Opinion
Case No. 6:20-cv-940-Orl-41LRH
2020-07-20
Marianne L. POLTAR and David M. Poltar, Plaintiffs, v. LM GENERAL INSURANCE COMPANY, Defendant.
Jennifer Marie Andrews, Andrews Law, P.A., Orlando, FL, for Plaintiffs. Matthew J. Lavisky, Jamie Combee Novaes, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendant.
Jennifer Marie Andrews, Andrews Law, P.A., Orlando, FL, for Plaintiffs.
Matthew J. Lavisky, Jamie Combee Novaes, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendant.
ORDER
CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Plaintiffs’ Motion to Remand (Doc. 8) and Defendant's "Motion to Dismiss Count [II]" ("Motion to Dismiss," Doc. 7) (collectively, "Motions"). Both Motions have responses in opposition. (Def.’s Resp. in Opp., Doc. 15; Pls.’ Resp. in Opp., Doc. 14). For the reasons stated herein, Plaintiffs’ Motion to Remand will be denied and Defendant's Motion to Dismiss will be granted, and Count II will be dismissed.
I. BACKGROUND
On or about September 3, 2018, the front passenger side of Plaintiffs’ vehicle was struck by Elijah Dante Cervantes’ ("Cervantes") vehicle near an intersection between Simmons Road and Conway Road in Orange County, Florida. (Compl., Doc. 1-1, ¶¶ 2–3). Cervantes was an underinsured motorist and allegedly caused the collision by his negligence. (Id. ). The collision resulted in injuries to both Plaintiffs, who contend their injuries are permanent. (Id. ¶ 12). Plaintiffs initiated this action against Defendant, Plaintiffs’ insurance company, in state court, bringing two claims. (See generally id. ). In Count I, Plaintiffs assert that Defendant has failed to pay Plaintiffs’ insurance claims for the collision under Plaintiffs’ uninsured motorist coverage in violation of their insurance contract. (Id. ). And in Count II, Plaintiffs bring a bad faith claim against Defendant alleging that Defendant acted in bad faith by failing to settle their claim. (Id. ). Defendant timely removed the case to this Court. (See generally Notice of Removal, Doc. 1). The Court will first address the Motion to Remand and then will discuss the Motion to Dismiss.
II. MOTION TO REMAND
A. Legal Standard
"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed ... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), a district court may have original jurisdiction where both "the matter in controversy exceeds the sum or value of $75,000" and the parties are "citizens of different States." In determining the amount in controversy, the relevant question is whether the plaintiff seeks damages in excess of the jurisdictional limit, not whether the plaintiff will actually recover sufficient damages. Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744, 751 (11th Cir. 2010). In that vein, "[a] court's analysis of the amount-in-controversy requirement focuses on how much is in controversy at the time of removal, not later." Id. (citing cases).
A defendant seeking to remove a case bears the burden of proving that the federal district court has original jurisdiction. Williams v. Best Buy Co. , 269 F.3d 1316, 1319 (11th Cir. 2001). Where, as here, the plaintiff does not plead "a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement." Id. Nonetheless, "a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka , 608 F.3d at 754. "Eleventh Circuit precedent permits district courts to make ‘reasonable deductions, reasonable inferences, or other reasonable extrapolations’ from the pleadings to determine whether it is facially apparent that a case is removable." Roe v. Michelin N. Am., Inc. , 613 F.3d 1058, 1061–62 (11th Cir. 2010) (quoting Pretka , 608 F.3d at 754 ). "Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly." Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 411 (11th Cir. 1999). Any doubt as to "jurisdiction should be resolved in favor of remand to state court." Id.
B. Analysis
Plaintiffs argue that Defendant has not shown by a preponderance of the evidence that the amount in controversy exceeds $75,000. In their Motion to Remand, Plaintiffs argue chiefly that Defendant has offered to settle for less than $6,000, and therefore because Defendant does not believe the amount in controversy does not meet the jurisdictional threshold, the case should be remanded. (Doc. 8 at 3; Settlement Offer Email, Doc. 8-1, at 1). Plaintiffs also argue that the bad faith claim cannot be considered for purposes of determining the amount in controversy because it has not yet accrued and that they are entitled to a set-off from a bodily injury settlement of $15,000.
Plaintiffs do not state whether they are requesting a set-off of $15,000 per Plaintiff or $15,000 total.
As an initial matter, Plaintiffs cite no legal authority for the proposition that a defendant's settlement offer can be considered in determining if the amount in controversy requirement has been met. There is no question that a Court may consider a settlement offer made by a plaintiff in determining if diversity jurisdiction exists. See, e.g. , Burns v. Windsor Ins. Co. , 31 F.3d 1092, 1097 (11th Cir. 1994) (considering a plaintiff's settlement offer as "count[ing] for something" when assessing the amount in controversy); Gehl v. Direct Transp., Ltd. , No. 6:12-cv-1869-Orl-31DAB, 2013 WL 424300, at *3 (M.D. Fla. Feb. 4, 2013) ("A plaintiff's settlement demand or a plaintiff's response to a settlement offer is some evidence of the amount in controversy." (emphasis removed)). Nevertheless, "it is especially difficult to use a defendant's settlement offer as evidence of a low amount in controversy because such an offer is likely to reflect the fact that the plaintiff may be unable to establish liability." Lutins v. State Farm Mut. Auto. Ins. Co. , No. 3:10-cv-817-J-99MCR, 2010 WL 6790537, at *2 n.3 (M.D. Fla. Nov. 4, 2010) (emphasis added); see also Wilt v. Depositors Ins. Co. , No. 6:13-cv-1502-Orl-36KRS, 2013 WL 6195768, at *8 (M.D. Fla. Nov. 23, 2013) ("[A] defendant's settlement offer is not evidence of a low amount in controversy because, as is the case here, such an offer is likely to reflect defendant's belief that the plaintiff may be unable to establish liability."); Gehl , 2013 WL 424300, at *3 (noting that the case law with respect to the use of settlement offers is specific to the plaintiff's demands or responses because the "relevant inquiry is plaintiff focused"). Accordingly, the Court finds that Defendant's settlement offer is not persuasive evidence of the amount-in-controversy.
The Court therefore need not consider Plaintiffs’ argument regarding set-off because that argument is based solely on Defendant's perceived valuation of the case per Defendant's demand letters. Additionally, Plaintiffs provide no information regarding the set-off other than that they obtained $15,000 "as part of a bodily injury settlement." (Doc. 8 at 6). Plaintiffs provide no evidence regarding the settlement, nor any legal authority or analysis explaining why a set-off is necessary. See United States Steel Corp. v. Astrue , 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (refusing to address a "perfunctory and underdeveloped argument" with no citation to legal authority and collecting cases).
In response, Defendant contends that the Court should consider Plaintiffs’ demand for policy limits, Plaintiffs’ allegations of permanent bodily injury, and Plaintiffs’ past medical bills and future medical bill estimates. (See Demand Letters, Doc. 1-4).
Settlement offers are not conclusive proof of the amount in controversy as these offers, particularly pre-suit offers, typically "reflect puffing and posturing" on the part of the plaintiff. Jackson v. Select Portfolio Servicing, Inc. , 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009) ; Golden v. Dodge-Markham Co. , 1 F. Supp. 2d 1360, 1364–65 (M.D. Fla. 1998). However, Courts must consider the "circumstances" under which a settlement offer was made in weighing its evidentiary value. Jackson , 651 F. Supp. 2d at 1281. "[S]ettlement offers that provide specific information to support the plaintiff[s]’ claim for damages suggest the plaintiff[s] [are] offering a reasonable assessment of the value of [their] claim[s] and are entitled to more weight." Id. (quotation omitted).
Here, the demand letters provide detailed descriptions of both Plaintiffs’ injuries, as well as of each Plaintiff's medical costs incurred and itemized lists of expected future medical costs to be incurred. Per the demand letters, Marianne Poltar has incurred $18,593.12 in medical expenses and expects to incur more than $120,000 in the future. (Doc. 1-4 at 3 (listing future medical procedures Ms. Poltar may need and the costs)). David Poltar has incurred $19,124.53 in medical expenses and expects to incur more than $80,000 in the future. (Id. at 8 (listing future medical procedures Mr. Poltar may need and the costs)). The demand letters state that Plaintiffs will accept $100,000—the policy limits—each for the settlement of their claims. Further, Plaintiffs attached an email thread between their counsel and Defendant's counsel in which Plaintiffs’ counsel states that if a check is not received for the policy limits, they will be filing a lawsuit and that Plaintiffs are "not willing to negotiate further." (Email Negotiations, Doc. 8-2, at 1–2). Given the medical expenditures thus far, the detailed explanation of potential future medical costs to be incurred, and the strongly worded nature of Plaintiffs’ emails, the circumstances surrounding Plaintiffs’ settlement demands do not appear to lend themselves to the inference that Plaintiffs were merely posturing with their demands.
In addition to compensation for their medical bills, Plaintiffs are seeking non-economic damages for: pain and suffering due to the allegedly permanent injuries, mental anguish, and the loss of the capacity for the enjoyment of life. (Doc. 1-1 ¶ 12). Plaintiffs claim that they were "healthy, active 38 year-old" adults that enjoyed an active lifestyle and that these injuries have "greatly [a]ffected" them. (Doc. 1-4 at 4,8). Plaintiffs indicate that they have problems sleeping as well as caring for their newborn child as a result of the injuries sustained from the accident. (Id. ). The Court may consider these non-economic damages in calculating the amount in controversy. Wineberger v. Racetrac Petroleum, Inc. , 672 F. App'x 914, 917–18 (11th Cir. 2016) (affirming district court's conclusion that the amount in controversy more likely than not exceeded $75,000 when the district court took noneconomic damages into account). And, Plaintiffs’ allegations of their physical injuries support these claims for non-economic damages.
Ms. Poltar was pregnant at the time of the accident. (Id. at 2).
Taking into consideration the $100,000 pre-suit demand letter for each Plaintiff, Plaintiffs’ past and future medical expenses, and non-economic damages Plaintiffs seek to recover, it is reasonable to conclude that the amount in controversy exceeds $75,000 for each Plaintiff. As the Court has determined that the amount in controversy is satisfied, Plaintiffs’ remaining arguments need not be addressed. Accordingly, Plaintiffs’ Motion to Remand will be denied.
III. MOTION TO DISMISS
Defendant filed a Motion to Dismiss, arguing that Count II should be dismissed. Defendant's Motion to Dismiss does not move for dismissal pursuant to any Federal Rule of Civil Procedure. For the sake of judicial efficiency, the Court will construe Defendant's Motion to Dismiss as being brought pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
A. Legal Standard
"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer , 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Furthermore, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Generally, in deciding a motion to dismiss, "[t]he scope of the review must be limited to the four corners of the complaint." St. George v. Pinellas Cty. , 285 F.3d 1334, 1337 (11th Cir. 2002). B. Analysis
Count II alleges a claim of bad faith in violation of section 624.55, Florida Statutes. Defendant argues that this claim is due to be dismissed because it is not ripe and has not yet accrued, and therefore, dismissal is the appropriate remedy. Plaintiffs argue that Count II should be abated, not dismissed, pending the resolution of the claims set forth in Count I of the Complaint.
This Court agrees that the practice of holding bad faith claims in abatement pending the resolution of an underlying claim has been deemed acceptable by Florida courts. See Allstate Indem. Co. v. Ruiz , 899 So. 2d 1121, 1130 (Fla. 2005) ; see also Lawton-Davis v. State Farm Mut. Auto. Ins. Co. , No. 6:14-cv-1157-Orl-37GJK, 2014 WL 6674458, at *2 (M.D. Fla. Nov. 24, 2014) (stating that both abatement and dismissal without prejudice are permitted by Florida courts); Gianassi v. State Farm Mut. Auto. Ins. Co. , 60 F. Supp. 3d 1267, 1270 (M.D. Fla. 2014) (same). However, Plaintiffs’ argument overlooks one significant difference between state and federal courts. Federal courts are courts of limited jurisdiction, so when a case is brought in diversity, the plaintiff bears the burden of establishing the Article III prerequisites to jurisdiction. Westchester Fire Ins. Co. v. Punit Corp. , No. 3:03cv188/MCR, 2006 WL 3755198, at *2–3 (N.D. Fla. Dec. 19, 2006) ; see also Trailer Bridge, Inc. v. Ill. Nat'l Ins. Co. , 657 F.3d 1135, 1141 (11th Cir. 2011) ("In diversity actions, the federal court must apply the substantive law of the state in which it sits, except in matters governed by the Federal Constitution or by act of Congress." (quotation omitted)). Thus, Plaintiffs must establish that their claims are ripe for adjudication.
"A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ " Texas v. United States , 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co. , 473 U.S. 568, 580–81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) ). "If a claim is not ripe, the district court lacks jurisdiction to issue a ruling on the merits and therefore must dismiss that claim without prejudice." Serpentfoot v. Rome City Comm'n , 322 F. App'x 801, 805 (11th Cir. 2009). "[A] cause of action in court for [bad faith] is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract." Vest v. Travelers Ins. Co. , 753 So. 2d 1270, 1276 (Fla. 2000) ; see also Cunningham v. Standard Guar. Ins. Co. , 630 So. 2d 179, 181 (Fla. 1994) ("Under ordinary circumstances, a third party must obtain a judgment against the insured in excess of the policy limits before prosecuting a bad-faith claim against the insured's liability carrier."). Thus, a claim for bad faith requires: (1) a determination of liability and (2) a judgment awarding damages in excess of the policy limits.
Plaintiffs cannot establish the required elements for a bad faith claim at this stage. Furthermore, it is uncertain that Plaintiffs will ever be able to establish these elements as Defendant may be found not liable or may be found liable for damages not in excess of the policy limits. Accordingly, Plaintiffs’ bad faith claim is not ripe, and this Court lacks jurisdiction over it. See Gen. Accident Ins. Co. v. Shah , No. 6:00-cv-489-ORL28KRS, 2001 WL 273244, at *3 (M.D. Fla. Jan. 23, 2001). Count II of the Complaint will be dismissed without prejudice for lack of subject matter jurisdiction.
IV. CONCLUSION
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. Plaintiffs’ Motion to Remand (Doc. 8) is DENIED .
2. Defendant's "Motion to Dismiss Count [II]" (Doc. 7) is GRANTED . Count II of the Complaint is DISMISSED without prejudice .
3. On or before July 29, 2020 , Defendant shall file its answer to the Complaint. Failure to do so may result in sanctions including but not limited to the imposition of default without further notice.
DONE and ORDERED in Orlando, Florida on July 20, 2020.