Smith v. General Motors Acceptance Corporation

• Decision Date: 02 November 1970
• Docket Number: Civ. A. No. 18788-3.
• Citation: 324 F. Supp. 105
• Parties: Flennord SMITH et al., Plaintiffs, v. GENERAL MOTORS ACCEPTANCE CORPORATION et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

324 F. Supp. 105

Flennord SMITH et al., Plaintiffs, v. GENERAL MOTORS ACCEPTANCE CORPORATION et al., Defendants.

Civ. A. No. 18788-3.

United States District Court, W. D. Missouri, W. D.

November 2, 1970.

William J. Marsh, and Jay Nigro, for Popham, Popham, Conway, Sweeny & Fremont, Francis L. Roach, for Roach, Roach & Roach, Kansas City, Mo., for plaintiffs.

Courtney W. Perkins, for Meyer, Smith, Bott & Penner, Kansas City, Mo., for G.M.A.C.

Roger W. Penner, for Meyer, Smith, Bott & Penner, Kansas City, Mo., for MIC and CIM.

Robert G. Smith, for Smith & Polsinelli, Kansas City, Mo., for Miller Pontiac.

ORDER REMANDING CAUSE TO CIRCUIT COURT OF JACKSON COUNTY

WILLIAM H. BECKER, Chief Judge.

In Count I of the petition herein filed in the Circuit Court of Jackson County, plaintiffs, who are alleged to be citizens of Missouri, demanded $3,000 in actual damages and $50,000 punitive damages against defendants Motor Insurance Corporation and CIM Insurance Corporation, citizens of New York, and Miller Pontiac Company, a citizen of Missouri, on the allegation that a Pontiac automobile purchased from defendant Miller Pontiac Company and insured by Motor Insurance Corporation and CIM Insurance Corporation had been stolen and damaged beyond repair and defendants refused and failed to repair the automobile or pay the insurance moneys required by the insurance contract. Count II calls for $500 damages for substitute transportation during the time Miller Pontiac Company had the damaged automobile and failed to repair it. Count III is a claim against General Motors Acceptance Corporation, a New York Corporation, for breach of its fiduciary duty as "loss payee" of the foregoing insurance "to so collect such insurance proceeds" of $3,000. Therefore, $3,000 actual damages and $50,000 punitive damages are also asked against defendant General Motors Acceptance Corporation.

On October 26, 1970, defendant General Motors Acceptance Corporation filed its petition for removal of the cause to this Court. Therein, defendant General Motors Acceptance Corporation alleged as follows:

"If sued upon alone, the claim of Count III would be one of which this Court has original jurisdiction as stated in Paragraph 4 above, and which could be removed to this Court by petitioner GMAC by virtue of plaintiff's allegation of breach of fiduciary duty and resulting damage, which is separate and independent of the claims against the Missouri defendant Miller, that is the claims of conspiring to defraud and claim of failure to make timely repair. By virtue of Title 28, U.S.C., Section 1441(c), this entire case is one which may be removed to this Court."

The statute relied on by defendant General Motors Acceptance Corporation, § 1441(c), Title 28, United States Code, provides for the removal of an entire case wherein "a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action." It is well recognized under that statute, however, that when one wrong has resulted to plaintiffs for which a single recovery is sought, the claims of the complaint "cannot constitute a separate and independent claim, no matter how many defendants are said to be liable therefor, or how diverse their basis of liability." Gray v. New Mexico Military Institute (C.A.10) 249 F.2d 28, 30. From the foregoing description of the petition in the state court, it is readily apparent that the claims in Counts I and III do not involve separate and independent claims, but rather the same claim for the $3,000 insurance proceeds which should be paid under the insurance contract and $50,000 punitive damages. This case is therefore like that of American Fire & Casualty Company v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, wherein it was held that a suit against three defendants, one or more of whom might have been responsible for the same fire loss, did not contain separate and independent claims against any single defendant. The single loss here is complained of by plaintiffs as having resulted from an interlocked series of transactions, as in Young Spring & Wire Corporation v. American Guarantee & Liability Ins. Co. (W.D.Mo.) 220 F.Supp. 222. This case is also like that of Winton v. Moore (N.D.Okl.) 288 F. Supp. 470, wherein plaintiff sued Prudential Insurance Company for recovery on the contract of insurance and also its agent for his alleged failure to transmit insurance premiums paid him to the defendant Prudential. In that case the Court concluded that:

"While it is true that Plaintiff states one cause of action in tort, against the

...