Struble v. Connecticut Mut. Life Ins. Co. of Hartford

• Decision Date: 21 June 1937
• Docket Number: No. 3585.,3585.
• Citation: 20 F. Supp. 779
• Parties: STRUBLE v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD.
• Court: U.S. District Court — Southern District of Florida

20 F. Supp. 779

STRUBLE v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD.

No. 3585.

District Court, S. D. Florida.

June 21, 1937.

Thompson & Aiken, of St. Petersburg, Fla., for plaintiff.

R. W. Shackleford and Shackleford, Ivy, Farrior & Shannon, all of Tampa, Fla., for defendant.

AKERMAN, District Judge.

This action seeks recovery of the defendant of certain disability benefits alleged to be due the plaintiff under three different policies of insurance issued by it to the plaintiff, as well as statutory attorney fees for plaintiff's attorneys. Declaration is in four counts, first three of which seek recovery for the following sums, respectively: $385.00, with interest from February 15, 1933; $350.00, with interest from like date; and $315.00, also with interest from like date. In the fourth count the plaintiff seeks recovery for benefits under all three policies. It therefore appears that the total amount sought to be recovered in this action is $1,050, together with interest on said sum from the 15th day of July, 1936, and also a reasonable attorneys' fee for services rendered by plaintiff's attorneys in the prosecution of this cause.

Defendant within due time filed petition for removal of this action, and on presentation of the petition to the circuit court of Pinellas county the state court refused to enter order of removal, and thereafter transcript of record was duly filed in this court.

Petition for removal discloses diversity of citizenship between the parties and further alleges that the defendant, petitioner, by operation of law, requirements of insurance departments of Connecticut, and in accordance with sound actuarial principles and practices, would be required to set up a reserve in the event the plaintiff should prevail herein and will be required to keep and maintain such a reserve in excess of $3,000, which reserve, together with more particular amounts claimed by the plaintiff, is the true amount of matter in dispute. In addition the petition contains the following allegations: "That the matter and amount in dispute in said suit, exclusive of interest and costs, exceeds the amount or value of $3,000.00."

The plaintiff filed a motion to remand upon the ground that the amount involved was less than $3,000 and also upon the ground that it affirmatively appears from the record that the cause could not have been filed in the first instance in this court.

The allegations of the petition for removal were not traversed.

The sole question here presented is whether or not the allegations of the petition above set forth are sufficient to establish jurisdictional amount within the purview of the statute, Jud.Code § 24(1), 28 U.S.C.A. § 41(1), wherein jurisdiction of this court is defined. Clearly, but for the allegation that the defendant will be required to set up a reserve in excess of $3,000 in the event the plaintiff should prevail herein, jurisdictional amount is not disclosed and the motion should be granted.

At the outset it may be well to point out that the verity of the allegations contained in the petition for removal are supported by affidavit. Plaintiff strenuously contends that the question here presented is necessarily determined in his favor by the announcement of the Fifth Circuit in the case of Wright v. Mutual Life Insurance Company (C.C.A.) 19 F.(2d) 117, and the affirmance of that decision by the Supreme Court of United States in Mutual Life Insurance Company v. Wright, 276 U.S. 602, 48 S.Ct. 323, 72 L.Ed. 726.

I have given careful consideration to these decisions, and in my opinion the holdings therein announced are not here applicable or controlling, for that the instant contention was not there under consideration. In the Wright Case the action was filed in a state court of Alabama seeking recovery of the company of seven monthly installments claimed to be due the beneficiary on a life insurance policy on the theory that the death of the assured was accidental. It appears that the defendant company in the petition for removal merely alleged that the matter in controversy exceeded the jurisdictional amount of $3,000 and there was no allegation whatsoever as to necessity of establishing a reserve. The court, in its opinion, reiterated the unquestioned rule that the collateral effect of a judgment is not the test of jurisdiction.

As I view the question here presented, this principle has no applicability and therefore, in my opinion, the Wright Case is not here controlling.

As to the effect of the allegations contained in the petition with reference to the requirement that defendant establish a reserve, I am impressed with the soundness of the reasoning employed by Judge McDowell in the case of Mutual Life Insurance Company v. Thompson (D.C.) 27 F.(2d) 753, 755:

"However, federal jurisdiction, in a case of this kind, is not necessarily defeated by even an impossibility of arriving at the exact value, or by difficulty in approximating the value, of the object sought by the bill. If this object has a pecuniary value, and if that value could exceed $3,000, the court cannot, on motion to dismiss, refuse to accept as true an allegation that the value of the object sought exceeds the jurisdictional minimum. I am unable to say that the object sought has no pecuniary value. * * *

"Values (in money) of many objects and rights lie in opinion. Except where a market value can be proved, it is a common occurrence for experts to prove values by opinion evidence. Remembering that we are here concerned merely with the existence or non-existence of a value greater than $3,000, I am not able to say that insurance experts cannot, with sufficient accuracy for jurisdictional purposes, approximate the value in money of the object here sought by the bill."

There is, so far as my search has disclosed, no dissenting opinion to the proposition that, where the action is brought on behalf of an insurance company for cancellation of its policy that the reserve which the company must necessarily maintain against liability is to be considered in computing the amount in controversy. In New York Life Insurance Company v. Jensen (D.C.Neb.) 38 F.(2d) 524, a like contention to that here made by the plaintiff was denied, Judge Munger saying: "A motion to dismiss challenges the allegation of the amount involved in this suit. The amount in controversy is alleged to exceed $3,000 exclusive of interest and costs. There is a showing on file that this amount is involved because the amount from which the insurance company seeks relief is $10,974.29, the reserve which the company must maintain against liability under this policy, until it is finally satisfied. The amount in controversy is...