Lester v. Prudential Ins. Co. of America

• Decision Date: 15 July 1938
• Docket Number: No. 4436.,4436.
• Citation: 24 F. Supp. 54
• Parties: LESTER v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. District Court — District of Massachusetts

24 F. Supp. 54

LESTER v. PRUDENTIAL INS. CO. OF AMERICA.

No. 4436.

District Court, D. Massachusetts.

July 15, 1938.

Harvey & Mulcare, of Springfield, Mass., for plaintiff.

Raymond D. Houlihan and McClintock, Hoar & Houlihan, all of Springfield, Mass., for defendant.

BREWSTER, District Judge.

This suit in equity was removed to this court. Plaintiff has moved to remand. The ground for the motion is that the requisite jurisdictional amount is not shown. The motion was heard upon pleadings and an affidavit filed on behalf of the defendant.

The facts which appear are that the defendant issued a policy of insurance to plaintiff's assignor, by the terms of which it agreed to pay $100 per month in case of total and permanent disability. The insured, in August, 1933, claimed the benefits of the contract and defendant paid the monthly installments to March, 1936, when it ceased making further payments, claiming that the insured was not totally and permanently disabled.

In the bill of complaint, brought in January, 1937, plaintiff alleges that ten installments, aggregating $1,000, were then due and unpaid. He prays, however, (1) that the debt be established and execution issue; (2) that until further order of the Court the defendant make monthly payments during the period of total and permanent disability; (3) that the defendant waive all premiums during such period; and (4) that defendant be enjoined from cancelling the policy for non-payment of premiums.

The defendant alleges in its petition to remove that if the plaintiff prevails, it will be required to set up against this liability a reserve of over $11,000. If plaintiff is entitled to a decree and it were to be entered now or later, it would require the payment to the plaintiff of over $3,000.

For purposes of jurisdiction, the amount involved must be determined with reference to the situation which existed at the time of the commencement of the suit. Cohn v. Cities Service Co., 2 Cir., 45 F.2d 687; Ford, Bacon & Davis, Inc., v. Volentine, 5 Cir., 64 F.2d 800; Mutual Life Ins. Co. of N. Y. v. Rose, D.C., 294 F. 122.

I am also of the opinion, as plaintiff contends, that the fact that the defendant has set up a reserve of over $11,000 would not affect the value of the subject-matter of the controversy. This conclusion is consistent with decisions in other jurisdictions. Berlin v. Travelers Ins. Co. of Hartford, D. C., 18 F.Supp. 126; Shabotzky v. Massachusetts Mutual Life Ins. Co., D.C., 21 F. Supp. 166; Edelmann v. Travelers Ins. Co. of Hartford, D.C., 21 F.Supp. 209. Contra Enzor v. Jefferson Standard Life Ins. Co., D.C., 14 F.Supp. 677.

There is nothing in the pleadings to indicate that the plaintiff can rely upon a repudiation or anticipatory breach of the contract of insurance. New York Life Ins. Co. v. Viglas, 297 U.S. 672, 56 S.Ct. 615, 80 L. Ed. 971.

It follows, therefore, that if this were an action at law, plaintiff's motion would have to be allowed. The motion, however, involves not a law action, where recovery would be limited to installments due at the time of suit, but rather a suit in equity where the amount of the judgment and execution demanded was not definitely fixed and was bound to exceed the $1,000 due at the time of suit. Furthermore, plaintiff seeks an injunction against cancellation of the policy for non-payment of premiums, thus...