Eagle Star Insurance Company v. Maltes, 19718.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: TUTTLE, , and JONES and GEWIN, Circuit
• Citation: 313 F.2d 778
• Parties: EAGLE STAR INSURANCE COMPANY, Limited, Appellant, v. Augustin MALTES, Gilberto Perez, and Bernabe Arroyo, Appellees.
• Docket Number: No. 19718.,19718.
• Decision Date: 01 March 1963

313 F.2d 778 (1963)

EAGLE STAR INSURANCE COMPANY, Limited, Appellant,
v.
Augustin MALTES, Gilberto Perez, and Bernabe Arroyo, Appellees.

No. 19718.

United States Court of Appeals Fifth Circuit.

March 1, 1963.

313 F.2d 779

Henry Burnett, Miami, Fla., Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel, for appellant.

James A. Franklin, Jr., Henderson, Franklin, Starnes & Holt, Fort Myers, Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.

TUTTLE, Chief Judge.

This appeal presents the threshold inquiry as to the jurisdiction of the trial court. It is a suit filed by three injured parties who allege that they had obtained judgments against the appellant's assured "for the sum of $13,200 damages and costs of $85.80, which said judgments are a matter of record in said court." The complaint did not allege the amount of the judgment of any one of the three appellees. It is obvious that no more than one of them could have had a judgment in excess of $10,000, and when the case came on for hearing on a motion for summary judgment and the three judgments were attached to the motion for summary judgment, it appeared that one, in favor of Arroyo, was for the sum of $10,000, together with costs of $28.60, one in favor of Augustin Maltes, was for the sum of $4,000, together with costs of $28.60, and the other was in favor of Gilberto Perez in the sum of $200, together with costs in the amount of $26.60.

From the face of the complaint it is apparent that the three plaintiffs combined their judgments to produce the amount of the claim asserted in the sum of $13,285.80, together with interest and costs.

Florida does not have a direct action statute, and the appellant did not defend the assured in the prior action where the appellees obtained their judgments.

The main defense of the appellant in this suit by appellees under the policy¹ was that the assured's vehicle was being used as a "public or livery conveyance" at the time of the accident, and by the terms of the policy the assured was excluded from coverage. On appeal the appellant raises the jurisdictional question of aggregating damages to exceed the $10,000 amount in controversy.² Because we reverse the lower court on the jurisdictional question we do not reach the question of policy coverage.

Essentially, the appellant's position is that this case is no different from a suit by three individual plaintiffs against the tortfeasor himself with the insurance company defending the tortfeasor. In such a case there could be no aggregation of claims. Mitchell v. Great

313 F.2d 780

American Indemnity Co., 87 F.Supp. 961 (W.D.La., 1950).³ Appellees admit this to be the law. However, they contend that this is not such a suit, but a suit on a common contract with a common question of law and fact.⁴

Appellees have a further contention on the same theme, viz., that at least one of the judgments of the appellees was in excess of the jurisdictional amount, and that somehow this supports their joint action and aggregation. This adds no strength to the position of the appellees. Since they brought suit on a joint claim, at least claiming it as such so as to aggregate their claims, it must be treated as such, and there can be no such "ancillary" relief granted to the two plaintiffs who do not allege the requisite jurisdictional amount. See Aetna Ins. Co. v. Chicago R. I. & Pac. R.R., 229 F.2d 584, 586 (10th Cir., 1956). Nor may the plaintiff who did have a claim in excess of $10,000, but who did not allege the existence of this claim as a basis of showing the requisite jurisdictional amount amend his complaint in this court to cure the jurisdictional defect. To do so would allow plaintiff to change his suit from an action by these owners of a single joint claim to a suit by a single owner of a separate claim in the appellate court.

The general rule of aggregation to satisfy the jurisdictional amount in controversy has been stated many times, but like many rules of a general nature, it requires an examination of its actual application to the cases to determine its binding effect on a subsequent case with a different factual situation. To aggregate claims of several plaintiffs the plaintiffs must have a "common and undivided interest," though it may be separable as between themselves. But where their interests are distinct, and their only relationship is that "they form a class of parties whose rights or liabilities arose out of the same transaction, or have a relation to a common fund or mass or property sought to be administered, such distinct demands or liabilities cannot be aggregated * * *" Clay v. Field, 138 U.S. 464, 11 S.Ct. 419, 34 L.Ed. 1044 (1891).

A common element in the cases from the Supreme Court on this question of aggregation is a jointness or dependency, as opposed to a separateness, of the rights of the individual plaintiffs in order to aggregate their claims. In Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L. Ed. 817 (1916), the several complainants and defendant were children of the same parents, the complainants claiming that the father unintentionally omitted them from his will, seeking an interest in the one piece of property devised by the will. Although there was one will and one piece of property the Court found that they could...