Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA FRANCES CALDWELL CIVIL ACTION VERSUS NO.
STATE FARM FIRE & CASUALTY SECTION ʺ C ʺ (1) COMPANY, ET AL
ORDER AND REASONS
comes before on motion remand by plaintiff,
Frances Caldwell a/k/a Frances Cadwell (“Cadwell”). Having considered record, memoranda counsel law, determined remand appropriate following reasons.
The plaintiff’s claims concern unpaid hurricane damage made a homeowner’s policy issued defendant State Farm Fire Casualty Company (“State Farm”) regarding plaintiff’s Tammany, Louisiana, property. claims State Farm Linda (“Collins”) had contacted within the last “regarding the limits, scope coverage regarding hurricane damage, and within the last three (3) years has made and/or requested changes,” and that Collins failed properly advise as to the option purchasing excess flood potential noncoverage hurricane damages, and that agent failed procure adequate coverage flood damage, hurricane damages failed advise adequacy flood coverage. (Pet. ¶ XVII ‐ XVIII).
This removed basis under Multiparty, Multiforum Trial Jurisdiction Act, U.S.C. § 1369 § 1441(e)(1) (“MMTJA”) and diversity. ruled MMTJA apply Hurricane Katrina cases one. Fidelity Homestead Assn. v. Hanover Insurance Co., F.Supp.2d (E.D.La. 2006). It also agrees Judge Duval’s subsequent analysis requisite deaths occur a discrete location. Case ANPAC Louisiana Co., WL Therefore, removal MMTJA improper. also argues Collins, non diverse defendant, was fraudulently joined order defeat removal. “The burden persuasion placed upon those who cry `fraudulent (improper) joinder ʹ indeed heavy one. ʺ B., Inc. Miller Brewing (5th Cir. 1981). removing party must demonstrate that possibility plaintiffs would able establish cause against non diverse defendants state court. Ford Elsbury, (5th “stated differently means there no reasonable basis district court to predict might be able to recover against an in ‐ state defendant..” Smallwood Illinois Central Railroad F.3d (5 th Cir. 2004)(en banc). See also Melder Allstate Corp, 328,330 (5 th 2005)(“”[A]t issue whether Defendants established reasonable basis Plaintiffs might be able to recover Louisiana state law against non ‐ diverse defendant ...” A “mere theoretical possibility recovery” preclude a finding of Smallwood 572. Court’s “prediction” resolved in two ways: (1) undertaking a Rule 12(b)(6) type analysis to determine complaint states a claim in ‐ state defendant (2) where a stated but misstated omitted discrete facts determinative propriety joinder, minimal piercing pleadings may be undertaken; “we caution summary inquiry appropriate only identify presence discrete undisputed facts would preclude plaintiff’s recovery against state defendant.” Id. “[T]he inability make requisite decision a summary manner itself points inability removing party carry its burden.” Id.
Under Louisiana law, general duty use reasonable diligence attempting place requested promptly notify client if he has failed obtain the insurance requested. Southern Athletic Club,LLC v. Hanover Ins. Co., 2006 WL 2583406 *4 (citing Karam v. St. Paul Fire Marine Ins. Co., 281 So.2d. 728, 730 31 (La. 1973)). If agent’s actions warrant the client’s assumption he has the desired insurance coverage, client may recover any loss sustained result the agent’s breach his duty procure coverage. Id. However, an insurance agent’s duty greater than merely procuring insurance requested, depending on what services agent holds himself out performing and nature specific relationship agreements between agent and his client. Id. (citing Graves Farm Mut. Auto Ins. Co., So.2d 773, 2002 1243 (La. Ct. App. 06/26/02)). On other hand, it unreasonable assume obligated procure insurance the client requested. Dooley Wright, So.2d (La. App. 1987), writ denied, So.2d (La. ruled scope fiduciary duty owed insurance agent.
Fidelity supra; Three X, L.L.C. Lexington WL finds plaintiffs stated against regard advice procurement subject purposes
Under La. Rev. Stat. 9:5606A:
No damages any agent, broker, solicitor, or other similar licensee state, based upon tort, breach of contract, otherwise, arising out engagement provide insurance services shall be brought unless filed in court of competent and proper venue within one year from date alleged act, omission, or neglect, or within one year from date that alleged act, omission, or neglect discovered or should discovered. However, even as to actions filed within one from date such discovery, all events actions shall be at latest within three years from date the alleged act, omission, or neglect. previously recognized renewals policies do not
automatically restart preemption, but renewals can constitute separate conduct, if they are separate distinct acts which give rise immediately apparent damages. Giardina v. Allstate WL The relevant inquiry whether renewal construed as act separate from initial policy procurement. Id.
State argues any Collins prescribed preempted. It provides affidavit from which states Collins had advised her homeowner’s policy did not cover flood damage, contacted concerning flood 2002. The affidavit does not provide facts as contact with regard to homeowner’s coverage, which relevant here. The claims presented petition are sufficient overcome Farm’s argument mindful removal jurisdiction is strictly construed. See: Shamrock Oil & Gas Corp. Sheets, U.S. (1941); Brown Demco, Inc., (5th Cir. 1986); Butler Polk, (5th 1979); C. Wright, A. Miller & E. Cooper, 14B Federal Practice & Procedure: Civil , §3721. When subject matter jurisdiction doubtful, remand appropriate. C. Wright, A. Miller E. Cooper, 14C Federal Practice & Procedure: Civil §3739.
Accordingly,
IT IS ORDERED motion remand plaintiff, Frances Caldwell a/k/a Frances Cadwell, GRANTED. (Rec. Doc. matter hereby is REMANDED 22nd Judicial District Parish Tammany, of Louisiana, due lack subject U.S.C. § 1447(c).
New Orleans, Louisiana, th day January, 2007. _______________________________ HELEN G. BERRIGAN UNITED STATES DISTRICT JUDGE
[1] There issue first issued policy April 2002, that it renewed August more than one prior filing suit on August 29, 2006.
[2] address whether jurisdictional minimum existed at time removal, fraud regard naming AAA Contractors defendant.