Clark v. National Travelers Life Ins. Co.

• Decision Date: 01 July 1975
• Docket Number: No. 75-1071,75-1071
• Citation: 518 F.2d 1167
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Rose M. CLARK, Plaintiff-Appellant, v. NATIONAL TRAVELERS LIFE INSURANCE COMPANY, Defendant-Appellee.

Page 1167

518 F.2d 1167

Rose M. CLARK, Plaintiff-Appellant, v. NATIONAL TRAVELERS LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 75-1071.

United States Court of Appeals Sixth Circuit.

July 1, 1975.

Albert C. Harvey, Thomason, Crawford & Hendrix, Memphis, Tenn., for plaintiff-appellant.

Henry T. V. Miller, Edward P. A. Smith, Memphis, Tenn., for defendant-appellee.

Before PECK, McCREE and ENGEL, Circuit Judges.

PER CURIAM.

In this appeal from the denial of a double indemnity payment for accidental death under a life insurance policy, ¹ the parties presented for our consideration the questions whether the district court erred in holding that the policy should be construed in accordance with the law of the forum state, Tennessee, and not in accordance with the law of New York, and whether it erred in holding that the law of Tennessee would not permit recovery.

During oral argument, the court raised sua sponte the question whether the district court had jurisdiction of the cause under 28 U.S.C. § 1332, the diversity of citizenship statute, ² because the double indemnity benefits demanded amounted only to $10,000. Supplemental briefs were submitted, and both parties assert that the district court had jurisdiction because appellant in the ad damnum clause of the complaint prayed for damages of "Ten Thousand Dollars ($10,000.00), plus incidental and consequential damages, all statutory penalty and attorney's fees, costs and interest; and for all other relief."

The dispositive question is whether this request for a statutory penalty and attorney's fee, standing alone in the ad damnum clause and unsupported by any statement showing entitlement to these items of damages provides the amount indispensable for jurisdiction in excess of the $10,000 claim under the policy. See, e. g., Doucet v. Travelers Insurance Co., 362 F.2d 263 (5th Cir. 1966). It is settled that the statutory penalty and a statutory attorney's fee can be considered in determining whether the jurisdictional amount is met, e. g., Missouri State Life Insurance Co. v. Jones, 290 U.S. 199, 54 S.Ct. 133, 78 L.Ed. 267 (1933); Peacock & Peacock, Inc. v. Stuyvesant Insurance Co., 332 F.2d 499 (8th Cir. 1964); Columbian National Nevertheless, in this case, there is no averment that appellee refused in bad faith to make the double indemnity payment, and even the most liberal reading of the complaint ³ required by "notice pleading" discloses only a single claim that $10,000 is due appellant under the double indemnity terms of the insurance policy. Because there is no "duty (on the part) of the trial court or the appellate court to create a claim which appellant has not spelled out in his pleading," Case v. State Farm Mutual Automobile Insurance Co., 294 F.2d 676, 678 (5th Cir. 1961), and because appellant's complaint does not contain "a short and plain statement of the (statutory penalty) claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), the amount in controversy, despite the ad damnum clause, of the complaint, does not exceed $10,000. ⁴ See Fed.R.Civ.P. 9(b), cf. Bell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Buras v. Birmingham Fire Insurance Co. of Pennsylvania, 327 F.2d 238 (5th Cir. 1964).

Life Insurance Co. v. Harrison, 12 F.2d 986 (6th Cir. 1926), even though the proofs fail to support the theory upon which this relief is requested as long as the claim was made in good faith. E. g., Rogers v. United Service Automobile Ass'n, 410 F.2d 598 (6th Cir. 1969). And, we observe that both in Tennessee and in New York, the state legislatures have provided for recovery of a monetary penalty from an insurance company that refuses in bad faith to pay a claim. See Tenn.Code Ann. § 56-1105, N.Y. Insurance Law, McKinney's Consol. Laws, c. 28 § 59-a subd. 4.

Although defective allegations of jurisdiction may be amended, upon terms, in this court, in accordance with the provisions of 28 U.S.C. § 1653, we observe that no motion has been made in this court to permit an amendment. We also observe that appellant's trial brief contains no statement of proofs to be offered in support of any "unmade" contentions of bad faith refusal to pay, and that she did not introduce at trial any evidence that would have supported an allegation of bad faith refusal to pay the double indemnity amount provided for in the policy.

The judgment of the district court is vacated, and the case is remanded with instructions to dismiss the complaint for want of jurisdiction.

Since the appellant neither alleged nor proved the jurisdiction of the district court and appellee did not raise the fact of its absence, each party will bear its own costs of the...