McAfee v. Allstate Ins. Co.
| Decision Date | 29 September 2019 |
| Docket Number | CIVIL ACTION No.: 3:18-CV-300-HTW-LRA |
| Parties | KIMBERLY MCAFEE PLAINTIFF v. ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, WILBUR JORDAN, WILLIAM MALCOLM "MAC" HODGES, d/b/a "ALLSTATE MAC HODGES", and JOHN DOES 1-5 DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THIS COURT is the plaintiff's motion to remand. Plaintiff here is Kimberly McAfee who brings this lawsuit against the defendants herein, namely: Allstate Insurance Company; Allstate Property and Casualty Insurance Company; Wilbur Jordan; and William Malcolm "Mac" Hodges, d/b/a "Allstate Mac Hodges," contending that all of them collectively are liable to her under various theories of liability in connection with the fire loss of her home, when that home was insured under a fire policy issued by defendant Allstate Property and Casualty Insurance Company.
Plaintiff filed this action in state court on March 7, 2018, in the Circuit Court of Lauderdale County, Mississippi. Thereafter, however, Allstate Property and Casualty Insurance Company and Allstate Insurance Company removed this action under Title 28 U.S.C. § 14411 from that state court to this federal forum.
Plaintiff, though, preferring her state forum, pursuant to Title 28 U.S.C. § 1447,2 has submitted her motion for remand. Defendants oppose the motion, contending that this lawsuit belongs here as authorized by diversity subject matter jurisdiction, Title 28 U.S.C. §1332,3 with the proper defendants limited to Allstate Insurance Company and Allstate Property and Casualty Insurance Company. The other defendants, say Allstate Insurance Company and Allstate Property and Casualty Insurance Company, should be dismissed, without prejudice, from this action on theories of fraudulent joinder and fraudulent misjoinder. John Does 1-5, say defendants, are merely fictitious and should not play any role here.
Plaintiff Kimberly McAfee (hereinafter referred to as "McAfee") filed her first amended complaint in the Circuit Court of Lauderdale County, Mississippi, on April 9, 2018. McAfee alleged causes of action for: insurance policy benefits; bad faith failure to pay benefits; bad faith denial of claims; bad faith delay; bad faith investigation; bad faith adjusting/gross negligence; breach of contract; tortious breach of contract; breach of covenant of good faith and fair dealing; negligent infliction of emotional distress; intentional infliction of emotional distress; respondeat superior; waiver; and estoppel.
In her complaint, McAfee named the following defendants: Allstate Insurance Company (hereinafter referred to as "AIC"); Allstate Property and Casualty Insurance Company (hereinafter referred to as "APCIC"); Wilbur Jordan (hereinafter referred to as "Jordan"); and William Malcolm "Mac" Hodges, D/B/A "Allstate Mac Hodges" (hereinafter referred to as "Hodges"). McAfee alleged her causes of action collectively against all named defendants. McAfee also sued John Does 1-5. These are fictitious entities, unidentified, whose presence may be disregarded. Title 28 U.S.C. §1441 (b)(1).4
APCIC and AIC removed, under 28 U.S.C. §1441, the instant lawsuit to this federal forum on May 10, 2018. In their removal papers, APCIC and AIC pled that none of the properly named and joined parties is a citizen of Mississippi. Although Jordan and Hodges are citizens of the State of Mississippi, say APCIC and AIC, their citizenship should be disregarded. Jordan, they say, as insurance adjuster, can incur no personal liability unless plaintiff has submitted evidence of gross negligence, malice or reckless disregard of the rights of the plaintiff and, continue defendants, plaintiff's complaint has not made any such factual allegation. Also, say these defendants, Jordan was, at all times, an agent for a disclosed principal; as a result, he can have no liability for the claims against the company issuing the policy which is the subject of this litigation.
Plaintiff's Complaint, according to APCIC and AIC, also fails to state a claim against Hodges. The allegations against him, defendants contend, are conclusory and are lumped with allegations against all defendants. Furthermore, add defendants, Hodges, as Jordan, would have been an agent for a disclosed principal and can have no liability for that reason, as well. These two defendants, conclude defendants, thus, are fraudulently joined.
On May 23, 2018, McAfee filed her Motion to Remand. [Docket no. 11]. In summary, her motion to remand states that her Complaint establishes a reasonable basis for this court to conclude that a reasonable possibility of recovery exists against both Jordan and Hodges. She contends that her Complaint adequately makes a showing against both Jordan and Hodges of gross negligence, malice or reckless disregard of her rights. She argues that the Allstate defendants rely on an incorrect interpretation of Mississippi law related to the liability of insurance adjusters as agents for a disclosed principal. Plaintiff thereby denies that any defendant has been fraudulently joined or, for that matter, fraudulently misjoined.
This Motion to Remand now before the court, is not the only motion ripe for resolution in this action. Also before this court are the following: Hodges' Motion to Dismiss First Amended Complaint [Docket no. 4]; APCIC's Motion to Dismiss First Amended Complaint or for Judgment on the Pleadings [Docket no. 6]; AIC's Motion to Dismiss First Amended Complaint [Docket no. 8]; McAfee's Motion to Stay Proceedings [Docket no. 13]; McAfee's Motion to Strike Answer to The Complaint's Affirmative Defenses [Docket no. 16]; Jordan's Motion to Dismiss First Amended Complaint [Docket no. 19]; and McAfee's Supplemental Motion to Stay Proceedings [Docket no. 22].
These challenges, the various motions to dismiss and the motion to strike answer, may not be addressed until this court reaches a decision on McAfee's motion to remand. See Int'l Energy Ventures Mgmt., L.L.C. (IEVM) v. United Energy Grp., Ltd., 818 F.3d 193 (5th Cir. 2016) (). Since the motion to remand places this court's jurisdictional embrace of this litigation in question, not only must this court forebear on these other motions, this court additionally should stay discovery or other proceedings unrelatedto the motion to remand, which this court has done. See [Docket no. 11 and Docket no. 15]. See also Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 210 (5th Cir. 2016) (); See also Alviar v. Lillard, 854 F.3d 286 (5th Cir. 2017) () Both Int'l Energy Ventures Mgmt and Alviar involved the respective district court's concurrent ruling on a motion to remand and a motion to dismiss under F.R.C.P. 12(b)(6). The Fifth Circuit Court of Appeals ruled that the non-diverse parties should have been dismissed without prejudice because the court lacked diversity of citizenship subject matter jurisdiction over the misjoined defendants and remanded the cases for the entry of an order reflecting the Fifth Circuit's ruling.
McAfee is an adult female citizen of Lamar County, Mississippi. AIC is an insurance company incorporated in Illinois, with its principal place of business in Illinois. AIC is duly licensed to conduct business in the State of Mississippi. APCIC is an insurance company incorporated in Illinois, with its principal place of business in Illinois. APCIC is duly licensed to conduct business in the State of Mississippi. Jordan is an adult resident of the State of Mississippi and an employee of either AIC or APCIC (McAfee's first amended complaint does not describe further the relationship between Jordan and AIC or APCIC). Hodges is an adult resident of the State of Mississippi and an agent of either AIC or APCIC (again, McAfee's first amended complaint does not further describe the relationship).
This court must "[accept] all well-pleaded facts as true and [view] those facts in the light most favorable to the plaintiff." Jordan v. Flexton, 729 F. App'x 282, 284 (5th Cir. 2018). Accordingly, this court looks at McAfee's first amended complaint for a recitation of the factual basis she alleges for her lawsuit.
McAfee's complaint presents the following alleged factual scenario. McAfee purchased a home5 and insured said home with Allstate6 in December, 2010. McAfee's brother and cousin both resided at the home on a full time basis and McAfee resided at the home on a part-time basis with her daughter.
APCIC issued a homeowner's insurance policy to McAfee with the policy number being 945803352. This policy provided, inter alia, "dwelling protection—with building structure reimbursement extended limits", "other structures protection," "personal property protection - reimbursement provision" and additional living expense. Policy Declarations Page [doc. no. 1-1 p. 25] McAfee made payments to Allstate through the date of the loss.
On June 1, 2017, around or about 4:38 o'clock a.m., the fire department closest to the home received a fire alarm and immediately afterwards dispatched fire vehicles to the home to extinguish the flames which were consuming the house. The fire department, though, was unable to save McAfee's home; it was a total loss. McAfee and her daughter, at the time, allegedly were in Hattiesburg, Mississippi, some 90 miles away, and, reportedly, her brother and cousin were at work at Tyson Food located some distance away...
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