Opinion
Case No. 8:16-cv-3034-T-33MAP
11-03-2016
MILLER CHIROPRACTIC & MEDICAL CENTERS, INC., Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant.
ORDER
This cause comes before the Court sua sponte. For the reasons that follow, this case is remanded to the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, for lack of subject matter jurisdiction. Discussion
This action was removed to this Court from the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida on October 27, 2016, on the basis of diversity jurisdiction. (Doc. # 1). When jurisdiction is premised upon diversity of citizenship, 28 U.S.C. § 1332(a) requires among other things that "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." If "the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed." Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). When "damages are unspecified, the removing party bears the burden of establishing the jurisdictional amount by a preponderance of the evidence." Lowery v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007).
The Complaint does not state a specified claim to damages. (Doc. # 2 at ¶ 1) (stating "[t]his is an action for damages that do not exceed $14,999.99, exclusive of interest, costs, and attorneys' fees"). In its Notice of Removal (Doc. # 1), Defendant Progressive Select Insurance Company states that although the compensatory damages are below $15,000, the amount in controversy exceeds $75,000. Progressive asserts that, by the conclusion of the case, Plaintiff Miller Chiropractic & Medical Centers, Inc., will have incurred over $75,000 in attorney's fees, which it may recover under Florida Statutes § 627.428, which allows for fees to a prevailing insured party, and § 624.155(4), which allows for fees to a prevailing insured party on statutory bad faith claims. (Doc. # 1 at ¶¶ 5, 7).
Progressive notes that counsel for Miller Chiropractic & Medical Centers, Inc., has recovered over $75,000 in attorney's fees under the state statutes in other insurance cases. (Id. at ¶ 6). Furthermore, Progressive filed the declaration of its counsel regarding the estimation of attorney's fees. The declaration states: "In the event that this matter is litigated through trial, the attorney's fees incurred by [Miller Chiropractic's counsel], will more likely than not include a claim for attorney's fees exceeding $75,000, at an hourly rate claimed as high as $450 per hour." (Doc. # 1-1 at 74).
"When a statute authorizes the recovery of attorney's fees, a reasonable amount of those fees is included in the amount in controversy." Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000). However, courts in this circuit are divided over whether to include the projected amount of attorney's fees or only attorney's fees as of the time of removal.
Some courts have included estimated attorney's fees based on the likely cost of litigating through trial. See DO Rests., Inc. v. Aspen Specialty Ins. Co., 984 F. Supp. 2d 1342, 1345-47 (S.D. Fla. 2013)(including estimated future attorney's fees in the amount in controversy); Mirras v. Time Ins. Co., 578 F. Supp. 2d 1351, 1352-53 (M.D. Fla. 2008)(finding that anticipated statutory attorney's fees were included in calculating amount in controversy and the attorney's fees in that insurance breach of contract case would likely reach over $28,000, the minimum needed to surpass $75,000, when combined with compensatory damages).
However, many other courts have held that only attorney's fees accrued up to the time of removal are included in calculating whether the amount-in-controversy requirement is met. See Bragg v. Suntrust Bank, No. 8:16-cv-139-T-33TBM, 2016 WL 836692, at *3 (M.D. Fla. Mar. 4, 2016)(remanding case where defendant failed to provide information to calculate the attorney's fees accrued to the day of removal); Keller v. Jasper Contractors, Inc., No. 8:15-cv-1773-T-23TBM, 2015 U.S. Dist. LEXIS 106110, at *3 (M.D. Fla. Aug. 12, 2015)(sua sponte remanding and explaining that "only the attorney's fees accrued to the day of removal can contribute to the amount in controversy"); see also Frisher v. Lincoln Benefit Life Co., No. 13-20268-CIV, 2013 WL 12092525, at *5 (S.D. Fla. Aug. 19, 2013)(remanding because, "[a]ssuming that Plaintiff incurred $10,000 in attorneys' fees at the time of removal, this amount combined with the $15,210.00 in compensatory damages is insufficient to meet the amount in controversy requirement"); Lott & Friedland, P.A. v. Creative Compounds, LLC, No. 10-20052-CIV, 2010 WL 2044889, at *4 (S.D. Fla. Apr. 21, 2010)("The Court agrees with the general rule that post-removal events, such as the subsequent generation of attorney fees, cannot create jurisdiction that was lacking at the outset."); Rogatinsky v. Metro. Life Ins. Co., No. 09-80740-CIV, 2009 WL 3667073, at *2 (S.D. Fla. Oct. 26, 2009)("[F]or jurisdictional purposes, the amount of attorney's fees are calculated at the time of removal."); Waltemyer v. Nw. Mut. Life Ins. Co., No. 2:06-cv-597-FTM-29DNF, 2007 WL 419663, at *1-2 (M.D. Fla. Feb. 2, 2007) (remanding case because the attorney's fees at the time of removal, combined with the $20,000 in damages claimed by plaintiff, was insufficient to establish that the amount in controversy had been met).
This Court considers the latter approach correct and sees "no reason to deviate from the general rule that in a removed case the amount in controversy is determined as of the time of removal," to include a highly speculative amount of attorney's fees estimated through trial. Waltemyer, 2007 WL 419663, at *1-2; see also Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998)(noting that if future attorney's fees could be estimated, that calculation "includes the value of legal services that have not been and may never be incurred, and are therefore not 'in controversy' between the parties"). For jurisdictional purposes, the attorney's fees included in the amount-in-controversy calculation are set as of the date of removal.
The declaration of Progressive's counsel does not provide an estimate for the amount of attorney's fees that have been incurred by Miller Chiropractic at the time of removal. Rather, Progressive only provides information about the projected total amount of attorney's fees through trial based on opposing counsel's hourly rate and previous awards of attorney's fees. (Doc. # 1-1 at 74). Therefore, Progressive has not proven by a preponderance of the evidence that the amount-in-controversy requirement has been met.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED: (1) This case is remanded to the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida pursuant to 28 U.S.C. § 1447(c), because this Court lacks subject matter jurisdiction. (2) After remand has been effected, the Clerk shall CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd day of November, 2016.
/s/_________
VIRGINIA M. HERNANDEZ COVINGTON
UNITED STATES DISTRICT JUDGE