United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO REMAND
KAYS, CHIEF JUDGE.
suit concerns the underinsured coverage of insurance policies
issued to Plaintiff Ricky Greer (“Plaintiff”) by
Defendants Progressive Northwestern Insurance Company
(“Progressive Northwestern”) and Progressive
Casualty Insurance Company (“Progressive
Casualty”). Plaintiff had three separate insurance
policies: one with Progressive Northwestern for a 2015 Harley
Davidson Motorcycle (“Harley Policy”); one with
Progressive Casualty for a 1993 Chevrolet C3500 (“Chevy
Policy”); and another with Progressive Casualty for a
1990 Mazda Miata (“Mazda Policy”). All three
policies contained underinsured motorist (“UIM”)
August 2, 2015, Plaintiff was involved in an accident with
another driver while riding his 2015 Harley Davidson
Motorcycle. He claims his damages from the accident exceed
$350, 000. Plaintiff recovered $100, 000 from the other
driver's insurance company, and demanded payment from his
own insurance providers pursuant to his UIM coverage.
Defendants denied Plaintiff's claims under each of the
then filed this action in the Circuit Court of Jackson
County, Missouri, seeking payment of his UIM benefits and
asserting a claim for vexatious refusal to pay under Missouri
Revised Statute § 375.420. Defendants timely removed
this action to the federal district court by invoking the
Court's diversity jurisdiction.
before the Court is Plaintiff's Motion to Remand (Doc. 7)
asserting Defendants should be deemed citizens of Missouri.
And, as citizens of Missouri, the parties are not diverse and
the Court lacks jurisdiction over this matter. For the
reasons set forth below, Plaintiff's motion is DENIED.
falls within the court's original diversity jurisdiction
if the parties are citizens of different states and the
amount in controversy exceeds $75, 000, exclusive of interest
and costs. 28 U.S.C. § 1332(a). Typically, a corporation
is “deemed a citizen of every State . . . by which it
has been incorporated and of the State . . . where it has its
principal place of business.” Id. §
1332(c)(1). Here, it is undisputed that: (1) Plaintiff was a
citizen of Missouri at the time this cause of action arose,
Pet. ¶ 2 (Doc. 2-1); (2) Defendants Progressive
Northwestern and Progressive Casualty are Ohio corporations
with their principle place of business in Ohio, Pet.
¶¶ 3-4; and (3) the amount in controversy exceeds
$75, 000, see Pet. ¶¶ 21, 23. Under these
facts, diversity jurisdiction exists.
Plaintiff argues that Defendants should be considered
citizens of Missouri under the “direct action”
provision of § 1332, thus defeating the Court's
diversity jurisdiction. In a “direct action against the
insurer of a policy or contract of liability insurance,
whether incorporated or unincorporated, to which action the
insured is not joined as a party-defendant, such insurer
shall be deemed a citizen of every State . . . of which the
insured is a citizen.” 28 U.S.C. § 1332(c)(1)(A)
(emphasis added). This provision “was primarily
intended to eliminate the use of diversity jurisdiction to
gain entry into [federal court] to sue in tort under [a]
state's direct action statute, which allows an injured
party to sue directly the insurer of a tortfeasor without
joining the tortfeasor himself as a defendant.”
Home Indem. Co. v. Moore, 499 F.2d 1202, 1205 (8th
Cir. 1974). The provision “‘is applicable when
the insurer stands in the shoes of its legally responsible
insured, but the provis[ion] does not affect suits against
the insurer based on its independent wrongs: such as actions
brought against the insurer by the insured for failure to pay
policy benefits.'” Webb v. State Farm Mut. Auto
Ins. Co., No. 4:07-CV-0094-ODS, 2007 WL 1030473, at *1
(W.D. Mo. Mar. 29, 2007) (quoting Rosa v. Allstate Ins.
Co., 981 F.2d 669, 675 (2d Cir. 1992)) (internal
Plaintiff is suing his own insurance companies-not the
insurance companies of a third party-for failure to pay UIM
benefits and vexatious refusal to pay. Thus, this does not
constitute a “direct action” under 28 U.S.C.
§ 1332(c)(1), and Defendants will not be deemed citizens
of Missouri. See, e.g., Chinnock v. Safeco Nat.
Ins. Co., No. 10-04105-CV-W-FJG, 2010 WL 2803056, at *3
(W.D. Mo. July 15, 2010) (“In cases in which a
plaintiff is suing her own insurance company, courts in
Missouri and the Eighth Circuit have found that these suits
do not constitute ‘direct actions.'”).
diversity jurisdiction exists and Plaintiff's Motion to
Remand (Doc. 7) is DENIED. Plaintiff's request for
attorney's fees is also DENIED. See Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005)
(“Absent unusual circumstances, courts may award
attorney's fees under [28 U.S.C.] § 1447(c) only