Griffin v. Wausau Ins. Companies, No. 3:01CV7611.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtKatz
Citation189 F.Supp.2d 714
Docket NumberNo. 3:01CV7611.
Decision Date15 February 2002
PartiesRegina GRIFFIN, etc., Plaintiff, v. WAUSAU INSURANCE COMPANIES, et al., Defendant.
189 F.Supp.2d 714
Regina GRIFFIN, etc., Plaintiff,
v.
WAUSAU INSURANCE COMPANIES, et al., Defendant.
No. 3:01CV7611.
United States District Court, N.D. Ohio, Western Division.
February 15, 2002.

Page 715

Michael J. Leizerman, Ronald F. Leonhardt, Law Office of E.J. Leizerman, Toledo, OH, for plaintiff, Regina Griffin, Individually and As Administrator of the Estate of deceased, Jamila Maddox.

Donald J. Moracz, Jeanne M. Mullin, Reminger & Reminger, Sandusky, OH, for defendant, Wausau Insurance Companies.

MEMORANDUM OPINION

KATZ, District Judge.


This matter is before the Court on Plaintiff Regina Griffin's motion to remand (Doc. No. 8) this case to the Court of Common Pleas for Lucas County, Ohio. Because this Court lacks jurisdiction, the motion will be granted.

BACKGROUND

On May 18, 1997, Jamila Maddox ("Maddox") suffered fatal injuries when the car in which she was a passenger was involved in an accident.1 Maddox is survived by

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her mother, Regina Griffin ("Griffin"), who is the Plaintiff in this action, both individually and as administrator of Maddox's estate. Maddox was an Ohio citizen, and Griffin is an Ohio citizen.

At the time of the accident, Maddox was employed by The Cobham Family, Inc. ("Cobham"). Cobham was insured by Defendant Wausau Insurance Companies ("Wausau"), under a Commercial General Liability Policy, Policy No. 086700003555 (the "Policy"). Wausau is a Wisconsin corporation. Wausau does not dispute that Cobham is an Ohio corporation with its principal place of business in Ohio.

On October 30, 2001, Griffin filed suit for benefits under the uninsured/underinsured motorist (UM/UIM) coverage provisions of the Policy issued to Cobham. Griffin also brought suit against her own employer's insurer, Zurich North America, a Pennsylvania corporation. Griffin claimed that she was entitled to coverage pursuant to the rule stated in Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 710 N.E.2d 1116 (1999). Scott-Pontzer stands for the proposition that an employee may recover under the UM/UIM coverage of her employer's commercial automobile liability policy, even though the employee was not acting in the scope of employment at the time of her accident. In Ezawa v. Yasuda Fire & Marine Ins. Co., 86 Ohio St.3d 557, 715 N.E.2d 1142 (1999), the Ohio Supreme Court, without comment, extended Scott-Pontzer to include coverage of the child of a covered employee.

On November 29, 2001, Wausau removed the action to this Court.2 Jurisdiction was predicated on diversity, 28 U.S.C. § 1332. Griffin filed a motion to remand. She claims that complete diversity is destroyed by operation of 28 U.S.C. § 1332(c)(1), which, in certain situations, deems an insurance company to share the citizenship of its insured. If the statute were to operate as Griffin suggests, Wausau would be a citizen of both Wisconsin and Ohio. Wausau has opposed the motion, arguing that § 1332(c)(1) does not apply. Griffin has filed a reply, and the parties' contentions are addressed below.

DISCUSSION3

Griffin claims that diversity is destroyed by 28 U.S.C. § 1332(c)(1), which provides,

(c) For the purposes of this section and section 1441 of this title —

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.

28 U.S.C. § 1332(c)(1).

The Supreme Court has noted that the so-called "direct action exception" to diversity jurisdiction was enacted in an effort to trim the burgeoning dockets of district courts in Wisconsin and Louisiana, both of which were experiencing increased diversity filings due to state statutes that

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permitted an injured party to sue an instate tortfeasor's out-of-state insurer without joining the tortfeasor:

Believing that such suits did "not come within the spirit or the intent of the basic purpose of the diversity jurisdiction of the Federal judicial system," S.Rep. No. 1308, [88th Cong.2d Sess.], at 7, Congress enacted the proviso "to eliminate under the diversity jurisdiction of the U.S. district courts, suits on certain tort claims in which both parties are local residents, but which, under a State `direct action' statute, may be brought directly against a foreign insurance carrier without joining the local tort-feasor as a defendant[.]" id. at 1 (emphasis added).

Northbrook Nat'l Ins. Co. v. Brewer, 493 U.S. 6, 10, 110 S.Ct. 297, 299, 107 L.Ed.2d 223 (1989).

Wausau argues that § 1332(c)(1) is inapplicable to Scott-Pontzer actions for two reasons. First, it contends that Griffin's complaint does not constitute a "direct action." Second, it maintains that a policy providing UM/UIM coverage is not "a policy of liability insurance."4

1. Direct Action

Wausau claims that the general rule for identifying direct actions was set forth in Vargas v. California State Auto. Ass'n Inter-Insurance Bureau, 788 F.Supp. 462 (D.Nev.1992). In Vargas, the Court stated, "[T]his direct action exception that destroys diversity exists only where a third-party tort victim forgoes suing the tortfeasor in favor of instead suing the...

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2 practice notes
  • Peterson v. Tig Specialty Ins. Co., No. C-2-02-311.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 26, 2002
    ...actions. See Stubbins v. Nationwide Agribusiness Ins. Co., 181 F.Supp.2d 805 (N.D.Ohio 2002) (Karr, J.); Griffin v. Wausau Ins. Cos., 189 F.Supp.2d 714 (N.D.Ohio 2002) (Katz, J.); Butler v. Zurich Am. Ins. Co., 184 F.Supp.2d 695 (N.D.Ohio 2002) (Katz, C. Northern District Cases Denying Rema......
  • Northern Ins. Co. of New York v. Olmstead, No. 3:02 CV 7564.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 13, 2003
    ...fully elaborated upon by this Court in Butler v. Zurich Am. Ins. Co., 184 F.Supp.2d 695 (N.D.Ohio 2002), Griffin v. Wausau Ins. Cos., 189 F.Supp.2d 714 (N.D.Ohio 2002), and Northrup v. Liberty Mut. Group, No. 02-7049 (N.D.Ohio July 8, 2002). Moreover, in Butler, Griffin, and Northrup, this ......
2 cases
  • Peterson v. Tig Specialty Ins. Co., No. C-2-02-311.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 26, 2002
    ...actions. See Stubbins v. Nationwide Agribusiness Ins. Co., 181 F.Supp.2d 805 (N.D.Ohio 2002) (Karr, J.); Griffin v. Wausau Ins. Cos., 189 F.Supp.2d 714 (N.D.Ohio 2002) (Katz, J.); Butler v. Zurich Am. Ins. Co., 184 F.Supp.2d 695 (N.D.Ohio 2002) (Katz, C. Northern District Cases Denying Rema......
  • Northern Ins. Co. of New York v. Olmstead, No. 3:02 CV 7564.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 13, 2003
    ...fully elaborated upon by this Court in Butler v. Zurich Am. Ins. Co., 184 F.Supp.2d 695 (N.D.Ohio 2002), Griffin v. Wausau Ins. Cos., 189 F.Supp.2d 714 (N.D.Ohio 2002), and Northrup v. Liberty Mut. Group, No. 02-7049 (N.D.Ohio July 8, 2002). Moreover, in Butler, Griffin, and Northrup, this ......

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