Davidson v. Liberty Mut. Ins. Co.

• Decision Date: 08 December 2016
• Docket Number: CA 16-0516-KD-C
• Parties: BRENDA DAVIDSON, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Alabama

BRENDA DAVIDSON, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.

CA 16-0516-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

December 8, 2016

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and General Local Rule 72(a)(2)(S), on the notice of removal (Doc. 1), plaintiff's motion to remand (Doc. 8), as supplemented (Doc. 10), defendant Liberty Mutual Insurance Company's¹ response in opposition (Doc. 11),² and plaintiff's reply to the response in opposition (Doc. 14)³.⁴ Based upon aconsideration of only those relevant matters before the Court, the Magistrate Judge recommends that the Court GRANT plaintiff's motion to remand (Doc. 8).⁵

FINDINGS OF FACT

The undersigned finds that the following facts are both undisputed and relevant to consideration of the motion to remand. Brenda Davidson filed a two-count complaint against Liberty Mutual Insurance Company in the Circuit Court of Escambia County, Alabama on September 2, 2016—Count 1 alleging Fraud, Negligence/Wantonness and Count 2 alleging Negligent or Wanton Misrepresentation/Suppression—which arises from the sale of her automobile by the storage yard to which it was towed during the pendency of her insurance claim with the defendant following a May 21, 2016⁶ automobile accident. (Doc. 1, Exhibit A, COMPLAINT, at ¶¶ 5-9.) With respect to Count 1, plaintiff claims the following damages: "Plaintiff paid for insurance coverage with the Defendant that was not provided; Plaintiff lost her vehicle and the use and enjoyment thereof; Plaintiff has suffered severe emotional distress, which continues; Plaintiff has been otherwise injured and damaged. WHEREFORE, Plaintiff demands judgment against Defendant in such an amount of compensatory damages and punitivedamages as a jury deems reasonable and may award, plus costs." (Id. at 3-4.) As for Count 2, plaintiff also "demands judgment against Defendant in such an amount of compensatory and punitive damages as a jury deems reasonable and may award, plus costs." (Id. at 4.)

Liberty Mutual removed this action to this Court on October 6, 2016. (Doc. 1.) Therein, the defendant asserts that removal is proper because this Court may exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332. With respect to the amount in controversy requirement,⁷ the removing party states, in relevant measure, the following:

9. In satisfying its burden on removal, "a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka, 608 F.3d at 754. To the contrary, "Eleventh Circuit precedent permits district courts to make 'reasonable deductions, reasonable inferences, or other reasonable extrapolations' from the pleadings to determine whether it is facially apparent that a case is removable." Roe, 613 F.3d at 1061-62 (quoting Pretka, 608 F.3d at 754). Put simply, "a district court need not 'suspend reality or shelve common sense in determining whether the face of a complaint . . . establishes the jurisdictional amount.' Instead, courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Id. at 1062 . . . . Here, judicial experience and common sense dictate that the amount in controversy put forth in Plaintiff's Complaint easily exceeds $75,000.00. Out of an abundance of caution, however, Defendant will demonstrate that the amount in controversy is satisfied both through the Complaint and also through additional evidence.⁸

10. Plaintiff's claims in this case arise from the sale of her automobile by a storage/towing yard. Plaintiff avers that the wrongful sale of her automobile was due to Liberty Mutual's fraudulent,intentional, negligent, and/or wanton conduct, or Liberty Mutual's knowingly false representations to the Plaintiff. (See Plaintiff's Complaint, at ¶¶ 10, 13, 17). Accordingly, the nature of Plaintiff's alleged damages suggest an amount in excess of the $75,000.00 threshold. After all, Plaintiff's Complaint includes a demand for an unspecified amount of damages for: 1) amounts Plaintiff paid for insurance coverage that was not provided by Liberty Mutual; 2) the loss of Plaintiff's vehicle and the use and enjoyment thereof; 3) Plaintiff's severe emotional distress, which continues; and 4) Plaintiff's other injuries and damages. (Id. at ¶¶ 15, 18). A cursory review of automobile values on the websites of the National Automobile Dealers Association and Kelley Blue Book reveals that [] the Plaintiff's 2015 Chevrolet Camaro SS Coupe may have been worth anywhere from $22,075 to $27,075, depending on the condition of the vehicle and whether it was offered at private sale or as a trade-in.⁹ Furthermore, courts in the Eleventh Circuit have considered a plaintiff's claim for mental anguish or emotional distress in determining the amount in controversy. See Love v. N. Tool & Equip. Co., Inc., 08-20453-CIV, 2008 WL 2955124, [] *5 (S.D. Fla. Aug. 1, 2008);¹⁰see also Butler v. CharterCommunications, Inc., 755 F.Supp.2d 1192, 1196 (M.D. Ala. 2010).¹¹ . . . In short, the Court does not need to "suspend reality or shelve common sense" to determine that the Plaintiff's claimed damages for the loss of her 2015 Chevrolet Camaro SS Coupe, severe emotional distress, and the payment of insurance premiums for coverage which was not provided could easily exceed $25,000 to $30,000. []

11. Plaintiff also demands punitive damages. Plaintiff's demand for punitive damages is, of course, included in the determination of the amount in controversy. Bell v. Preferred Life Assurance Soc'y, 320 U.S. 238, 240 (1943) (claims for compensatory and punitive damages should be aggregated to determine amount in controversy); Holley Equip. Co. v. Credit Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987) ("When determining the jurisdictional amount in diversity cases, punitive damages must be considered, unless it is apparent to a legal certainty that such cannot be recovered.") . . . ; see also South Dallas Water Auth. v. Guarantee Co. of North America, USA, 767 F.Supp.2d 1284, 1303 & n.21 (S.D. Ala. 2011) (holding that the defendant could have "marshaled enough evidence of the jurisdictional facts to support a notice of removal . . . when one considers plaintiff's demand for compensatory and punitive damages"¹²); Blackwell v. Great American Financial Resources, Inc., 620 F.Supp.2d 1289, 1290 (N.D. Ala. 2009) [] ("[I]n determining the jurisdictional amount in controversy in diversity cases, punitive damages must be considered unless it is apparent to a legal certainty that such cannot be recovered.") . . . .

12. In the recent Blackwell decision,¹³ the court held that an unspecified claim of punitive damages can be added to fulfill the amount in controversy requirement when the compensatory damages claim alone falls short. 620 F.Supp.2d at 1292. In Blackwell, the plaintiffs claimed $23,172.28 in compensatory damages, but also claimed an unspecified amount of punitive damages. Id. at 1290. The Blackwell court said that "it is the constitutionally-permissible limits of punitive damages in a particular case that are used to compute the jurisdictional amount-in-controversy requirement." Id. at 1291. Since the compensatory damages in Blackwell were already $23,172.28, the court held that "a punitive award of slightly more than double the compensatory damages claim . . . is uncontroversially (sic) within the limits of the Due Process Clause." Id. Therefore, since that was all that was needed to reach the required amount in controversy, the court found that it had diversity jurisdiction. Id. at 1292.

13. The holding in Blackwell is squarely on point here and helpful to the Court's analysis in this case. Plaintiff[] claim[s] an unspecified amount of punitive damages, which, under Blackwell, should be calculated up to "the constitutionally permissible limits." Id. In this case, even if Plaintiff's potential compensatory damages for the loss of her 2015 Chevrolet Camaro SS Coupe, severe emotional distress, and the payment of insurance premiums for coverage which allegedly was not provided totaled only $25,000[.]00 or $30,000.00 (which is highly unlikely, given the potential value of the Plaintiff's vehicle as discussed above), utilizing the Blackwell analysis those amounts would be sufficient to reach the jurisdictional floor using Plaintiff's punitive damages claim.¹⁴

14. The amount in controversy in this case exceeds the $75,000 statutory threshold. Plaintiff has alleged the loss of a 2015 Chevrolet Camaro SS Coupe and severe emotional distress, along with a claim for unspecified punitive damages, which would support a potential recoveryin excess of the requisite amount. Taking into account these alleged damages, it is beyond clear that Defendant Liberty Mutual has met its burden of proving the amount in controversy exceeds the $75,000.00 requirement.

(Id. at 5-9 (emphasis supplied; certain footnotes added).)

Plaintiff timely filed her motion to remand on November 7, 2016, and therein asserts that the amount in controversy in this case "is less than $75,000.00, which is the jurisdictional limit of this Court pursuant to 28 U.S.C. § 1332[.]"(Doc. 8, at 1.)¹⁵

In its response in opposition, Liberty Mutual has addressed at some length the requests for admission "issue" (see Doc. 11, at 4-7); however, since, as aforesaid, the undersigned's report and recommendation is not informed by the argument that defense counsel has admitted that the amount in controversy in this case is less than $75,000.00 by attempting to avoid responding to plaintiff's propounded requests for admission, the undersigned finds no reason to address this portion of the defendant's response in opposition. The first few pages of the response in opposition are directed to a "condensed" version of the contents of the...