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Progressive Casualty Insurance Co. v. Bowers

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

June 15, 2018

PROGRESSIVE CASUALTY INSURANCE COMPANY, et al., Plaintiffs,
v.
JASON BOWERS, et al., Defendants.

          ORDER AND OPINION GRANTING DEFENDANTS' MOTIONS TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE

         Currently pending are four motions to dismiss filed by Defendants. Docs. #9-12. For the following reasons, Defendants' motions are granted.

         I. BACKGROUND

         Jason Bowers was injured in April 2015 while he was a passenger on an all-terrain vehicle (“ATV”) driven by his wife, Samantha Bowers. Doc. #1, ¶¶ 8, 11. Neither Jason Bowers nor Samantha Bowers owned the ATV. Id., ¶ 12. In October 2017, counsel for Mr. Bowers sent a letter to Progressive Insurance Company[1] stating Mr. Bowers sustained bodily injuries during the accident. Doc. #1-1. Counsel indicated Mr. Bowers had uninsured motorist coverage of $25, 000 through Progressive, and “will settle his uninsured motorist claims against Progressive for the total available uninsured motorist coverage.” Id. Mrs. Bowers has not made a claim. Doc. #1, ¶ 10.

         Progressive Casualty Insurance Company (“Progressive Casualty) issued a Commercial Auto Policy (“commercial policy”) to Mr. Bowers and Perfect Landscaping & Construction, LLC, with a policy period of August 20, 2014, to August 20, 2015. Doc. #1-2. According to Progressive Casualty, Mr. Bowers has made a claim for uninsured motorist coverage under the commercial policy, but has not made a claim for bodily injury under the commercial policy. Doc. #1, ¶¶ 9, 21, 30.

         Progressive Advanced Insurance Company (“Progressive Advanced”) issued a Direct Auto Policy (“personal policy”) to Mr. Bowers with a policy period of January 26, 2015, to July 26, 2015. Doc. #1-3. According to Progressive Advanced, Mr. Bowers has made a claim for uninsured motorist coverage under the personal policy, but has not made a claim for bodily injury under the personal policy. Doc. #1, ¶¶ 35, 40.

         On March 28, 2018, Progressive Casualty and Progressive Advanced filed this declaratory judgment action against Mr. Bowers, Mrs. Bowers, and Perfect Landscaping. Plaintiffs seek an order declaring the two insurance policies do not provide coverage for any claims made by Jason Bowers. Plaintiffs maintain this Court has diversity jurisdiction because the parties are citizens of different states, and the amount in controversy exceeds $75, 000.

         On April 19, 2018, Defendants filed four motions to dismiss. Mr. and Mrs. Bowers filed a motion to dismiss Progressive Casualty's claims (Doc. #9), and a motion to dismiss Progressive Advanced's claims (Doc. #10). Perfect Landscaping filed two motions to dismiss, incorporating by reference the arguments set forth by Mr. and Mrs. Bowers in their motions. Doc. #11-12. Defendants argue the Court lacks subject matter jurisdiction, and this matter must be dismissed.

         II. DISCUSSION

         The party invoking federal jurisdiction bears the burden of demonstrating jurisdiction exists. See Iowa League of Cities v. E.P.A., 711 F.3d 844, 870 (8th Cir. 2013). To invoke diversity jurisdiction, the parties must be citizens of different states and the amount in controversy must exceed $75, 000. 28 U.S.C. § 1332(a). Plaintiffs allege this matter involves citizens of different states, and the amount in controversy exceeds $75, 000. Defendants argue complete diversity of citizenship does not exist, and the amount in controversy does not exceed $75, 000.

         A. Diversity of Citizenship

         “Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship.” OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citation omitted). Plaintiffs allege (and Defendants do not dispute) Mr. and Mrs. Bowers are citizens of Missouri. Doc. #1, ¶¶ 4-5; Doc. #9, at 4: Doc. #10, at 4. Plaintiffs contend Perfect Landscaping is a “Missouri Limited Liability Corporation and is a resident of the State of Missouri.” Id., ¶ 3. For a limited liability company, this is not the proper test for citizenship. See OnePoint Sols., 486 F.3d at 346 (stating “[a]n LLC's citizenship, for purposes of diversity jurisdiction, is the citizenship of each of its members.”). Plaintiffs did not identify the member(s) of Perfect Landscaping, and consequently, also failed to identify the citizenship of the member(s). However, in their motions to dismiss, Defendants state they are all Missouri citizens. Doc. #9, at 4; Doc. #10, at 4.[2]

         Plaintiffs allege they are citizens of Ohio because their corporations are organized under the laws of Ohio, and their principal place(s) of business are located in Ohio. Doc. #1, ¶¶ 1-2. Defendants does not dispute these allegations. But Defendants argue Plaintiffs, as out-of-state insurance companies doing business in Missouri, are also considered citizens of Missouri because the insureds are Missouri citizens. Plaintiff cites 28 U.S.C. § 1332, which, in relevant part, is as follows:

[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal business, except that in any 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 to be a citizen of (A) every State and foreign state of which the insured is a citizen; (B) every State and foreign state by ...

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