Opinion
Case No: 5:23-cv-181-JSM-PRL
2023-05-16
Kevin CASKEY, Plaintiff, v. STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
Christopher N. Ligori, Christopher N. Ligori & Associates, Tampa, FL, for Plaintiff. Dustin Craig Blumenthal, Goldberg Segalla LLP, West Palm Beach, FL, for Defendant.
Christopher N. Ligori, Christopher N. Ligori & Associates, Tampa, FL, for Plaintiff. Dustin Craig Blumenthal, Goldberg Segalla LLP, West Palm Beach, FL, for Defendant. ORDER JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant's Dispositive Motion to Dismiss (Dkt. 6) and Plaintiff's Response in Opposition, which also contains a Motion to Remand (Dkt. 11). Upon review of these filings, including the responses and replies, the Court concludes that the motion to remand should be denied because Defendant established by a preponderance of the evidence that the parties are diverse and the amount in controversy exceeds $75,000. The Court also concludes that Defendant's motion to dismiss should be granted because the allegations of the complaint make clear that there is no coverage for the subject hit-and-run accident.
BACKGROUND
On March 10, 2023, Plaintiff Kevin Caskey filed a Complaint against Defendant State Auto Property and Casualty Insurance Company in the Circuit Court of the Fifth Judicial Circuit of the State of Florida, in and for Marion County, Florida, under case number 23-CA-405. State Auto timely removed Caskey's Complaint to this Court under diversity jurisdiction.
In the Complaint, Caskey alleges that "on or about March 11, 2020, . . . [he] was a passenger in a motor vehicle that was traveling north on Interstate #75 at or near its intersection with State Road 326 in Marion County, Florida." See Compl. at ¶ 6. Caskey alleges that "a portion/piece of a hit-and-run vehicle flew through and hit the windshield and other portions of the vehicle that [Caskey] was riding in." "The portion/piece also hit [Caskey]" causing bodily injuries. Id. at ¶¶ 8-9. Caskey and State Auto entered into an insurance agreement that provided underinsured/uninsured ("UM") benefits for him and the vehicle that Caskey was riding in as a passenger. Caskey finally alleges that State Auto "has refused to compensate [Caskey] for the damages." Id. at ¶ 14.
Caskey attached the insurance policy issued by State Auto as Exhibit A to the Complaint. The "State Auto Policy" bears policy number BAP 2478149 00, effective August 29, 2019, to August 29, 2020. The vehicle involved in the accident is listed in the State Auto Policy's declarations as "VEHICLE # 066" and is described as a North Carolina vehicle, 2014 Ford E450, bearing a Vehicle Identification Number ending in 9936.
The State Auto Policy is amended by one or more endorsements, including the "North Carolina Uninsured Motorists Coverage" (the "NC UM Endorsement"). See Dkt. 1-1 at pp. 68-71. The NC UM Endorsement states, in relevant part:
NORTH CAROLINA UNINSURED MOTORISTS COVERAGE(emphasis added).
For a covered "auto" licensed or garaged in, or "auto dealer operations" conducted in, North Carolina, this endorsement modifies insurance under the following:
* * *
A. Coverage
1. We will pay all sums that the "insured" is legally entitled to recover as compensatory damages from the owner or driver of:
a. An "uninsured motor vehicle" because of "bodily injury" sustained by the "insured" and caused by an "accident"; . . .
* * *
The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the "uninsured motor vehicle."
* * *
F. Additional Definitions
As used in this endorsement:
* * *
4. "Uninsured motor vehicle" means a land motor vehicle or "trailer"
d. That is a hit-and-run vehicle causing "bodily injury" to an "insured" and neither the driver nor owner can be identified. The vehicle must hit an "insured", a covered "auto" or a vehicle an "insured" is "occupying."
Defendant's motion to dismiss argues that the complaint must be dismissed with prejudice because, under the policy and applicable North Carolina law, there is no uninsured coverage when the hit-and-run vehicle does not hit the insured's vehicle. The Court agrees based on a review of the applicable law and the allegations of Plaintiff's Complaint. Before the Court reaches this dispositive issue, the Court begins with Plaintiff's motion to remand, since jurisdiction is a threshold issue. There is no dispute that the parties are completely diverse. Plaintiff argues that the amount in controversy requirement is not met.
MOTION TO REMAND STANDARD
Where the alleged basis for federal jurisdiction is diversity, the removing defendant has the burden of demonstrating (1) complete diversity of citizenship and (2) an amount in controversy greater than $75,000. 28 U.S.C. § 1332(a); see McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (holding that the party who seeks federal jurisdiction must establish jurisdictional facts). The defendant must prove these jurisdictional facts by a preponderance of the evidence. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (citation omitted). Thus, the defendant must prove only that the amount in controversy "more likely than not" exceeds the jurisdictional amount. Id. It need not prove the amount in controversy "beyond all doubt or banish all uncertainty about it." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010).
In determining the amount in controversy, a court should look first to the complaint. Id. When, as here, damages are not specified in the state-court complaint, the defendant seeking removal "need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 135 S. Ct. 547, 554, 190 L.Ed.2d 495 (2014) (citing 28 U.S.C. § 1446(a)). If, however, a "plaintiff contests the defendant's allegation . . . '[R]emoval . . . is proper on the basis of an amount in controversy asserted' by the defendant 'if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds' the jurisdictional threshold." Id. at 553-54 (quoting 28 U.S.C. § 1446(c)(2)(B)); see also Roe, 613 F.3d at 1061. District courts are permitted to make "reasonable deductions, . . . inferences, [and] . . . extrapolations" and need not "suspend reality" in determining whether a party has established the jurisdictional amount. Roe, 613 F.3d at 1061-62 (citation and internal quotation marks omitted).
DISCUSSION
Upon review of the relevant filings, the Court concludes that Plaintiff's motion to remand is without merit. The record reflects that Defendant's removal relied on Plaintiff's one-million-dollar settlement demand, the allegations of the Complaint that delineated extensive damages, and Plaintiff's itemized medical bills, which, at the time of removal, exceeded $75,000. Plaintiff's main argument is that the medical bills should be offset. As Defendant points out in the response, the relevant inquiry is the amount of damages at the time of removal. It is of no import whether certain damages will be subsequently offset.
In sum, Defendant's evidence—combined with the Court's experience and common sense—reflect that the amount in controversy "more likely than not" exceeds the jurisdictional amount. So, the Court denies Plaintiff's request to remand this case and now turns to the merits of Defendant's motion to dismiss.
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal citation omitted). It must also construe those factual allegations in the light most favorable to the plaintiff. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted).
To withstand a motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pleadings that offer only "labels and conclusions," or a "formulaic recitation of the elements of a cause of action," will not do. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
DISCUSSION
The parties agree that North Carolina law applies because the State Auto insurance policy was issued and delivered to a North Carolina corporation. Under North Carolina law, contact with debris—even from a hit-and-run vehicle—is insufficient to trigger UM coverage. There must be an actual "collision between motor vehicles" for UM coverage to be triggered. See N.C. Gen. Stat. § 20-279(b)(3)(b). North Carolina law and the State Auto policy are consistent on this requirement. Defendant argues that the Complaint does not allege that Plaintiff's vehicle collided with another vehicle. So, a dismissal with prejudice is appropriate. The Complaint's allegations state that a "portion/piece flew through and hit the windshield" of the insured vehicle.
Notably, Plaintiff's response in opposition does not seek to amend the complaint and does not dispute that the vehicle Plaintiff was in was not hit by another vehicle. Rather, Plaintiff argues that coverage should still apply because the item that hit Plaintiff was part of the hit-and-run vehicle. Specifically, the Complaint alleges that a piece of a hit-and-run vehicle hit the windshield of the vehicle Plaintiff was riding in and struck his body. In his response, Plaintiff more specifically describes the piece as a universal joint (or a U-joint) "that is usually attached to the driveshaft of a vehicle and came off in one continuous motion." The Court assumes the truth of the allegations and has limited its examination of this issue to the four corners of Plaintiff's Complaint. But, even assuming these facts, North Carolina law is clear that the hit-and-run vehicle (not a "part" or "piece" of the vehicle) must collide with the insured's vehicle.
Indeed, every case the Court has read, other than the lone case Plaintiff cites to, which was subsequently rejected, interprets uninsured motorist coverage "to require physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver for the uninsured motorist provision of the statute to apply." Moore v. Nationwide Mut. Ins. Co., 191 N.C.App. 106, 664 S.E.2d 326, 328 (2008). See also Kaska v. Progressive Universal Ins. Co., 798 S.E.2d 431 (Table), 2017 WL 1056246 (N.C. App. 2017) (holding no collision occurred between vehicles as required for uninsured motorist coverage); Prouse v. Bituminous Cas. Corp., 222 N.C.App. 111, 730 S.E.2d 239 (2012) (holding physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver required for uninsured motorist coverage).
Defendant's Reply aptly discusses North Caroline law on this point and notes that Plaintiff's case, Geico Insurance Company v. Larson, 542 F. Supp. 2d 441 (E.D.N.C. 2008), was "expressly rejected" by Moore, Kaska, and Prouse. Larson involved a UM claim arising from a motor vehicle accident that occurred when a large rock fell from an unidentified dump truck and passed through the driver's windshield—all without the insured's car contacting the dump truck or any other vehicle. Larson, 542 F. Supp. 2d at 443. This fact pattern is very similar to the one alleged by Plaintiff—that a universal joint (or U-joint) fell from an unidentified car and went through the vehicle's windshield causing Plaintiff to sustain injuries.
While Larson was decided in favor of the insured, at that time, "there was no North Carolina case on point" on the issue of whether the collision had to occur with the hit-and-run vehicle, not something that was from it or a part of it. Id. at 444-445 ("both parties acknowledge that there is no North Carolina case law directly on point, although plaintiff contends that several North Carolina cases [and statutes] require physical contact must be made with an unidentified vehicle and another vehicle for uninsured motorist coverage to exist.").
Later that year, Larson was "expressly rejected" by the North Carolina Court of Appeals and the North Carolina Supreme Court. See Moore v. Nationwide Mut. Ins. Co., 191 N.C. App. 106, 664 S.E.2d 326, affirmed 362 N.C. 673, 669 S.E.2d 321 (2008). The fact pattern in Moore is also very similar to Plaintiff's allegations here. Moore involved a UM claim after the insured "struck a pine tree log that had fallen off a truck and was lying in the middle of the interstate." 191 N.C. App. at 107, 664 S.E.2d 326. The UM insurer filed a motion to dismiss that was granted by the trial court and subsequently affirmed by the North Carolina Court of Appeals. The court relied on the North Carolina legislature and the North Carolina Supreme Court case of Andersen v. Baccus, 335 N.C. 526, 529, 439 S.E.2d 136 (1994), and held that the insured's complaint failed to satisfy the requirement of "physical contact" with another vehicle. "Because the essential element of [physical contact] is non-existent[,] . . . the trial court properly granted [the insurer's] motion to dismiss." Moore, 191 N.C. App. at 110, 664 S.E.2d 326.
Four years after Larson and Moore, the North Carolina Court of Appeals reiterated the physical contact requirement. See Prouse v. Bituminous Cas. Corp., 222 N.C. App. 111, 730 S.E.2d 239 (2012). Prouse also involved a fact pattern similar to Plaintiff's Complaint. In Prouse, the insured was injured when his vehicle was struck by a moving tire that fell from a moving vehicle. The insured's vehicle did not have physical contact with the other vehicle. Id. at 112, 730 S.E.2d 239. The insurer moved to dismiss the complaint relying on N.C. Gen. Stat. § 20-279.21 and the court's decision in Moore. The trial court granted the motion and dismissed the complaint with prejudice, and the Court of Appeals affirmed the trial court's decision. Id. at 113, 730 S.E.2d 239. In affirming the trial court, the North Carolina Court of Appeals noted:
Although Plaintiffs attempt to distinguish Moore on the grounds that the object that struck the vehicle in which Mr. Prouse was riding fell from a "hit-and-run" vehicle and struck the vehicle in which Mr. Prouse was riding in one continuous motion rather than falling from the "hit-and-run" vehicle and lying in the roadway for some time before the collision, we do not believe that the distinction upon which Plaintiffs rely is a material one. Unfortunately for Plaintiffs, the Supreme Court has expressly "decline[d] to change [the] existing judicial
interpretation of the uninsured motorist statute . . . ," Id. (quoting Andersen, 335 N.C. at 529, 439 S.E.2d at 138), which requires physical contact between the insured and the hit-and-run driver. Such contact is not alleged to have occurred here. In such circumstances, we are required to adhere "to the principle of stare decisis[,]" Id. (quoting Andersen, 335 N.C. at 529, 439 S.E.2d at 138), and lack the authority to revisit the previous decisions of this Court and the Supreme Court construing N.C. Gen. Stat. § 20-279.21(b)(3)(b). As a result, given that Plaintiffs' complaint "on its face reveals that no law supports [their] claim," Wood, 355 N.C. at 166, 558 S.E.2d at 494, the trial court properly granted Defendants' dismissal motions.Id. at 115-116, 730 S.E.2d 239. This distinction is particularly relevant here because Plaintiff attempts to argue that the U-joint was a part of the hit-and-run vehicle, a fact that does not change the outcome as Prouse makes clear.
In sum, based on the applicable North Carolina law, the involvement of a U-joint, or another part of the hit-and-run vehicle, as opposed to a fallen tire or a tree log in the middle of the road, is immaterial to the issue of whether there is UM coverage. Andersen, Moore, and Prouse hold that there must be "physical contact" between two vehicles—the insured's vehicle and the hit-and-run vehicle—in order for UM coverage to apply. Dismissal with prejudice is appropriate because Plaintiff cannot allege facts showing this physical contact.
Accordingly, it is ORDERED AND ADJUDGED that:
1. Plaintiff's Motion to Remand (Dkt. 11) is denied.
2. Defendant's Motion to Dismiss (Dkt. 6) is granted.
3. The Complaint is dismissed with prejudice.
4. The Clerk of Court is instructed to terminate any pending motions as moot and close this case.
DONE and ORDERED in Tampa, Florida, this May 16, 2023.