Kolb v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

• Decision Date: 05 February 1959
• Docket Number: Civ. No. 3731.
• Parties: Rosetta C. KOLB, Plaintiff, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

170 F. Supp. 97

Rosetta C. KOLB, Plaintiff, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA et al., Defendants.

Civ. No. 3731.

United States District Court W. D. Kentucky, Louisville Division.

February 5, 1959.

Louis Cohen, Louisville, Ky., for plaintiff.

Thomas W. Bullitt, Louisville, Ky., for defendants.

SHELBOURNE, Chief Judge.

This action was filed in the Jefferson Circuit Court December 3, 1958. The plaintiff, Rosetta C. Kolb, seeks a judgment against the defendant, The Prudential Insurance Company of America, John K. Haire, Earl Jones, and Derby City Agency, in the amount of $14,000, less the first year's premium on a policy of life insurance which the plaintiff claims was sold John L. Kolb on June 27, 1958, and which plaintiff contends was in effect at the time of Kolb's death which occurred on June 28, 1958.

It is alleged in the complaint that The Prudential maintains an agency in Louisville, Kentucky, under the name of Derby City Agency and that defendants John K. Haire and Earl Jones are the representatives of The Prudential and general agents of the company; that John K. Haire and Earl Jones negotiated with John L. Kolb for a policy of life insurance and sold same to Kolb, collecting $2 of the first premium on June 27, 1958, and that under the negotiations the insurance was effective immediately. The plaintiff, Rosetta C. Kolb, claims that she was to be the beneficiary under the policy and to receive $5,000 in cash, the remaining $9,000 was for the payment of a mortgage on the property owned by John L. Kolb and Rosetta C. Kolb held by the Avery Building Association. Judgment is sought against The Prudential, John K. Haire, Earl Jones, and Derby City Agency, jointly and severally.

December 18, 1958, the defendant Prudential filed its petition for removal, in which it was alleged that The Prudential is a corporation of New Jersey and a citizen and inhabitant of that state; that the defendants Haire and Jones are not parties in interest, and that each was joined improperly and fraudulently for the sole purpose of preventing The Prudential from removing the action into this Court and to fraudulently avoid and defeat the jurisdiction of the United States District Court; that there is in the action a controversy between the plaintiff, Rosetta C. Kolb, and The Prudential Insurance Company of America which is wholly between citizens of different states and can be fully determined as between them.

December 26, 1958, the plaintiff filed a motion to remand the action to the Jefferson Circuit Court. The defendant Prudential filed the affidavit of Richard H. Miller, Resident Manager for The Prudential at Louisville, Kentucky, in which it is averred that defendants John K. Haire and Earl Jones were Special Agents of The Prudential authorized to solicit applications for insurance, but neither of them had the power or authority to sell a policy of life insurance except as a soliciting agent. The affidavit of the plaintiff was filed, in which she says that both Haire and Jones represented to her husband, John L. Kolb, that they were agents of The Prudential with full power to bind The Prudential and that they collected a partial premium of $2, assuring John L. Kolb that the policy was effective immediately.

The question before the Court is whether, under the terms of Section 1441(c) of Title 28, "a separate and independent claim or cause of action" is embodied in the complaint, and whether the joinder of Haire and Jones as defendants was fraudulent to defeat federal jurisdiction. Considering the motion to remand, the allegations of the complaint must control. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702; Great Northern Railway Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334.

The substantive law of the state wherein the alleged acts occurred determines the question whether there exists in the pleading a separate and independent claim or cause of action which will permit removal.

In the case of Bentley v. Halliburton Oil Well Cementing Co., 5 Cir., 174 F.2d 788, 791, the court said, with respect to Section 1441(c) which became effective September 1, 1948:

"The separable controversy was uprooted, but the soil in which it flourished remains. The difference between the two concepts is one of degree, not of kind; and the basic principles are as applicable now as they were under prior statutes. We are still governed by the local law as to the plaintiff's substantive right and the joint or several character of his

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