Insinga v. LaBella

• Citation: 845 F.2d 249
• Decision Date: 21 April 1988
• Docket Number: No. 86-5906,86-5906
• Parties: John INSINGA, as Personal Representative of the Estate of Mildred Insinga, Deceased, Plaintiff-Appellant, v. Michelle LaBELLA, et al., Defendants. Humana, Inc., d/b/a Biscayne Medical Center, Defendant-Appellee. Eleventh Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 249

845 F.2d 249

John INSINGA, as Personal Representative of the Estate of Mildred Insinga, Deceased, Plaintiff-Appellant, v. Michelle LaBELLA, et al., Defendants.

Humana, Inc., d/b/a Biscayne Medical Center, Defendant-Appellee.

No. 86-5906.

United States Court of Appeals,Eleventh Circuit.

April 21, 1988.

Freiden & Hirsch, P.A., Joel D. Eaton, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, Fla., for plaintiff-appellant.

Henry Burnett, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Daniel F. Beasley, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and MURPHY ^**, District Judge.

PER CURIAM:

John Insinga, as personal representative of the estate of his late wife Mildred, appeals from an order entered by the United States District Court for the Southern District of Florida directing a verdict against him and in favor of the defendant-appellee, Humana, Inc., d/b/a Biscayne Medical Center ("Humana" or "Biscayne"). We hold that the district court had jurisdiction of the case. However, because it appears that the substantive controversy involves a question of Florida law which is determinative of the cause of action, but unanswered by controlling precedent of the Supreme Court of Florida or any other Florida appellate court, we certify the question for resolution by the highest court of that state.

On January 19, 1981, an individual named Morton Canton admitted Mildred Insinga, who was 68 years old at the time, to Biscayne, a hospital in North Miami, Florida. At that time, Canton was masquerading as a medical doctor under the name of "Dr. Michelle LaBella." Mrs. Insinga died on February 6, 1981 while a patient in the hospital. It was subsequently discovered that Canton was not a medical doctor, but rather, a fugitive from justice in Canada where he was under indictment for the manufacture and sale of illegal drugs. Canton had fraudulently obtained a medical license from the State of Florida and staff privileges at Biscayne using the name of Dr. LaBella, a deceased Italian physician.

Insinga filed a wrongful death action against several defendants in the Eleventh Judicial Circuit Court of Florida. The amended complaint contained charges against (1) Dr. LaBella, a/k/a Canton, for negligence in failing to diagnose and properly treat Mrs. Insinga; (2) the Board of Medical Examiners of the State of Florida ("Board"), for negligence in licensing Canton/LaBella; (3) the Department of Professional Regulation of the State of Florida ("Department"), for negligence in issuing a license to Canton/LaBella; and (4) Humana, a Delaware corporation with its principal place of business in Kentucky, for negligence in granting Canton/LaBella medical staff privileges. Because of the presence of two Florida defendants, there was not the requisite diversity of citizenship present to support removal of the case to federal court.

Canton was extradited to Canada and never served with process. ¹ The remaining defendants filed motions for summary judgment. During the pendency of these motions, the plaintiff voluntarily dismissed the Department. The Board's motion for summary judgment was granted on sovereign immunity grounds, but the state trial court denied Humana's motion. The state trial court entered a final judgment for the Board on June 3, 1986.

On the Monday following the expiration of 30 days from the date it received notice of the judgment in favor of the Board, Humana, as the sole remaining defendant, removed the case to the United States District Court for the Southern District of Florida. The plaintiff filed a motion to remand, contending, inter alia, that complete diversity of citizenship had not been created by a "voluntary" act of the plaintiff, but was the result of an "involuntary" dismissal of the remaining non-diverse defendant. The district court denied the motion without elaboration.

The jury trial against Humana began on August 25, 1986. In his opening statement, plaintiff's counsel stated that he intended to prove that Canton/LaBella negligently diagnosed and treated Mrs. Insinga and that, had she been properly treated, she would have had a 90% chance of survival. Counsel also said that he intended to prove that (1) Canton/LaBella was not a doctor, but a wanted criminal who had assumed the identity of a dead Italian physician; (2) he had fraudulently obtained a license from the State of Florida and staff privileges at Biscayne; (3) the hospital was negligent in failing to follow its own procedures to verify LaBella's application and because it breached the prevailing standard of care in granting him staff privileges; and (4) such lack of care was the cause of Mrs. Insinga's death. Although it is undisputed that Mrs. Insinga employed "Dr. LaBella" to treat her ailments several months before being admitted to Biscayne, the plaintiff claims that he and his wife relied on LaBella's representation that he had staff privileges at Biscayne in selecting him as her physician.

Prior to the close of the plaintiff's evidence, the district court, sua sponte, directed a verdict in favor of Humana. A written order followed on September 3, 1986, in which the district court concluded that, under Florida law, Humana did not owe Mrs. Insinga any duty of care and that, therefore, the plaintiff failed to state a cause of action against Humana. The district court was persuaded that the case was governed by Reed v. Good Samaritan Hospital Ass'n, 453 So.2d 229, 230 (Fla. 4th D.C.A.1984) in which the court held that, "a hospital is not vicariously liable for the tortious acts of an independent contractor such as a physician in private practice to whom it has merely granted staff privileges." See also, Wilson v. Lee Memorial Hospital, 65 So.2d 40 (Fla.1953). The court distinguished the instant case from Beam v. University Hospital Building, Inc., 486 So.2d 672 (Fla.Dist.Ct.App.1986), in which the court referred to the corporate negligence doctrine in dictum, on the basis that, unlike the plaintiff in this case, the plaintiff in Beam did not have the opportunity to select his own physician. The district court further noted that, heretofore, the corporate negligence doctrine has not been explicitly adopted in Florida and declined to apply the doctrine to this case. This appeal followed the denial of the plaintiff's motion for a rehearing.

Before us, the plaintiff argues (1) that the case was not properly removed from state court to the federal forum and (2) that, if the case was removable, Florida law recognizes the corporate negligence doctrine, under which a hospital could be held directly liable for its failure to properly investigate a medically incompetent applicant for staff privileges. See generally Annot. 51 ALR 3d 981 (1973).

In challenging the district court's refusal to remand the case to the state court, the plaintiff relies upon the long-standing, judicially created "voluntary-involuntary" rule. This is a rule developed in diversity cases "that if the resident defendant was dismissed from the case by the voluntary act of the plaintiff, the case became removable, but if the dismissal was the result of either the defendant's or the court's action against the wish of the plaintiff, the case could not be removed." Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir.1967), ² quoting Note, The Effect of Section 1446(b) on the Non-Resident's Right to Remove, 115 U.Pa.L.Rev. 264, 267 (1966). See Great No. Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918); American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909); Kansas City Suburban Belt Ry. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900).

The proper time for removal is governed by 28 U.S.C. Sec. 1446(b), which was amended to substantially its present form in 1949. Act of May 24, 1949, 63 Stat. 101, ch. 139, Sec. 83. The statute reads, in pertinent part, as follows:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Thus, the literal language of the statute does not appear to support the plaintiff's position. However, section 1446(b), as amended in 1949, has been widely interpreted as preserving the voluntary-involuntary rule. See 2 U.S.Code Cong.Serv. 1268, 81st Cong., 1st Sess. (1949). See also Weems, 380 F.2d at 548-49; 14A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d Sec. 3723 at 317-18 (1985); 1A Moore's Federal Practice para. 0.168 [3.-5-6] at 597 (1987).

Even though diversity was not created by a voluntary act of the plaintiff, Humana argues that the voluntary-involuntary rule does not mandate a remand in this case because the underlying justification for the rule is not present here. Humana contends that the only reason behind the rule is the desire to avoid a transfer of a case to federal court where the removal is premised on developments in the state court that could later be reversed by a state appellate court thereby relegating the parties to their non-diverse positions originally pled in the complaint. Thus, Humana, in essence, contends that the voluntary-involuntary rule rests solely upon the foundations of comity and judicial efficiency and that the principal consideration in this regard is finality. See Self v. General Motors Corp., 588 F.2d 655, 660 (9th Cir.1978) (Ely, J., dissenting). In this case,...