Spencer v. Harris

• Decision Date: 26 April 2005
• Docket Number: No. Civ.A.2:04-0850.,Civ.A.2:04-0850.
• Citation: 394 F.Supp.2d 840
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Betty A. SPENCER and Curlie C. Spencer, her husband Plaintiffs v. Sylvester Lee HARRIS and State Farm Mutual Automobile Insurance Company Defendants.

394 F.Supp.2d 840

Betty A. SPENCER and Curlie C. Spencer, her husband Plaintiffs v. Sylvester Lee HARRIS and State Farm Mutual Automobile Insurance Company Defendants.

No. Civ.A.2:04-0850.

United States District Court, S.D. West Virginia, at Charleston.

April 26, 2005.

Patrick K. Maroney, Charleston, WV, for Plaintiffs.

Laura L. Gray, R. Carter Elkins, W. Joseph Bronosky, Huntington, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

COPENHAVER, District Judge.

Pending before the court is the motion of the plaintiffs Betty A. Spencer and Curlie C. Spencer, filed September 9, 2004, seeking to remand the above-captioned action to the Circuit Court of Kanawha County, West Virginia. On March 16, 2005, plaintiffs filed a supplemental motion to remand, reiterating their prior positions and attaching as an exhibit the deposition of defendant Sylvester Lee Harris.

I.

This action arises from a single vehicle accident that occurred in the cross walk of Washington Street at its intersection with Capitol Street in Charleston, West Virginia, on August 26, 2002. According to the complaint, the defendant Sylvester Lee Harris, while operating his motor vehicle, struck plaintiff Betty A. Spencer, a pedestrian, in that cross walk.¹ As a result of the accident, Mrs. Spencer claims she has suffered serious and permanent injuries.

At some point prior to the date of the accident, Harris was insured through an automobile insurance policy purchased from Oak Casualty Insurance Company ("Oak Casualty"). Compl. at ¶ 6. On September 6, 2002, in response to plaintiffs' inquiry, Oak Casualty notified the plaintiffs that Harris's policy had expired on August 7, 2002.² On September 11, 2002 the plaintiffs notified their insurance company, the defendant State Farm Mutual Automobile Insurance Company ("State Farm") that Harris was not insured. In that notice, plaintiffs asserted a claim for uninsured motorist benefits under their automobile insurance policy. Specifically, in his September 11, 2002, letter to State Farm, plaintiffs' counsel wrote "[b]y this letter, you are being put on notice of an uninsured claim against Mrs. Spencer's automobile policy...." Def.'s Resp. at Ex. B.

On July 9, 2004, the plaintiffs commenced this action in the Circuit Court of Kanawha County, West Virginia, against the defendants Harris and State Farm. Plaintiffs claim that Harris negligently operated his motor vehicle and that their injuries (Mrs. Spencer's personal injuries and Mr. Spencer's economic and loss of consortium injuries) were the direct and proximate result of Harris's negligence. The plaintiffs further claim that State Farm violated the West Virginia Unfair Trade Practices Act, W. Va.Code §§ 33-11-1, et seq. ("UTPA"), by failing to negotiate in good faith to effect a prompt, fair and equitable settlement of plaintiffs' claim after liability became reasonably clear.

That same day, July 9, 2004, a summons was issued for State Farm. On July 15, 2004, service of the summons and complaint was accepted on behalf of State Farm by the West Virginia Secretary of State. The action was removed by State Farm to the court on August 11, 2004.

As its basis for removal, State Farm contends that the court has diversity jurisdiction. Although conceding Harris is a resident of West Virginia, State Farm asserts Harris is a nominal party whose citizenship may be disregarded for purposes of determining jurisdiction. Pursuant to W. Va.Code § 33-6-31(d), State Farm thereafter appeared in its own name to answer the allegations of the complaint.

Subsequent to removal, plaintiffs filed a one-page motion to amend on September 7, 2004, seeking to join Oak Casualty and the West Virginia Insurance Guaranty Association as party defendants. Plaintiffs contend that those entities are indispensable parties to this action.³ Their motion is unaccompanied by a supporting memorandum of law or a proposed amended complaint.

On September 9, 2004, plaintiffs filed their motion to remand, contending that the action was improperly removed inasmuch as Harris is a resident of West Virginia, did not consent to removal and is not a nominal party. In the alternative, the plaintiffs state that the addition of the non-diverse party, West Virginia Insurance Guaranty Association, divests the court of diversity jurisdiction.

On September 29, 2004, a summons was issued for Harris. The record further indicates that service of the summons and complaint was effected upon Harris on November 1, 2004. Pursuant to a subpoena issued by plaintiffs, Harris was deposed on February 23, 2005. Harris, however, has not appeared, retained an attorney or filed a responsive pleading.

II.

"A defendant may remove any action from a state court to a federal court if the case could have originally been brought in federal court." Yarnevic v. Brink's, Inc., 102 F.3d 753, 754 (4th Cir.1996) (citing 28 U.S.C. § 1441). The district courts have original jurisdiction in cases between citizens of different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Where a case is removed from state court, diversity of citizenship "must be established at the time of the removal." Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.1988).

"The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). Because removal jurisdiction raises significant federalism concerns, a district court must strictly construe removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). If federal jurisdiction is doubtful, remand is necessary. Mulcahey, 29 F.3d at 151 (citing In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8^th Cir.1993)). The defendant bears the burden of demonstrating federal jurisdiction under the preponderance of evidence standard. Landmark Corp. v. Apogee Coal Co., 945 F.Supp. 932, 935, n. 2 (S.D.W.Va.1996).

A motion to remand is a threshold test of the court's jurisdiction and is measured from the allegations of the complaint at the time of removal. Plaintiffs have sought to amend their complaint by adding Oak Casualty and West Virginia Insurance Guaranty Association as defendants. Those entities were not parties to this action at the time of removal and their citizenship is not relevant to the initial remand determination.

As noted, State Farm does not dispute Harris's residency in the State of West Virginia. Rather, it contends that Harris is a nominal party and aptly notes that if Harris is a nominal party neither his citizenship nor the matter of his consent is relevant to the court's determination. The sole dispositive issue relevant to the motion to remand is whether Harris is a nominal party.

"[A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy." Navarro Savings Assoc. v. Lee, Jr., 446 U.S. 458, 460-61, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). "Nominal parties are generally those without a real interest in the litigation." Bumberger v. Insurance Co. of N.A., 952 F.2d 764, 767 (3rd Cir.1991). The Fourth Circuit has stated that "in diversity cases the general rule is that citizenship of the real parties in interest is determinative for purposes of diversity jurisdiction." Roche v. Lincoln Property Co., 373 F.3d 610, 615 (4th Cir.2004). This court has noted that:

The requirement that diversity is based only upon the citizenship of real and substantial parties to the controversy parallels, but is not identical to, the requirement of Rule 17(a) of the Federal Rules of Civil Procedure that an action must be prosecuted by the real party in interest. Under, Rule 17(a), in a diversity action, the procedural "real party in interest" is the party granted a cause of action under substantive state law. By contrast, for purposes of determining diversity of citizenship, a `real party in interest' is one who has a "`substantial stake' in the outcome of the case."

State of West Virginia v. Morgan Stanley & Co. Inc., 747 F.Supp. 332, 336-37 (S.D.W.Va.1990) (internal citations omitted).

A claim for uninsured motorist benefits is governed by W. Va.Code § 33-6-31(d) which provides that:

Any insured intending to rely on the [uninsured or underinsured motorist] coverage required by subsection (b) of this section shall, if any action be instituted against the owner or operator of an uninsured or underinsured motor vehicle, cause a copy of the summons and a copy of the complaint to be served upon the insurance company issuing the policy, in the manner prescribed by law, as though such insurance company were a named defendant; such company shall thereafter have the right to file pleadings and to take other action allowable by law in the name of the owner, or operator, or both, of the uninsured or underinsured motor vehicle or in its own name.

Nothing in this subsection shall prevent such owner or operator from employing counsel of his or her own choice and taking any action in his or her own interest in connection with such proceeding.

Id.

Section 33-6-31(d) defines the rights of a carrier when an uninsured or underinsured tortfeasor is sued by the policyholder. Syl. Pt. 3, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (1993). Although a claim for uninsured motorist benefits is a first-party claim, § 33-6-31 generally does not provide a direct cause of action against the uninsured or underinsured motorist carrier. Syl. Pt. 2, Postlethwait v. Boston Old Colony Ins. Co., 189 W.Va. 532, 432 S.E.2d 802 (1993). This section is "primarily designed to enable the carrier to raise policy defenses it may have against the plaintiff under its uninsured or underinsured policy." Syl. Pt. 4, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (1993). However, an uninsured motorist carrier is...