Opinion
Case No. 4:01 CV 0726
April 29, 2002
MEMORANDUM OPINION AND ORDER
This matter is presently before the Court on a motion for summary judgment filed by the defendant. (Doc. No. 15). For the reasons discussed below, the Court declines any ruling on the motion but, rather, sua sponte dismisses this action for lack of subject matter jurisdiction.
This case was filed on March 28, 2001 purportedly under this Court's diversity jurisdiction. 28 U.S.C. § 1332. The complaint alleges that, on January 22, 1992, plaintiff David H. Jividen was severely and permanently injured in a motor vehicle accident caused by non-party John Wodzisz, an uninsured and/or underinsured ("UM/UIM") motorist. At the time of the accident, plaintiff was employed by Phar-Mor, Inc., which had its principal place of business in Mahoning County, Ohio. Phar-Mor, Inc. allegedly had UM/UIM insurance coverage through a policy of insurance supplied by the defendant insurance company. On the authority of Scott-Pontzer v. Liberty Mutual Fire Ins. Co., 85 Ohio St.3d 660 (1999), plaintiffs assert entitlement to a UM/UIM claim under that policy.
A related case, Jividen, et al. v. St. Paul Fire Marine Ins. Co., No. 1:02 CV 191, was filed on January 30, 2002 against the insurance company of Roxanne Jividen's employer. The case has been transferred to the docket of the undersigned under the district's related case rule.
The complaint also asserts a claim of loss of consortium on behalf of plaintiff Roxanne Jividen.
Ohio's Scott-Pontzer decision has spawned a multiplicity of cases filed in, or removed to, federal court under the diversity jurisdiction statute, since, as here, the insurance company defendants are often citizens of other states. For purposes of diversity, an entity such as an insurance company is a citizen of both its state of incorporation and the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1).
An insurer's citizenship can also be predicated on the citizenship of the insured. For that reason, some judges of this district have recently remanded cases to state courts from which they were removed, finding that the employer/insured was a citizen of Ohio, which destroys complete diversity. See e.g., Kormanik v. St. Paul Fire and Marine Ins., Co., No. 5:01 CV 2122, slip op. (N.D.Ohio. Oct. 19, 2001) (Polster, J.) (the citizenship of the insured is deemed to be the citizenship of the insurer); accord, Verhovec v. Wausau Ins. Co., No. 5:01 CV 0662, slip op. (N.D.Ohio. Nov. 14, 2001) (Polster, J.); Kohus v. Hartford Ins. Co., No. 1:01 CV 1179, slip op. (N.D.Ohio. Nov. 19, 2001) (Matia, J.); Comella v. St. Paul Mercury Ins. Co., 177 F. Supp.2d 704 (N.D.Ohio. 2001) (O'Malley, J.), appeal dismissed ___ F.3d ___, 2002 WL 467940, No. 02-3051 (6th Cir. Mar. 26, 2002); Stubbins v. Nationwide Agribusiness, 181 F. Supp.2d 805 (N.D.Ohio. 2002) (Carr, J.); Griffin v. Wausau Ins. Co., ___ F. Supp.2d ___, 2002 WL 312819, No. 3:01 CV 7611 (N.D.Ohio. Feb. 15, 2002) (Katz, J.); Butler v. Zurich American Ins. Co., 184 F. Supp.2d 695 (N.D.Ohio. 2002). See also, Monahan v. American States Ins. Co., No. 5:00 CV 1191, slip op. (N.D.Ohio. Dec. 20, 2001) (Economus, J.) (dismissing for lack of subject matter jurisdiction). But see, Redmon v. Sumitomo Marine Management (U.S.A.), Inc., 179 F. Supp.2d 787 (N.D.Ohio. 2001) (Aldrich, J.) (denying motion to remand, reaching opposite conclusion from the above-cited remanded cases); Fidelity Guaranty Ins. Underwriters, Inc. v. Nocero, ___ F. Supp.2d ___, 2000 WL 1792447, No. 1:01 CV 0397 (N.D.Ohio. Dec. 13, 2001) (Gaughan, J.) (denying motion to dismiss after concluding that a "direct action" under 28 U.S.C. § 1332(c)(1) does not include an action for declaratory judgment brought by an insurer against a claimed insured).
Monahan was filed in this court in the first instance and could, therefore, not be remanded to any state court. The dismissal, however, was premised on the same reasoning as in Kormanik and the other remanded cases. The instant case is similar to Monahan in that it, too, was filed directly in this court. Monahan is presently on appeal. (6th Cir. No. 02-3117).
On March 28, 2002, Redmon was dismissed on the parties' representation that it had settled. (Doc. No. 21).
On the same day, the court granted plaintiff's motion for summary judgment on its complaint for declaratory relief and denied defendant's motion. (Doc. Nos. 29, 30). This decision is presently on appeal. (6th Cir. No. 02-3049).
Although this Court cannot claim to have examined Fidelity very carefully, it does have an immediate question as to whether it could have been dismissed anyway under the teaching of Allstate Ins. Co. v. Mercier, 913 F.2d 273 (6th Cir. 1990) (district court should not have exercised its discretionary jurisdiction given the lack of factual record and given that there was a better and more effective alternative remedy through declaratory judgment action in state court); see also, Scottsdale Ins. Co. v. Roumph, 211 F.3d 964 (6th Cir. 2000), reh'g and suggestion for reh'g en banc denied, No. 98-1950 (6th Cir. July 7, 2000) (concluding that district court properly exercised its discretion where interpretation of the endorsement at issue involved a previously undetermined question of state law).
This Court has carefully reviewed the above decisions and is now prepared to adopt the reasoning of Kormanik and its progeny for instances where the named insured is a citizen of Ohio. Although the defendant here is not actually a citizen of Ohio, the Ohio citizenship of the named insured, Phar-Mor, is attributed to the defendant under Kormanik. Therefore, there is no diversity of citizenship where, as here, plaintiffs are citizens of Ohio and the defendant is deemed to be an Ohio citizen by virtue of the citizenship of the named insured.
This Court is a court of limited jurisdiction. The question of subject matter jurisdiction "may be raised at any time, by any party or even sua sponte by the court itself." Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir. 1992). In fact, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3).
Accordingly, concluding that there is a lack of subject matter jurisdiction, the Court hereby sua sponte dismisses this action without prejudice and without ruling on the pending motion for summary judgment.