Moultrop v. Geico General Insurance
858 F. Supp. 2d 1342
S.D. Fla.2012Background
- Moultrops filed state court UM insurance suit against GEICO and original tortfeasor on Dec 22, 2009; Pericles was dismissed later.
- GEICO, a Maryland defendant, insured Moultrops with $50,000 UM coverage; Florida domicile of Moultrops.
- A bad faith claim was added by amended complaint on Aug 26, 2010 after a partial final UM judgment
- UM verdict against GEICO fixed damages at $403,005; net after 10% fault was $362,704.50
- State court entered $50,000 UM limit judgment on Aug 23, 2010; GEICO moved for new trial; appellate mandate affirmed in Jan 2012
- GEICO removed the bad faith claim to federal court on Mar 1, 2012, asserting diversity jurisdiction
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was timely under 28 U.S.C. § 1446(b)'s one-year repose | Moultrops argue removal occurred after more than one year from commencement | GEICO argues the bad faith claim commenced later, resetting repose | Removal untimely; the action commenced in state court in 2009, not reset by later amendments |
| Whether bad faith claim is separable and independent to permit removal under § 1441(c) | Bad faith claim is not separate and independent for diversity removal | Bad faith claim could be separable and independent to allow removal | Not applicable; § 1441(c) does not permit removal based on separable controversy in pure diversity cases |
| Whether 2011 amendment to § 1446(c) affects the case | Amendment inapplicable because action commenced before effective date | ||
| Whether the court lacks subject matter jurisdiction and must remand | Remanded; the action was improvidently removed and lacks federal jurisdiction |
Key Cases Cited
- Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (U.S. Supreme Court 1941) (removal strictly construed in favor of remand)
- University of Southern Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 1999) (removal statutes strictly construed; doubts resolved in favor of remand)
- Pace v. DiGuglielmo, 544 U.S. 408 (U.S. Supreme Court 2005) (commencement for removal purposes tied to state filing date)
- Schorsch v. Hewlett-Packard Co., 417 F.3d 748 (7th Cir. 2005) (commencement and removal timing guidance in multi-claim actions)
- Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla. 2006) (Florida accrual for bad faith relates to underlying contract claim)