United States District Court, M.D. Florida, Fort Myers Division
KENNETH A BERDICK MD and KENNETH A BERDICK MD, P.A. Plaintiffs,
KINSALE INSURANCE COMPANY, GEORGE SHALHUB and SABA SHALHUB, Defendants.
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Kinsale Insurance
Company's Response to Order to Show Cause and Motion for
Jurisdictional Discovery (Doc. 20), and Plaintiffs
Kenneth Berdick, M.D., and Kenneth Berdick M.D., P.A.'s
(collectively “Berdicks”) Reply to that Response
(Doc. 25). This matter is ripe for review.
a declaratory judgment action stemming from a refusal to
defend in a medical malpractice suit. (Doc. 2).
Kinsale issued a medical claims insurance policy to Kenneth
Berdick, M.D., with Kenneth Berdick, M.D., P.A. as an
additional insured. (Doc. 2). Kinsale then refused
to defend the Berdicks in a malpractice suit filed by George
and Saba Shalhub. (Doc. 2). The Berdicks prevailed
and brought this declaratory judgment suit against Kinsale in
state court. (Doc. 2). Kinsale removed the action
claiming diversity jurisdiction. (Doc. 1).
Thereafter, the Court issued a show cause order expressing
its concern regarding the amount in controversy. (Doc.
and the Berdicks responded and took conflicting positions.
(Docs. 20; 25). Kinsale argues that the
amount in controversy is satisfied because the potential to
recover attorney's fees, both past and future, exceeds
$75, 000. (Doc. 20). To support that claim, Kinsale
submitted an affidavit estimating total attorney's fees
in this case at $60, 000, and an affidavit of partial fees
and costs totaling $30, 335.02 from the medical malpractice
action. (Docs. 20 at 5; 20-1;
20-2). The Berdicks argue for remand because future
attorney's fees in this suit have no bearing on the
amount in controversy. (Doc. 25).
start, the Court must determine whether future attorney's
fees matter in an amount in controversy analysis. Generally
the amount in controversy “requirement focuses on how
much is in controversy at the time of removal, not
later.” Pretka v. Kolter City Plaza II, Inc.,
608 F.3d 744, 751 (11th Cir. 2010). Even so, district courts
in this circuit split on “whether to include the
projected amount of attorney's fees or only
attorney's fees as of the time of removal.”
Miller Chiropractic & Med. Centers, Inc. v.
Progressive Select Ins. Co., 8:16-CV-3034-T-33MAP, 2016
WL 6518782, at *1 (M.D. Fla. Nov. 3, 2016) (identifying
courts that include estimated attorney's fees through
trial or limit attorney's fees to those that accrued up
to the time of removal). This Court falls in the latter camp
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 and the court cannot
rely on post-removal events in examining subject matter
jurisdiction.” Waltemyer v. N.W. Mut. Life Ins.
Co., 206CV597FTM29DNF, 2007 WL 419663, at *2 (M.D. Fla.
Feb. 2, 2007). Therefore, it will not rely on Kinsale's
affidavit estimating post-removal attorney's fees to
determine the amount in controversy.
end, the amount in controversy is limited to attorney's
fees from the medical malpractice case and from the
pre-removal period. In this context, the Court finds that
Kinsale has not met its burden to prove the amount in
controversy. See Roe v. Michelin N.A.,
Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (holding that
a removing defendant has the burden to prove the amount in
controversy by a preponderance of the evidence). The Court
also denies Kinsale's request for jurisdictional
discovery. The case will be remanded to state court.
it is now
1. Defendant Kinsale Insurance Company's Motion for
Jurisdictional Discovery (Doc. 20) is
2. The Clerk of Court is directed to
REMAND this case to the Circuit Court of
the Twentieth Judicial Circuit in and for Lee County,
Florida, and to transmit a certified copy of this Order to
the Clerk of that Court.
3. The Clerk is further directed to
TERMINATE all pending motions, deadlines,
and close this case.
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