Campbell v. Insurance Co. of North America, 76-4333
| Citation | 552 F.2d 604 |
| Decision Date | 18 May 1977 |
| Docket Number | No. 76-4333,76-4333 |
| Parties | Martha Nell CAMPBELL, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant, Sentry Life Insurance Company, Intervenor. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas E. Kurth, George E. Seay, Dallas, Tex., for defendant-appellant.
Robert C. Fults, Dallas, Tex., Smith E. Gilley, Richard A. Beacom, Jr., Greenville, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before AINSWORTH, MORGAN and GEE, Circuit Judges.
This is an attempted appeal via trial de novo from an award of workmen's compensation by the Texas Industrial Accident Board. Diversity jurisdiction would exist but for 28 U.S.C. § 1332(c):
"(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business."
The district court dismissed the insurance company's suit on the authority of Hernandez v. Travelers Insurance Co., 489 F.2d 721 (5th Cir. 1974), in which we held that in such an attempted appeal by the injured workman, the insurer sued should be deemed a citizen of the state of the insured-employer. Diversity jurisdiction was therefore wanting.
The sole distinction between Hernandez and this case is that here it is the insurer which wishes to appeal and has sought to invoke federal jurisdiction to do so. We hold it is without a difference. All the policy considerations arguing for the application of § 1332(c) made in Hernandez, and so well set out there, argue that it be applied here. Appellant asserts that this is not such a "direct action against the insurer" as § 1332(c) concerns. As for "directness," the case is as immediate between the injured claimant and the insurer as was Hernandez. That opinion disposes of all but the circumstance that here the shoe is on the other foot, the insurer is bringing suit to appeal against the...
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