Bull v. BIG THREE, INCORPORATED, Civ. No. 74-77.

• Decision Date: 28 June 1974
• Docket Number: Civ. No. 74-77.
• Citation: 379 F. Supp. 41
• Parties: Wiley Arnold BULL, Plaintiff, v. BIG THREE, INCORPORATED, a corporation, et al., Defendants, and Bankers & Shippers Insurance Company of New York, a foreign insurance corporation, Third-Party-Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

379 F. Supp. 41

Wiley Arnold BULL, Plaintiff, v. BIG THREE, INCORPORATED, a corporation, et al., Defendants, and Bankers & Shippers Insurance Company of New York, a foreign insurance corporation, Third-Party-Defendant.

Civ. No. 74-77.

United States District Court, E. D. Oklahoma.

June 28, 1974.

Albert R. Matthews, Bonds, Matthews, Bonds & Cartwright, Muskogee, Okl., for plaintiff.

Andrew Wilcoven, Muskogee, Okl., for Big Three, Inc., and Delson Hill.

Thomas L. Palmer, Tulsa, Okl., for Southern Farm Bureau Casualty Ins. Co.

John H. Tucker, Tulsa, Okl., for Royal Globe Ins. Co.

Andrew Wilcoxen, Muskogee, Okl., for Bankers & Shippers Ins. Co. of New York.

ORDER REMANDING CASE

MORRIS, District Judge.

This case was originally brought in state court by the plaintiff Bull against Big Three, Inc., and Hill seeking damages for personal injuries suffered by plaintiff in an automobile accident involving plaintiff and Hill. Big Three, Inc., was alleged to be the owner of the truck driven by Hill.

Defendants Hill and Big Three, Inc., filed their petition for removal based on diversity of citizenship and an amount in controversy exceeding $10,000. That case was numbered 73-301. The Honorable Fred Daugherty issued an order remanding the case to state court on January 11, 1974, on the grounds that the attempted removal was not brought within the 30 day time limit as provided in 28 U.S.C. § 1446(b).

Subsequently, in state court, plaintiff's motion to add the defendants Royal Globe Insurance Company and Southern Farm Bureau Casualty Insurance Company was granted. The defendant insurance companies then within 30 days after being joined as defendants, filed their petition for removal to this court, asserting diversity of citizenship and an amount in controversy exceeding $10,000. The defendants Hill and Big Three, Inc., joined in the petition for removal. That case is numbered 74-77 Civil. The defendant insurance companies also filed answers, counterclaims, cross-claims, and a third party complaint seeking to add Bankers & Shippers Insurance Company of New York as a third party defendant. In their counterclaims and cross-claims defendants ask for a declaratory judgment as to their liability under their respective insurance policies.

Plaintiff has moved to remand the case to the state court asserting that no separate and independent claim or cause of action was asserted by plaintiff when he added the defendant insurance companies. Defendants contend that the court should retain jurisdiction of at least the issues in their counterclaims and cross-claims since these claims amount to separate and independent controversies entitling them to removal under 28 U.S.C. § 1441(c).

Only one cause of action or claim exists here. In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) the court concluded "that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." In that case the plaintiff was seeking to recover damages from two different insurance companies and one of their agents. Removal by the insurance companies was denied.

However, even if defendants have successfully pleaded a separate and independent controversy in their counterclaims and cross-claims, they are not entitled to removal. "In a removed case where the Court is called upon to determine the existence of a separate and independent controversy under 28 U.S.C. § 1441(c), the Court may look only to the allegations of the State Court plaintiff's petition or complaint by which the action was initiated." Mid-State Homes, Inc. v. Swain, 331 F.Supp. 337 (W.D.Okla. 1971). To interpret § 1441(c) in any other manner would be to allow the defendant to "bo...