Safranek v. Nat'l Gen. Ins. Co.
| Decision Date | 25 February 2021 |
| Docket Number | CIVIL ACTION NO. 20-198-BAJ-EWD |
| Parties | BRUCE DAVID ANDREW SAFRANEK, ET AL. v. NATIONAL GENERAL INSURANCE COMPANY, ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
Please take notice that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on February 25, 2021.
/s/_________
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
Before the Court is the Motion to Remand (the "Motion"), filed by Plaintiffs, Bruce David Andrew Safranek ("Safranek") and Darci Felder Safranek, individually and on behalf of their minor children, Evan Riley Safranek and Elise Noel Safranek (collectively, "Plaintiffs").1 The Motion is opposed.2 As removal was timely, the requirements of the Class Action Fairness Act of 2005 (28 U.S.C. §1711, et seq. ("CAFA")), are met, and the CAFA abstention exceptions are inapplicable, it is recommended3 that the Motion be denied and this matter be referred for a scheduling conference.4
On February 12, 2018, Plaintiffs filed their original Petition for Damages ("Petition") against National General Insurance Company ("National General"), Imperial Fire & Casualty Insurance Company ("Imperial Fire"); USAA Casualty Insurance Company ("USAA"); and Melvin Green ("Green") (collectively, "Defendants") in the Nineteenth Judicial District Court forthe Parish of East Baton Rouge, State of Louisiana.5 In the Petition, Plaintiffs allege that, on May 25, 2017, Safranek was driving on Burbank Drive in East Baton Rouge Parish, Louisiana when his vehicle was struck by the vehicle owned by Green, and operated by Green or someone authorized by Green, who did not stop but fled the scene (the "Accident").6 Plaintiffs contend that the Accident was caused by the negligence of Green or the unknown authorized operator of the car and caused Safranek to suffer personal injuries to his neck, upper back, right shoulder and right arm. Safranek sought damages for past, present, and future medical expenses, lost wages and loss of earning capacity, mental and physical pain and suffering, residual disability, mental anguish and loss of enjoyment of life.7 The other Plaintiffs sought damages for their loss of consortium, services, and society.8 Plaintiffs also named as defendants National General and Imperial Fire, Green's liability insurance carriers, and USAA as Plaintiffs' uninsured/underinsured motorist ("UM") carrier.9
On January 8, 2019, Plaintiffs emailed USAA. In that email, Plaintiffs advised that they had reached a settlement with Imperial Fire and made a demand for the UM policy limits ($50,000 per person).10 Plaintiffs entered into a Receipt and Release ("Release") on February 21, 2019,11 and on May 2, 2019, a "Joint Motion To Dismiss With Prejudice and Reservation of Rights" was filed in state court, seeking dismissal only of Plaintiffs' claims against National General and Imperial Fire. Plaintiffs reserved Plaintiffs' claims against Green "to the extent he has other applicable insurance, it being agreed that Melvin Green should remain a 'nominal defendant' only and will never have any personal liability above other available and collectable liability insurancecoverage."12 The Motion to Dismiss with Prejudice was granted by the state court on May 15, 2019.13
In the interim, Plaintiffs filed four additional petitions. The First through Third Supplemental and Amending Petitions assert claims for statutory bad faith damages against USAA for, inter-alia, USAA's failure to tender amounts under Plaintiffs' UM policy, for USAA's assertion of a lien on the settlement proceeds paid to Plaintiffs, and for USAA's misrepresentation of facts and policy provisions regarding "hit-and-run" accidents.14 On January 21, 2020, Plaintiffs filed a motion for leave to file their Fourth Supplemental and Amending Petition for Class Certification ("Class Petition"), which asserted class claims pursuant to La. C.C.P. art. 591 based on the allegation that USAA engaged in misinterpretations of the hit-and-run terms of its policies15 and defined the proposed class as follows:
...the class is defined objectively as all purchasers of USAA uninsured motor vehicle insurance polices for the last ten years who opened a "hit-and-run" motor vehicle claim which was denied based on USAA's representation that the offending vehicle was not a hit-and-run vehicle.16
Likewise, Plaintiffs sought an order certifying the following class in the motion for class certification:
...all persons who purchased a UM Policy with USAA, were involved in a "hit and run accident" over the last ten years, and were denied coverage on USAA's representation that and (sic) uninsured motor vehicle did not include a "hit-and-run" vehicle.17
Further, Plaintiffs alleged that USAA misrepresented the hit-and-run terms of its UM policies to "hundreds, if not thousands" of its insureds, along with Plaintiffs. Regarding the size of the class, Plaintiffs cited data indicating that 20,555 hit and run accidents occurred in Louisiana from 2014 through 2018, and USAA had a 5.46% market share of insurance. Thus, Plaintiffs alleged that USAA likely handled 1,122 hit-and-run accidents over that five year period, and likely handled more than 2,000 such accidents over the corresponding ten year period.18 The state court heard argument on the motion for leave to file the Class Petition and granted it on March 2, 2020.19
On April 1, 2020, and in response to the state court's granting of Plaintiffs' motion for leave to file the Class Petition, USAA removed the matter to this Court on the basis of CAFA, 28 U.S.C. § 1332(d) and 28 U.S.C. § 1453.20
In the Notice of Removal, USAA alleged that CAFA's 100-member class size requirement was met because the Class Petition alleged USAA "handled 1,122 'hit-and-run' claims in the last five years"...and likely handled more than 2,000" hit-and-run claims over the past ten years;21 CAFA's minimal diversity requirement was met, as Plaintiffs are Louisiana citizens and USAA, a reciprocal inter-insurance exchange and unincorporated association, is deemed a Texas citizenpursuant to 28 U.S.C. 1332(d)(10) due to its Texas place of incorporation and principal place of business;22 and CAFA's five million dollar amount in controversy was met, as Plaintiffs seek statutory attorney's fees and, "[g]iven Plaintiff's alleged minimum of 1,122 putative class members and USAA CIC's average Uninsured Motorist Coverage payment, there is more than $10,000,000 in controversy (1,122 x $9,960 = $10,741,920)."23
On May 1, 2020, Plaintiffs filed the instant Motion, asserting that remand is appropriate on several grounds, including because the removal is untimely and fails to meet the CAFA amount in controversy requirement. Alternatively, Plaintiffs assert that this Court is required to abstain from exercising jurisdiction due to CAFA's "home state" and/or "local controversy" exceptions at 28 U.S.C. § 1332(d)(4), or that this Court should sever and remand Plaintiffs' individual claims.24
CAFA gives federal courts jurisdiction over certain class actions, defined in § 1332(d)(1),25 if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million.26 A defendant may remove class actions arising under CAFApursuant to 28 U.S.C. § 1453.27 Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint.28 While the general removal statute, 28 U.S.C. § 1441, is strictly construed and doubts as to the propriety of removal should be resolved in favor of remand,29 "no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court."30 Still, the removing party has the burden of proving CAFA jurisdiction.31 Remand is proper if at any time the court lacks subject matter jurisdiction.32
The time limits for filing a notice of removal, provided in the removal procedure rules of 28 U.S.C. § 1446(b) (as invoked by § 1453),33 are as follows:
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
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(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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.
With regard to triggering the 30-day time period from the defendant's receipt of the initial pleading, as provided in § 1446(b)(1), the Fifth Circuit has provided a bright line rule that "the thirty-day removal period under the first paragraph is...
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