Adkins v. Gibson
Decision Date | 24 November 1995 |
Docket Number | Civ. A. No. 2:95-0742. |
Citation | 906 F. Supp. 345 |
Court | U.S. District Court — Southern District of West Virginia |
Parties | Jamie ADKINS, Plaintiff, v. Kathy Regina GIBSON, et al., Defendants. |
Steven M. Thorne, Cook & Cook, Madison, WV, for plaintiff.
S. Douglas Adkins, Mundy & Adkins, Huntington, WV, for defendants.
Pending is the Plaintiff's Motion to Remand. The parties have submitted memoranda in support of their respective positions and the matter is mature for the Court's consideration.
This action was initiated in the Circuit Court of Logan County, West Virginia on July 31, 1995. On August 25, 1995 Defendant Allstate Insurance Company removed the case to this Court, alleging the citizenship of the parties is diverse and the amount in controversy exceeds fifty thousand dollars ($50,000.00) pursuant to 28 U.S.C. § 1332(a).1 On September 20, 1995 Plaintiff moved to remand arguing the amount in controversy is less than the fifty thousand dollar ($50,000.00) threshold necessary to support federal jurisdiction. Resolution of this matter is complicated by the fact that the ad damnum clause in the Complaint does not seek judgment in a specific dollar amount.
Plaintiff's claims arise from an automobile accident in which Plaintiff alleges injuries. Defendant Gibson allegedly lost control of her vehicle and entered an auto repair lot. Her automobile collided with a second automobile, which struck a van on which Plaintiff was working. Plaintiff alleges he suffered serious and permanent personal injuries, both physically and psychologically, as a proximate result of the collision. (Complaint ¶ 13-15).
Plaintiff settled his personal injury claim with Defendant Gibson by receiving payment of five thousand dollars ($5,000.00) from her liability insurance carrier, Colonial Insurance Company of California. Plaintiff now pursues an underinsured motorist claim against Defendant Allstate, the carrier for his father, Thomas E. Adkins. Allstate disputes Plaintiff is entitled to coverage as an additional insured under the terms and conditions of the policy. Plaintiff seeks, inter alia, compensatory damages for past and future medical expenses, lost wages, and lost earning capacity.2 (Complaint ¶ 13-15). Because the terms of the Allstate policy specifically excluded coverage for punitive damages, Plaintiff's claim for punitive damages was eliminated by this Court's Memorandum Opinion and Order entered November 8, 1995.
Removal statutes must be construed strictly against removal. Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir.1994); accord Murray v. State Farm Fire & Cas. Co., 870 F.Supp. 123, 124 (S.D.W.Va.1994) (Haden, C.J.). The burden of establishing the propriety of removal falls upon the removing party. Mulcahey, 29 F.3d at 151. If federal jurisdiction is doubtful, a remand is necessary. Id.; see also 28 U.S.C. § 1447(c) ().
Generally, in determining whether the requisite jurisdictional amount is in controversy, the St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938); Wiggins v. North American Equitable Life Assur. Co., 644 F.2d 1014 (4th Cir.1981); accord Zimmer-Hatfield, Inc. v. Wolf, 843 F.Supp. 1089, 1090 (S.D.W.Va.1994) (Haden, C.J.); Steele v. Morris, 608 F.Supp. 274, 276 (S.D.W.Va. 1985) (Haden, C.J.).
Mullins v. Harry's Mobile Homes, Inc., 861 F.Supp. 22, 23 (S.D.W.Va.1994) (Faber, J.); accord Corwin Jeep Sales & Service, Inc. v. American Motors Sales Corp., 670 F.Supp. 591 (M.D.Pa.1986).
Mullins, 861 F.Supp. at 23; see also Corwin, 670 F.Supp. at 591; Smith v. Executive Fund Life Ins. Co., 651 F.Supp. 269 (M.D.La.1986).
The Court has examined a breach of contract action somewhat analogous to the case at bar. Mullins v. Harry's Mobile Homes, Inc., 861 F.Supp. 22, 23 (S.D.W.Va. 1994) (Faber, J.). In Mullins, plaintiffs sought compensatory damages for: (1) the amount of the contract, seventeen thousand nine hundred ninety-five dollars ($17,995.00); (2) finance charges plaintiffs incurred; and, (3) "aggravation, annoyance and inconvenience." Id. at 23. Plaintiffs also requested an award of punitive damages. Other than the contract price, the Complaint did not place specific dollar amounts on the respective items of damages claimed. In opposing the removal, plaintiffs contended, inter alia, defendant's rejection of their forty-five thousand dollar ($45,000.00) settlement offer was evidence the amount in controversy did not meet the requisite amount.
The Court further viewed Plaintiffs forty-five thousand dollar ($45,000.00) settlement offer as evidence the threshold amount in controversy was met.
In the instant case, the Court looks to the record to evaluate whether the jurisdictional amount has been satisfied. Specific monetary losses alleged are minimal.
In his Motion to Remand, Plaintiff asserts he sustained medical expenses in the amount of three thousand two hundred fifteen dollars and seventy-five cents ($3,215.75). (Pl.'s Motion at 1). As noted, Plaintiff...
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...the plaintiff to make a firm election concerning the amount of damages it will claim in state court. See generally Adkins v. Gibson, 906 F.Supp. 345, 348 (S.D.W.Va.1995) (the amount stated is subject to accountability under Fed.R.Civ.P. 11 and similar rules). Second, it encourages early rem......
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Sayre v. Potts
...in controversy has not been established to a legal certainty to be less than the jurisdictional minimum"); Adkins v. Gibson, 906 F.Supp. 345, 348 (S.D.W.Va.1995) (Haden, J.) (remanding case because "the Court finds and concludes the amount in controversy has been established to a legal cert......
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...damages by applying the legal certainty test. Cline v. Matney, 20 F.Supp.2d 977 (S.D.W.Va.1998) (Haden, C.J.); Adkins v. Gibson, 906 F.Supp. 345 (S.D.W.Va.1995) (Haden, C.J.); Mullins v. Harry's Mobile Homes, Inc., 861 F.Supp. 22 (S.D.W.Va. 1994) (Faber, J.). The United States Supreme Court......
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...however, looks at the record as a whole as of the time the issue was raised, including affidavits. Id.; see also Adkins v. Gibson, 906 F.Supp. 345, 347 (S.D.W.Va. 1995). Once the removing defendant has made the required prima facie showing, the plaintiff must prove "to a legal certainty" th......