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Walker v. New York Marine and General Insurance Co.

United States District Court, W.D. Missouri, Western Division

November 2, 2017

JIMMY D. WALKER, Plaintiff,
v.
NEW YORK MARINE AND GENERAL INSURANCE COMPANY, Defendant.

          ORDER

          NANETTE K. LAUGHREY, United States District Judge

         Plaintiff Jimmy D. Walker moves to remand this case to the Circuit Court of Jackson County, Missouri, from whence defendant New York Marine and General Insurance Company (“New York Marine”) removed it. For the reasons set forth below, the motion is granted.

         I. BACKGROUND

         Plaintiff Walker alleges that in February 2015, while operating a tractor-trailer in Hartley, Texas, he was struck by a tractor driven by an uninsured motorist. Mr. Walker claims to have been “seriously and permanently injured” as the result of the collision. At the time of the collision, Mr. Walker allegedly was insured, under a policy issued to his employer, by defendant New York Marine. Mr. Walker presented to New York Marine a demand to settle his claims for the lesser of either $1 million or the policy limit. Despite Mr. Walker's follow-up efforts, New York Marine did not respond to the settlement demand.

         Mr. Walker subsequently filed suit against New York Marine, alleging breach of the insurance contract and vexatious refusal to pay. His state court petition sought (i) damages in an unspecified amount, (ii) attorneys' fees in the amount of 25% of the verdict, (iii) vexatious damages in the amount of 20% of the first $1, 500 awarded and 15% thereafter, as well as costs.

         After Mr. Walker filed suit, New York Marine's counsel advised him that $50, 000 was the maximum amount of insurance coverage available for Mr. Walker's claims arising from the collision with the uninsured motorist.

         New York Marine removed the case to federal court on the ground of diversity jurisdiction. Mr. Walker now moves for remand of the case to the state court in which it originated.

         II. STANDARD

         A defendant in a state court civil action may, under certain conditions, remove to federal district court a case over which the federal court has original jurisdiction. See 28 U.S.C. § 1441(a). A federal district court has diversity jurisdiction if (i) the amount in controversy exceeds $75, 000, and (ii) the plaintiff's state of citizenship is different from the state of citizenship of the defendant. See 28 U.S.C. § 1332(a). The Court should remand a case “if it appears that [it] lacks subject matter jurisdiction.” In re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010) (citing 28 U.S.C. § 1447(c)).

         As the party seeking to remove the case, New York Marine “has the burden to establish federal subject matter jurisdiction . . . .” Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1192 (8th Cir. 2015) (quotation marks and citation omitted). Where the complaint does not allege a specific amount of damages, the removing party “must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000.” McCord v. Minn. Mut. Life Ins. Co., 346 F.3d 830, 834 (8th Cir. 2003). The pertinent question is not whether the damages will exceed the jurisdictional amount, but whether a fact-finder might legally find that they would. See Bell v. Hershey Co., 557 F.3d 953, 959 (8th Cir. 2009).

         Any doubt concerning whether the Court has jurisdiction “must be resolved in favor of remand.” Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).

         III. DISCUSSION

         Mr. Walker argues that removal was improper because this case does not meet the amount-in-controversy requirement. New York Marine contends that the following facts establish that Mr. Walker seeks more than the threshold amount of $75, 000:

. On May 10, 2017, and again on August 18, 2017, Mr. Walker made a verbal settlement demand of $ 1 ...

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