two of the defendant corporations are incorporated in Ohio and the requisite diversity is therefore lacking. An exception to the general rule requiring complete diversity is 28 U.S.C. § 1441(c). Therefore, the controlling question in this matter is whether each of the claims against the eleven insurance companies which seek to remove constitutes 'a separate and independent claim or cause of action' under § 1441(c).

The additional facts of this case which are necessary for the disposition of the motion are as follows: each of the thirteen insurance companies issued a separate policy of business interruption insurance to plaintiff; each policy is identical in terms and each provides for the pro-rata liability of each issuing company, i.e., each defendant is liable for a percentage of the total loss.

The only United States Supreme Court case which has construed the 'separate and independent claim or cause of action' test of removability under 28 U.S.C. § 1441(c) is American Fire & Casualty Co. v. Finn, 2 wherein the Court compared this statute to 28 U.S.C. § 71, 3 the statute which had, before its repeal, controlled questions such as the one in the instant case. In...

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