Smith v. State Farm Ins. Co., Civ. No. 85-0527.

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Writing for the CourtPENCE, Senior
Citation615 F. Supp. 453
PartiesDuane A. SMITH, Plaintiff, v. STATE FARM INSURANCE COMPANY, Defendant.
Docket NumberCiv. No. 85-0527.
Decision Date15 August 1985

615 F. Supp. 453

Duane A. SMITH, Plaintiff,
v.
STATE FARM INSURANCE COMPANY, Defendant.

Civ. No. 85-0527.

United States District Court, D. Hawaii.

August 15, 1985.


615 F. Supp. 454

Gill Park Park & Kim, Gordon Kim, Arthur Y. Park, Honolulu, Hawaii, for plaintiff.

Kobayashi, Watanabe, Sugita & Kawashima, James Kawashima, Randall Y. Yamamoto, Honolulu, Hawaii, for defendant.

DECISION AND ORDER DENYING MOTION TO REMAND

PENCE, Senior District Judge.

Facts

On Sept. 16, 1978, Duane A. Smith was seriously injured when a car crashed in which he was a passenger. The car was driven and owned by Leonard Barbieto. State Farm, Barbieto's no-fault insurer, paid Smith its policy limit of $15,000.

Smith's parents had a no-fault insurance policy with the same insurer, State Farm, on their car. This policy covered Smith up to $50,000. When the Barbieto no-fault policy was exhausted, State Farm paid Smith $35,000 on his parents' policy under the Hawaii no-fault statute, H.R.S. chapter 294. State Farm refused to pay the balance of the policy, $15,000.

Under H.R.S. section 294-5(d), the policy primarily applicable to Smith's medical expenses was that covering the vehicle occupied by the injured person at the time of the accident, or Barbieto's vehicle. In denying Smith's claim for the balance of the policy, State Farm relied on paragraph 4 of the "Conditions" portion of the policy, which provided that policies other than the primary one "shall apply as excess to the extent their respective aggregate limits exceed those of the primary policy." The clause added that "the maximum recovery under all insurance" was the "amount which would have been payable under the provisions of the insurance providing the highest dollar limit...."

On May 14, 1985, Smith sued in state court for a declaratory judgment that State Farm owed him the additional $15,000 on his parents' policy. On June 5, 1985, State Farm filed a petition for removal to this court under 28 U.S.C. sections 1332, 1441, 1446. Before this court today is Smith's motion for remand.

Analysis

Smith advances two grounds to support his argument that the case should be remanded to state court.

I

28 U.S.C. section 1332(c) provides in pertinent part:

For the purpose of this section ... a corporation shall be deemed a citizen of any state by which it has been incorporated and of the state where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance...to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen....

As plaintiff herein, Smith, the insured, is, obviously, not joined as a defendant. Urging that the above quoted language be read

615 F. Supp. 455
literally, he argues that there is no diversity jurisdiction because State Farm should be considered a citizen of the same state as the insured

Smith cites several cases in support of his contention. They are not in point. In none of them did plaintiff sue his own insurance company. For example, in McMurry v. Prudential Property and Casualty Ins. Co., 458 F.Supp. 209 (E.D. Mich.1978), the court held that section 1332(c), supra, applied to no-fault cases because they were direct actions. However, the insured was not the plaintiff. Properly, section 1332(c) applies in third-party tort liability cases, in which the insured is the defendant-tortfeasor, not the plaintiff-victim who is suing his own insurer on a contract theory. Thornton v. Allstate, 492 F.Supp....

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13 practice notes
  • Nautilus Ins. Co. v. RMB Enters., Inc., CIVIL NO. 19-00496 JAO-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • October 28, 2020
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co. , 615 F. Supp. 453, 455 (D. Haw. 1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their resid......
  • Keown v. Tudor Ins. Co., Civil No. 08-00041 JMS/KSC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 30, 2008
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co., 615 F.Supp. 453, 455 (D.Haw.1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their residents......
  • Lemen v. Allstate Ins. Co., Civ. No. 94-00497 ACK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • March 31, 1995
    ...law, Allstate cites two cases, Field v. Liberty Mutual Insur. Co., 769 F.Supp. 1135 (D.Haw.1991) and Smith v. State Farm Insur. Co., 615 F.Supp. 453 (D.Haw.1985), for the proposition that the law of the state where an insurance contract is made governs. However, these decisions concerning s......
  • U.S. Fire Ins. Co. v. Prieto, CIVIL NO. 19-00186 JAO-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 18, 2020
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co., 615 F. Supp. 453, 455 (D. Haw. 1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their reside......
  • Request a trial to view additional results
13 cases
  • Nautilus Ins. Co. v. RMB Enters., Inc., CIVIL NO. 19-00496 JAO-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • October 28, 2020
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co. , 615 F. Supp. 453, 455 (D. Haw. 1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their resid......
  • Keown v. Tudor Ins. Co., Civil No. 08-00041 JMS/KSC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 30, 2008
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co., 615 F.Supp. 453, 455 (D.Haw.1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their residents......
  • Lemen v. Allstate Ins. Co., Civ. No. 94-00497 ACK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • March 31, 1995
    ...law, Allstate cites two cases, Field v. Liberty Mutual Insur. Co., 769 F.Supp. 1135 (D.Haw.1991) and Smith v. State Farm Insur. Co., 615 F.Supp. 453 (D.Haw.1985), for the proposition that the law of the state where an insurance contract is made governs. However, these decisions concerning s......
  • U.S. Fire Ins. Co. v. Prieto, CIVIL NO. 19-00186 JAO-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 18, 2020
    ...the state has shown its interest by significant legislative activity and administrative regulation." Smith v. State Farm Ins. Co., 615 F. Supp. 453, 455 (D. Haw. 1985) (citation omitted). This is because "[t]he states regulate insurance companies for the protection of their reside......
  • Request a trial to view additional results

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