Opinion
Case No. 3:03CV7492
November 10, 2003
ORDER
This is a declaratory judgment action by an employer against one of its employees and its insurer. The employer seeks to recover about $350,000 paid by it for the benefit of its employee after she was injured in an automobile accident. The employer claims that the insurer is obligated to cover payments in excess of $100,000. In the alternative, the employer seeks to recover those payments from the employee on the basis that it was not obligated to make those payments.
As to the employee, the employer claims that, if it is found not entitled to recover against the insurer, that judgment be entered against the employee for the amounts paid to her.
Plaintiff initially filed this suit in the Common Pleas Court of Marion County, Ohio. The defendant insurer removed the case to this court on the basis of diversity jurisdiction. Pending is the plaintiffs motion to remand on the basis that it and the co-defendant, its employee, are both Ohio residents, so that complete diversity does not exist.
In response the defendant insurer contends that the employee was fraudulently joined to defeat this court's diversity jurisdiction. The gravamen of the insurer's motion is that the plaintiff has not stated a valid cause of action against the co-defendant employee. I agree, and the motion to remand shall be overruled.
Plaintiff claims that it had no obligation to make the payments to its employee. In light of this contention, the defendant insurer argues that the plaintiff made those payments as a volunteer. Plaintiff has not responded to this contention, which, in any event, appears well taken.
In Ohio, a person who expends funds for the benefit of another without being obligated in law to do so cannot recover those funds from their recipient. Case Western Reserve Univ. v. Friedman, 33 Ohio App.3d 347, 348 (1986) (The long-standing general rule in Ohio on voluntary payments is that a volunteer who makes payment, albeit mistakenly . . . may not thereafter seek reimbursement from the benefiting party for his error.").
Because no cause of action has been stated against the non-diverse defendant, I conclude that she has been joined fraudulently, and that such joinder cannot defeat this court's diversity jurisdiction. It is, accordingly,
ORDERED THAT the plaintiffs motion to remand be, and the same hereby is overruled.
A case management conference is scheduled for November 24, 2003 at 4:00 p.m. Out of town counsel may participate by phone; parties need not attend.
So ordered.