Ferrara v. Aetna Cas. and Sur., Civ. No. 77-2095.
| Decision Date | 06 September 1977 |
| Docket Number | Civ. No. 77-2095. |
| Citation | 436 F. Supp. 929 |
| Parties | Mrs. Totsi L. FERRARA, by her sister and next friend, Cleo Dagley, Plaintiff, v. The AETNA CASUALTY AND SURETY, Defendant. |
| Court | U.S. District Court — Western District of Arkansas |
Robert S. Blatt, Fort Smith, Ark., for plaintiff.
William P. Thompson, Fort Smith, Ark., for defendant.
On June 22, 1977, the plaintiff, Mrs. Totsi Ferrara, by her sister and next friend, Cleo Dagley, commenced suit against Aetna Casualty and Surety Company. The complaint alleges that the plaintiff, Mrs. Ferrara, is a citizen of Arkansas and that Aetna is a Connecticut corporation with its principal place of business in a state other than Arkansas. Mrs. Ferrara contends that she was damaged in an amount exceeding $10,000.00 due to the negligence of the employees of St. Edward's Mercy Medical Center.
By statute the State of Arkansas has provided a direct cause of action against the liability insurers of charitable organizations immune from tort liability. Ark.Stat.Ann. § 66-3240 provides as follows:
When liability insurance is carried by any co-operative nonprofit corporation, association or organization or by any municipality, agency or subdivision of a municipality or of the State or by any improvement district, school district, or by any other organization or association of any kind or character, not subject to suit for tort, and any person, firm or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of any such organization, association, municipality or subdivision, its servants, agents or employees acting within the scope of their employment or agency, then such person, firm or corporation so injured or damaged shall have a direct cause of action against the insurer with which such liability insurance is carried to the extent of the amount or amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy, and such insurer shall be directly liable to such insured person, firm or corporation for such damages to the extent of such coverage in such liability insurance policy, and the plaintiffs may proceed directly against the insurer regardless of the fact that the actual tortfeasor may not be sued under the laws of the state.
The attorneys have agreed that St. Edwards Mercy Medical Center is a non-profit corporation, organized under the laws of Arkansas with its principal place of business in Fort Smith and that it is a charitable institution immune from tort liability.
On July 29, 1977, the defendant filed its motion to dismiss alleging the lack of diversity of citizenship between the parties. The defendant contends that this suit is governed by the proviso of 28 U.S.C. § 1332(c) so that Aetna is deemed a citizen of Arkansas.
28 U.S.C. § 1332(c) provides as follows:
(c) For the purpose 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...
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