Thorkelson v. Aetna Life Ins. Co.

• Decision Date: 15 September 1934
• Citation: 9 F. Supp. 570
• Parties: THORKELSON v. ÆTNA LIFE INS. CO.
• Court: U.S. District Court — District of Minnesota

9 F. Supp. 570

THORKELSON v. ÆTNA LIFE INS. CO.

District Court, D. Minnesota, Second Division.

September 15, 1934.

Albert Running, of St. James, Minn., and Ellsworth, Clinite, Anderson, Dills & Dahl, of Minneapolis, Minn., for plaintiff.

Cobb, Hoke, Benson, Krause & Faegre, of Minneapolis, Minn., for defendant.

MOLYNEAUX, District Judge.

This matter comes before the court upon the plaintiff's motion to remand.

The case was removed to this court from the District Court of Watonwan county, Minn., on the ground of diversity of citizenship, and that the amount involved exceeds the jurisdictional minimum.

The motion to remand is made on the ground "that this court is without jurisdiction to hear and determine the cause pending, in that the petition of the defendant for order for removal of said cause to this Court, and the record and pleadings on file in said case do not show that the matter in controversy exceeds the sum or value of Three Thousand Dollars ($3,000.00), either at the time of the commencement of said action or that it will exceed said sum at the probable time of the trial of said cause."

The complaint does not state the amount in controversy, but does show that the plaintiff is claiming that the life insurance policy on which the action is based is in full force and effect, and that the defendant is claiming that the policy has lapsed, and the complaint prays, among other things, that this court decree "that the policy is in full force and effect."

The petition for removal alleges, among other things:

"This is an action in which the plaintiff seeks to have reinstated and declared to be in full force and effect a certain life insurance policy numbered N 532758 issued by the defendant on the life of plaintiff, dated on or about the 20th day of August, 1925, and providing a death benefit in the sum of Five Thousand Dollars, and further providing for the payment to plaintiff of the sum of Fifty Dollars ($50.00) per month in the event plaintiff became, before attaining the age of sixty years, totally and permanently disabled by bodily injuries or disease to such an extent as to be thereby prevented from performing any work or conducting any business for compensation or profit, and in the event of such total and permanent disability for the waiver of premium amounting to One Hundred Fifty-six and 50/100 Dollars ($156.50) annually.

"Said policy of insurance lapsed on or about the 1st day of January, 1933, or within thirty-one days thereafter, for non-payment of premiums; that plaintiff claims to have been totally and permanently disabled within the meaning of those words as used in said policy since prior to January 1, 1933.

"If defendant is required to reinstate said policy, or if the court declares said policy to be in full force or effect, defendant will be required to maintain against liability on account of the disability provision in said policy, a reserve in excess of Three Thousand Dollars ($3,000.00) and waive premiums of One Hundred Fifty-six and 50/100 Dollars ($156.50) per year until the death of plaintiff and upon the death of the plaintiff, pay a death benefit in the sum of Five Thousand Dollars, all of which is the amount in controversy in this action."

It thus appears from the petition for removal that the defendant claims that the policy had lapsed at the time of the commencement of this suit and that the amount of the reserve which the defendant will be required to set up and maintain as a reserve against liability on account of the policy and disability provision exceeds $3,000 and defendant would be required to waive an annual premium of $156.50 during every year of plaintiff's life,...