Cunningham v. State Farm Mutual Automobile Ins. Co.
| Decision Date | 11 April 1969 |
| Docket Number | Civ. A. No. 2323. |
| Citation | 297 F. Supp. 1138 |
| Parties | James Allen CUNNINGHAM, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
James R. Hamrick, Bristol, Tenn., Ferdinand Powell, Jr., Johnson City, Tenn., for plaintiff.
S. Morris Hadden, Ernest F. Smith, Hunter, Smith, Davis, Morris, Waddy & Treadway, Kingsport, Tenn., for defendant.
REVISED*
The plaintiff Mr. Cunningham sued this defendant's insured in tort in this Court, Cunningham v. Higgins, civil action no. 2303, this division, and sued this defendant for breach of a contract of liability insurance in a Tennessee state court. He claims that this defendant contracted thereunder by implication to pay him the full amount of damages for which Mr. Higgins is liable to him. This action was removed to this Court from the state court. 28 U.S.C. §§ 1441(a), 1332(a) (1), (c).
It was alleged in the removal petition herein that the plaintiff in both actions is a citizen of Ohio, that the tortfeasor is a Tennessee citizen, and that the corporate defendant herein is an Illinois corporation, not incorporated by either Tennessee or Ohio, with its principal place of business in Illinois.
The plaintiff moves for a remand of this action as having been removed improvidently without jurisdiction, 28 U.S. C. § 1447(c), because this is a direct action against the insurer of a policy or contract of liability insurance, to which the insured is not joined as a party defendant; and, therefore, that in this situation this defendant-insurer must be deemed a citizen of Tennessee. 28 U.S.C. § 1332(c).
A defendant is not entitled to remove an action from a state court if any of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). The 1964 amendment to 28 U.S.C. § 1332(c), providing that, in a direct action against the insurer of a policy or contract of liability insurance, to which action the insured is not joined as a party-defendant, the insurer is to be deemed a citizen of the state of which the insured is a citizen, was enacted to prevent further increasing of the diversity caseload of federal courts in states (such as Wisconsin and Louisiana), where statutes had been enacted permitting suits directly against insurance companies without the necessity of joining the insured as a party. Henderson v. Selective Insurance Company, C.A.6th (1966), 369 F.2d 143, 149, headnote 3.
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...concluding that diversity jurisdiction existed in this case. 691 F.2d at 902 (citation omitted); see also Cunningham v. State Farm Mut. Auto Ins. Co., 297 F.Supp. 1138 (E.D.Tenn.1969) (§ 1332(c) proviso inapplicable where plaintiff, having sued tortfeasor, institutes subsequent action again......
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West Virginia State Bar v. Bostic, Civ. A. No. 2951.
...federal court. Treinies v. Sunshine Mining Co., 308 U.S. 66, at 71, 60 S.Ct. 44, 84 L.Ed. 85 (1939); Cunningham v. State Farm Mutual Automobile Ins. Co., 297 F.Supp. 1138 (E.D. Tenn.1969). The existence of diversity of citizenship in this case, even when viewed most favorably for Sherman, i......
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...at least in Louisiana. Id.; Henderson v. Selective Insurance Co., 369 F.2d 143, 149 (6th Cir. 1976); Cunningham v. State Farm Mutual Automobile Ins. Co., 297 F.Supp. 1138 (E.D.Tenn.1969). The proviso operates to divest a court of federal diversity jurisdiction when there is (1) a policy or ......
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