Unijax, Inc. v. FACTORY INSURANCE ASSOCIATION, Civ. No. 71-262.
| Decision Date | 08 October 1971 |
| Docket Number | Civ. No. 71-262. |
| Citation | 332 F. Supp. 154 |
| Parties | UNIJAX, INC., a Florida corporation, Plaintiff, v. FACTORY INSURANCE ASSOCIATION, and its member companies, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Rogers, Towers, Bailey, Jones & Gay, Jacksonville, Fla., for plaintiff.
Clausen, Hirsh, Miller & Gorman, Chicago, Ill., Marks, Gray, Conroy & Gibbs, Mathews, Osborne & Ehrlich, Jacksonville, Fla., for defendants.
Defendants, Factory Insurance Association and its forty-nine member insurance companies (these fifty defendants will hereinafter be referred to as "Factory"), none of which is a Florida corporation, removed, in accordance with 28 U.S.C. § 1446, a suit brought by plaintiff, Unijax, Inc., a Florida corporation, in the Circuit Court of Duval County, Florida, against Factory and an individual, William C. Womble, a licensed insurance agent and a Florida resident. The suit was for a fire loss on an insured business operation in Louisiana suffered by plaintiff. Plaintiff now seeks to have the case remanded under 28 U.S.C. § 1441(c). The only issue to be resolved is whether there is a cause of action against the foreign defendant, Factory, "separate and independent" from that stated against the resident individual.
Section 1441(c) states:
"(c) Whenever 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, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction." 28 U.S.C. § 1441(c).
The leading case on the question of what are "separate and independent" claims is a Section 1441(c) case involving an insured loss, American Fire and Casualty Company v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1950), wherein the Supreme Court stated:
"We conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under 1441(c)." 341 U.S. at 14, 71 S.Ct. at 540.
In the Finn case the Court reviewed the propriety of removal from a state court of a claim, as here, for compensation for loss of property. The plaintiff alleged in her complaint that she had bought insurance policies from two foreign companies through their mutual resident agent, who was also responsible for maintaining the insurance. After plaintiff's insured property was destroyed, both insurance companies refused to compensate her for the loss. Plaintiff thereafter alleged that either one or both companies were liable to her under their respective policies, or, in the alternative, the agent and the companies were rendered jointly and severally liable by the conduct of the agent in representing that the insurance was properly maintained.
Holding that plaintiff's pleadings are controlling in determining whether separate and independent claims exist, the Court looked to the complaint therein and observed the following:
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Dailey v. Elicker
...supra, § 8725. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Unijax, Inc. v. Factory Ins. Assoc., 332 F.Supp. 154 (M.D. Fla.1971); Chason Bros., Inc. v. Ins. Co. of N. America, 102 F.Supp. 803 (S.D.N.Y.1952). In such a case the agent owes a duty to......