Opinion
CASE NO.: 3:09cv74/MCR/EMT.
June 26, 2009
ORDER
This matter is before the court on the motions dismiss the amended complaint filed on behalf of Thomas William Martineau and Robyn Leigh Martineau. (Doc. 17, 23). Plaintiff has responded in opposition. (Doc. 20). Upon consideration, it is
ORDERED:
Defendants' motions are DENIED. For purposes of determining the amount in controversy under 28 U.S.C. § 1332 where an insurer seeks a declaration that it has no duty to defend a separate, underlying lawsuit, the court may consider the limits of the applicable insurance policy, the recovery sought in the underlying lawsuit, and the pecuniary value of the insurer's obligation to defend the underlying lawsuit. Stonewall Insurance Co. v. Lopez, 544 F.2d 198, 199 (5th Cir. 1976). Considering these factors in this case on a preponderance of the evidence standard, the court finds defendant has satisfied the jurisdictional amount.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. The court notes that the Stonewall case is still good law in the Fifth Circuit and has been relied on by several district courts within the Eleventh Circuit for the same proposition. See Dairyland Ins. Co. v. Chadwick, 2008 WL 912428 *3 (M.D. Fla. 2008 ); Webb v. Investacorp, Inc., 89 F.3d 252, 257 n. 1 (5th Cir. 1996); Clarendon Am. Ins. Co. v. Miami River Club, Inc., 417 F.Supp.2d 1309, 1316 (S.D. Fla. 2006); Owners Ins. Co.v. Bryant, 2006 WL 50488 *2 (M.D. Ga. 2006).
DONE and ORDERED.