Vachon v. Travelers Home & Marine Ins. Co.

• Citation: 20 F.4th 1343
• Decision Date: 14 December 2021
• Docket Number: No. 20-12765,20-12765
• Parties: Darryl A. VACHON, Plaintiff-Appellee, v. TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

20 F.4th 1343

Darryl A. VACHON, Plaintiff-Appellee,

v.TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant-Appellant.

No. 20-12765

United States Court of Appeals, Eleventh Circuit.

Filed: December 14, 2021

Tracy Raffles Gunn, Gunn Appellate Practice, PA, Tampa, FL, Scott Andrew Arthur, Diaco Law, Tampa, FL, Kimble Clark Bouchillon, Saunders Law Group, Bartow, FL, Lee Delton Gunn, IV, Gunn Law Group, PA, Tampa, FL, for Plaintiff-Appellee.

Jack Roy Reiter, GrayRobinson, PA, Miami, FL, for Defendant-Appellant.

Before William Pryor, Chief Judge, Lagoa, Circuit Judge, and Watkins,^* District Judge.

William Pryor, Chief Judge:

This appeal requires us to decide whether we have appellate jurisdiction over an order that remanded a case to state court because of an untimely notice of removal. Because federal law bars us from reviewing orders remanding cases based on a defect in removal, see 28 U.S.C. § 1447(d), we lack jurisdiction. So we dismiss this appeal.

I. BACKGROUND

Darryl Vachon, a citizen of Florida, was involved in a car accident in 2011. After the other driver's insurance did not cover all of Vachon's damages, Vachon sought to recover the balance from Travelers Home and Marine Insurance Company, his provider of "uninsured/underinsured" insurance coverage. Travelers refused to pay.

In March 2013, Vachon sued Travelers in a Florida court. Travelers, a citizen of Connecticut, could not remove the action to federal court because Travelers's "maximum coverage exposure under the ... policy it issued was $25,000," which is below the minimum amount in controversy necessary to invoke diversity jurisdiction. See 28 U.S.C. § 1332(a) ("The district courts shall have original [diversity] jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000[.]").

At trial in January 2020, the jury determined that Vachon had incurred $1,022,780 in damages, and the state court awarded Vachon $25,000, the policy maximum. See Nationwide Mut. Fire Ins. Co. v. Voigt , 971 So. 2d 239, 242 (Fla. Dist. Ct. App. 2008) ("[W]hen no dispute exists as to the policy limits ... , the trial court should ... grant an insurer's motion to limit the judgment to the policy limits."). Under Florida law, a plaintiff who recovers from his insurance company in an underinsurance suit may bring a claim against the company for "[n]ot attempting in good faith to settle [the original underinsurance] claim[.]" FLA. STAT. § 624.155(b)(1). As part of this "bad faith" claim, the plaintiff may seek "any damages" reflected in the jury verdict "in excess of the policy limits." Fridman v. Safeco Ins. Co. of Ill. , 185 So. 3d 1214, 1222 (Fla. 2016). In its final judgment, the state court "reserve[d] jurisdiction to determine the Plaintiff's right to amend his Complaint to seek and litigate bad faith damages from the Defendant as a result of [the] jury verdict in excess of policy limits." See id. at 1229 (permitting state courts to retain jurisdiction for that purpose after entering judgment).

In April 2020, Vachon moved to amend his complaint to add a bad faith claim. Travelers argued that the court should require Vachon to file a separate lawsuit to recover additional damages because the company could "los[e] the opportunity to pursue removal" to federal court if Vachon was permitted to amend his complaint. The state court granted Vachon's motion on April 27. The same day, Vachon filed an amended complaint containing a new claim for "[s]tatutory [b]ad [f]aith," and seeking "the total damages suffered by [Vachon]." Because the value of the action now "exceed[ed] the sum or value of $75,000," Travelers removed the lawsuit to federal court on May 26, 2020, based on diversity jurisdiction. 28 U.S.C. § 1332(a) ; see also id. § 1441(a) ("[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction ... may be removed [to federal district court].").

Vachon moved to remand on the ground that removal was untimely because Travelers had not filed its notice of removal within "1 year after commencement of the action" in March 2013. Id. § 1446(c)(1). Travelers responded that the one-year period for removal restarted when Vachon amended his complaint because "a bad faith claim is separate, distinct, and does not exist until the conclusion of an underlying [underinsurance] claim." Travelers also argued that it would violate the Supremacy Clause to permit Vachon to "manipulate[ ] rules of procedure to prevent Travelers from removing an otherwise removable case to federal court."

The district court granted the motion to remand because "[ section] 1446 as drafted" required it to treat the one-year removal period as having run from the date Vachon filed his first complaint in 2013. Travelers timely appealed, and we requested additional briefing about our jurisdiction. See 28 U.S.C. § 1447(d).

II. STANDARD OF REVIEW

"We review our appellate jurisdiction de novo ." Overlook Gardens Props., LLC v. ORIX USA, L.P. , 927 F.3d 1194, 1198 (11th Cir. 2019).

III. DISCUSSION

Travelers argues that it timely removed the case from state court, but we lack jurisdiction to consider that issue in this appeal. "[T]he existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute." Carroll v. United States , 354 U.S. 394, 399, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). Ordinarily, courts of appeals "have jurisdiction of appeals from all final decisions of the district courts." 28 U.S.C. § 1291. An order of remand is a final decision, see In re Bethesda Mem'l Hosp., Inc. , 123 F.3d 1407, 1408 (11th Cir. 1997), but Vachon argues that we lack jurisdiction because Congress has proscribed appellate review of certain orders remanding cases to state court, see 28 U.S.C. § 1447(d).

Section 1447(d) deprives us of jurisdiction over this appeal. It provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Id. Despite the broad statutory language, the Supreme Court has explained that section 1447(d) strips courts of appeals of jurisdiction to review only those orders remanding for one of the two reasons identified in section 1447(c) —"a lack of subject matter jurisdiction or a defect in removal procedure." BP P.L.C. v. Mayor of Balt. , ––– U.S. ––––, 141 S. Ct. 1532, 1541, 209 L.Ed.2d 631 (2021) ; see also 28 U.S.C. § 1447(c). All "other remand orders remain appealable." BP P.L.C. , 141 S. Ct. at 1541. "[U]ntimely removal," the basis of the remand order here, is "precisely the type of removal defect contemplated by [ section] 1447(c)." Things Remembered, Inc. v. Petrarca , 516 U.S. 124, 128, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). So "[s]ection 1447(d) ... compels the conclusion" that we lack jurisdiction over the appeal. Id. And because we lack jurisdiction, we may do no more than "announc[e] the fact and dismiss[ ] the cause." United States v. Amodeo , 916 F.3d 967, 971 (11th Cir. 2019) (quoting Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ).

Travelers agrees that this Court ordinarily has no jurisdiction to consider an appeal from a remand order, but it argues that we have jurisdiction under the so-called "matter of substantive law" exception to subsection (d). Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc. , 179 F.3d 1279, 1286 (11th Cir. 1999) (internal quotation marks omitted). This judge-made exception permits appellate review of a remand order "that determines the substantive issues of the case in a way that is conclusive because it is unreviewable by the state court." Id. It is unclear what aspect of "[t]he judicial Power of the United States," U.S. CONST . art. III, § 1, authorizes us to carve out exceptions to Congress's lawful restriction of our jurisdiction, see Sheldon v. Sill , 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850) ("The political truth is, that the disposal of the judicial power ... belongs to Congress." (internal quotation marks omitted)). But, in any event, the exception is inapplicable.

Travelers contends that the district court determined substantive issues when it "calculat[ed] ... the one-year removal period based entirely upon an interpretation of Florida law as to whether an amended pleading relates back to the filing date of the original claim," but the remand order did not mention the Florida relation-back rules. Instead, the district court adopted the "reasoning and analysis" of decisions that interpreted the phrase "commencement of the action" in section 1446. See Hawkinson v. State Farm Mut. Auto. Ins. Co. , 325 F. Supp. 3d 1293, 1298 (M.D. Fla. 2018) ; Fla. Health Scis. Ctr., Inc. v. Gov't Emps. Ins. Co. , No. 8:17-cv-339-T-36AAS, 2017 WL 3720880, at *6 (M.D. Fla. Aug. 7, 2017). And "there is no reason to believe that the [d]istrict [c]ourt's remand was actually based on th[ese] ... unmentioned" relation-back rules because "it does not appear from the record that [the parties] ever even [addressed]" them in the district court. Powerex Corp. v. Reliant Energy Servs., Inc. , 551 U.S. 224, 235, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007).

Moreover, Travelers has not explained how the findings about the start-date of the removal period will have any effect on the litigation on remand, much less a "conclusive effect upon the state court action." Aquamar , 179 F.3d at 1286 (emphasis added); cf. Glasser v. Amalgamated Workers Union Loc. 88 , 806 F.2d 1539, 1541 (11th Cir. 1986) (concluding that "[t]he appellants’ substantive rights ... [were] not affected" because the state court on remand "c[ould] proceed to hear the case"). "Because the district court's order of remand ... did not resolve any substantive issues," Aquamar , 179 F.3d at 1285, we conclude that the matter of substantive law exception does not apply.

We would lack jurisdiction even if the order contained some determination of...