United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Plaintiff's Motion to
Remand (Doc. 14), filed November 11, 2016. On November 23,
2016, Defendant responded in opposition. (Doc. 17). Upon
consideration, Plaintiff's Motion to Remand will be
18, 2012, Plaintiff, Irene Washington
(“Washington”), initiated this lawsuit in state
court by filing a two-count Complaint against Defendant,
Government Employees Insurance Company (“GEICO”).
In her Complaint, Washington alleged that she suffered
injuries when an underinsured motorist negligently struck a
vehicle being driven by her husband and in which she was a
passenger. Washington therefore sought to recover
uninsured/underinsured motorist (“UM”) coverage
under her husband's insurance policy with GEICO.
Washington later amended her Complaint to include a
first-party bad faith claim against GEICO. After Washington
filed her Amended Complaint, the state court abated
Washington's bad faith claim pending the result of the
underlying UM coverage dispute.
action ultimately proceeded to trial and resulted in a
verdict in favor of Washington in the amount of $360, 000. On
September 16, 2016, the state court entered judgment in favor
of Washington in the amount of $20, 000 (the maximum amount
of UM benefits recoverable under GEICO's policy) and
lifted the abatement of Washington's bad faith claim. On
October 12, 2016, GEICO removed the case to this Court based
on diversity jurisdiction. Washington now moves to remand
back to state court.
moves to remand on the ground that GEICO's removal of
this case was untimely. Specifically, Washington contends
that GEICO's right of removal expired long ago pursuant
to 28 U.S.C. § 1446(c)(1)'s one-year bar.
defendant is authorized to remove a civil action from state
court to federal court where the controversy lies within the
federal court's original jurisdiction. 28 U.S.C. §
1441(a). With respect to timing, a defendant who wishes to
remove a case to federal court must do so within thirty days
after receiving the initial pleading, id. §
1446(b)(1), or, if the case was not initially removable,
within thirty days after receiving “an amended
pleading, motion, order, or other paper” from which it
can be deduced that the case has become removable,
id. § 1446(b)(3). However, where removal is
predicated on diversity jurisdiction, as is the case here,
the right of removal expires “1 year after commencement
of the action, unless the district court finds that the
plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.” Id.
timely challenged by a plaintiff, “[t]he burden rests
with the removing [defendant] to show that it followed the
proper removal procedures.” Lazo v. U.S. Airways,
Inc., No. 08-80391-CIV, 2008 WL 3926430, at *1 (S.D.
Fla. Aug. 26, 2008). Because removal from state court
constitutes an infringement upon state sovereignty, the
procedural requirements for removal must be strictly
construed, and all doubts about the propriety of removal must
be resolved in favor of remand. Russell Corp. v. Am. Home
Assurance Co., 264 F.3d 1040, 1049-50 (11th Cir. 2001).
argument in support of removal and against Washington's
position that removal was untimely is that Washington's
bad faith claim was not “commenced” within the
meaning of § 1446(c)(1) until the state court lifted the
abatement of that claim. GEICO maintains that, according to
Florida law, Washington's bad faith claim is a separate
and distinct claim from her UM claim and did not accrue until
the state court jury awarded an excess verdict. See
Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d
1289, 1291 (Fla. 1991). Since the state court lifted its
abatement of the bad faith claim on September 16, 2016, GEICO
concludes that the claim commenced on that date and that
GEICO's October 12, 2016 removal was therefore timely.
rightly points out that the judges in Florida's Middle
District have reached conflicting conclusions on how to treat
bad faith claims which were either abated in state court
until the resolution of the underlying UM claim or were
brought in the same lawsuit through an amendment of the
initial complaint after the jury's excess verdict. Some
view the post-verdict accrual of a bad faith claim as the
commencement of a new civil action, thus “reset[ting]
the removal clock” as to that claim. Johnson v.
State Farm Mut. Auto. Ins. Co., No.
6:15-cv-1942-Orl-31TBS, 2016 WL 277768, at *2 (M.D. Fla. Jan.
22, 2016) (Presnell, J.); see also, e.g., Thorne
v. State Farm Mut. Auto. Ins. Co., No.
8:14-CV-827-T-17AEP, 2015 WL 809530, at *6 (M.D. Fla. Feb.
25, 2015) (Kovachevich, J.); Lahey v. State Farm Mut.
Auto. Ins. Co., No. 8:06-CV-1949-T27-TBM, 2007 WL
2029334, at *2 (M.D. Fla. July 2007) (Whittemore, J.). Other
judges, however, consider the post-verdict accrual of a bad
faith claim to result in the commencement of a new
claim-rather than a new civil action-which does not reset the
removal clock. See, e.g., Baroso v. Allstate
Prop. & Cas. Ins. Co., 958 F.Supp.2d 1344, 1346-47
(M.D. Fla. 2013) (Dalton, J.); Daggett v. Am. Sec. Ins.
Co., No. 2:08-cv-46-FtM-29DNF, 2008 WL 1776576, at *3
(M.D. Fla. Apr. 17, 2008) (Steele, J.).
undersigned sides with those judges who find that the
post-verdict accrual of a bad faith claim does not reset the
removal clock. When interpreting the meaning of a statute,
the Court must first look to the language of the statute
itself. Fed. Election Comm'n v. Reform Party of the
United States, 479 F.3d 1302, 1307 (11th Cir. 2007) (per
curiam). “If the statute's meaning is plain and
unambiguous, there is no need for further inquiry.”
United States v. Fisher, 289 F.3d 1329, 1337-38
(11th Cir. 2002). Here, the removal statute at issue
provides, in pertinent part, that the right of removal
expires “1 year after commencement of the
action.” 28 U.S.C. § 1446(c)(1). In writing the
statute, Congress notably chose the word “action”
in delineating when a defendant's right of removal
expires. “Action” is a well-known term of art
which means “[a] civil or criminal judicial
proceeding”; in other words, a lawsuit.
Action, Black's Law Dictionary (10th ed. 2014).
Accordingly, by the statute's plain and unambiguous
language, the right of removal expires one year after the
commencement of a lawsuit.
argument in support of removal essentially asks the Court to
read into the statute that which is not there. GEICO is
certainly correct that a bad faith claim is a separate and
distinct cause of action under Florida law and that a
plaintiff could conceivably file a new action (or lawsuit) to
pursue that claim following an excess verdict. See
Blanchard, 575 So.2d at 1291. However, for whatever
reason, Florida also allows a plaintiff to pursue a bad faith
claim within the same lawsuit by filing an amended complaint
following an excess verdict or by stating the bad faith claim
in the initial pleading and holding the claim in abatement
until the jury's verdict establishes the elements
necessary to state the claim. See Fridman v. Safeco Ins.
Co., 185 So.3d 1214, 1229- 30 (Fla. 2016). In either
case, there is no new “action, ” only a new
“claim, ” and the two words are not synonymous.
See Claim, Black's Law Dictionary (10th ed.
2014) (defining “claim” as “[a] demand for
money, property, or a legal remedy to which one asserts a
right, ” and, “the part of a complaint in a civil
action specifying what relief the plaintiff asks for”);
cf. PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299,
1307 (11th Cir. 2016) (observing the legal distinction
between a “claim” and an “action” in
the context of Rule 41). Had Congress intended to use the
commencement of a claim as the yardstick by which §
1446(c)(1)'s one-year bar is measured, it easily could
have selected a term of art which met that intent, such as
“claim, ” “claim for relief, ” or
“cause of action.” Instead, Congress chose the
word “action, ” and the Court “presume[s]
that Congress said what it meant and meant what it
said.” United States v. Steele, 147 F.3d 1316,
1318 (11th Cir. 1998) (en banc).
is a good reason Congress based § 1446(c)(1)'s
one-year bar on the commencement of an action rather than on
the commencement of a claim, and that ...