Heintz v. Ohio Cas. Ins. Co.

• Decision Date: 04 May 1953
• Docket Number: No. 13892.,13892.
• Citation: 112 F. Supp. 199
• Parties: HEINTZ v. OHIO CAS. INS. CO. et al.
• Court: U.S. District Court — Southern District of California

112 F. Supp. 199

HEINTZ v. OHIO CAS. INS. CO. et al.

No. 13892.

United States District Court S. D. California, Central Division.

May 4, 1953.

Leonard Horwin and Wolfson & Essey, by Leonard Horwin, Beverly Hills, Cal., for plaintiff.

Parker, Stanbury, Reese & McGee, by White McGee, Jr., Los Angeles, Cal., for defendants Ohio Cas. Ins. Co. and Larry Clark.

TOLIN, District Judge.

This case was removed to the District Court from the Superior Court of the State of California in and for the County of Los Angeles. Jurisdiction in this Court is claimed to exist because of diversity of citienship. 28 U.S.C.A. § 1332:

"Diversity of citizenship; amount in controversy

"(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between:

"(1) Citizens of different States; * * *".

As this case originated in a California court, if there is not total diversity, the litigation should be remanded to the state court. Diversity must appear from the allegations of an appropriate pleading, usually the complaint. Levering & Garrigues Co. v. Morrin, 2 Cir., 61 F.2d 115, affirmed 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062.

The complaint, which has now beer superseded by an amended complaint, named but one defendant, Ohio Casualty Insurance Company, a corporation, and alleged that said defendant is a corporation organized and existing under the laws of Ohio. The petition for removal to this Court alleges that the controversy is wholly between citizens of different states in that petitioning defendant, then the only defendant, "* * * is * * * a citizen of the State of Ohio * * *" and that "* * * the plaintiff * * * at the time of the commencement of said action and ever since has been and still is a citizen of the State of California; * * *." This is a sufficient recitation of diversity of citizenship to support the removal to this Court.

Although it is true that addition of a merely nominal party had no effect upon the jurisdiction thus conferred (if the proof supports the allegation), it is equally true that the addition of a real party defendant whose citizenship also be California (the State of plaintiff's citizenship) would destroy the diversity upon which jurisdiction in the United States District Court rests.

Following the transfer, plaintiff filed a first amended complaint wherein he joined as defendants Palmer N. Larson and Larry Clark, a co-partnership, doing business as Palmer Larson Agency.

This action is one wherein plaintiff seeks to recover damages under a contract of public liability and property damage insurance which he claims created insurance in his favor against the lawful demands of parties injured or damaged by reason of negligent operation of a certain motor vehicle owned and operated by plaintiff. He had an accident, was sued in the Superior Court of the State of California in and for the County of Los Angeles by the injured persons and having paid judgments recovered there against him, claims the benefit of his policy of insurance. Defendant insurance company has answered, denying liability and affirmatively pleading a provision in the policy of insurance which is alleged to read in pertinent portion:

"This policy does not apply:

* * * * * *

"(c) * * * while the automobile is used for towing of any trailer * * *".

It appears that plaintiff's vehicle which was involved in the accident was a truck with trailer attached. The amended complaint seeks to avoid said exclusion paragraph by pleading in substance that the defendant insurance company, through its agents, represented that the policy of insurance protected the plaintiff against liability arising from its operations which it is alleged consisted of operating a truck and trailer customarily employed therewith, as said defendant well knew. Plaintiff claims reliance on defendant's assurance that the policy was...