United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs' Motion to Remand (Doc 4).
Defendant has filed a response in opposition to the motion
(Doc. 15). Upon due consideration I respectfully recommend
that the motion be GRANTED.
October 7, 2016, Plaintiffs William and Kathy Bittorf's
residence suffered storm damage (Doc. 2, ¶¶ 3-4).
They had insurance provided by Defendant Lexington Insurance
Company (Id., ¶ 3). Plaintiffs submitted an
itemized repair estimate to Defendant (Doc. 2, ¶ 3; Doc.
1-4, ¶ 6). The estimate, prepared by non-party Insurance
Claim Expert, Inc., concludes that the replacement cost value
of the damage to Plaintiffs' residence is $94, 661.90
plus an additional $749.80 for other structures, making a
total of $95, 411.17 (Doc. 1-4, at 15-16). The estimator
reduced this amount by $1, 000 for the insurance deductible,
resulting in a net of $94, 411.70 (Id., at 15).
accepted Plaintiffs' claim and construed the estimate as
a demand for payment of $94, 411.70 (Id., at 1-2,
¶¶ 3, 6-7). The insurance policy contains a Wind
Hail deductible of two percent of the value of the dwelling
(Doc. 15 at 2). In a pre-suit letter to Plaintiffs, Defendant
explained that it had placed a value of $563, 500 on their
home which results in an $11, 270 deductible (Doc. 12 at 3).
Then, Defendant used what it believes is a more accurate
replacement cost estimate of $33, 798.73, less $3, 160.62 in
depreciation, to arrive at an actual cost of $30, 638.11
(Id.). Defendant subtracted the $11, 270 deductible
from this sum to arrive at $19, 368.11 (Id.).
Defendant paid the $19, 368.11 to Plaintiffs before this case
was filed (Id.). There is no evidence in the record
that Plaintiffs have ever disputed Defendant's pre-suit
calculation of the deductible.
filed this lawsuit in state court, alleging that Defendant
has breached the contract of insurance by refusing to pay
their loss (Doc. 2, ¶¶ 5-6). The complaint seeks
unspecified damages in excess of $15, 000 together with
attorney's fees and costs pursuant to Fla. Stat. §
627.428 (Id.). Defendant invoked the Court's
diversity jurisdiction to remove the case to this Court (Doc.
1, ¶¶ 4-5). Plaintiffs seek remand on the ground
that the actual amount in controversy is $64, 023.79
calculated as follows:
(Doc. 4 at 1). Lest there be any doubt, in response to my
Order,  the
parties have confirmed that the deductible is $11, 270 (Docs.
has filed two declarations of Kathleen Spinella, Assistant
Vice President of Personal Lines and Property Claims for AIG
Claims, Inc. (Doc. 1-4; Doc. 5). Spinella represents that she
is authorized to make statements on behalf of Defendant (Doc.
1-4, ¶ 3; Doc. 5, ¶ 3). In her first declaration,
Spinella states that the deductible is $2, 500 (Doc.1-4 at 2,
¶ 7). No. explanation of where this figure came from has
been provided. In her second declaration, Spinella omits any
reference to the deductible, but says: “Plaintiff
claims a reasonable attorney's fee under Florida Statutes
§627.428, which based on my experience will easily
exceed $10, 000.00.” (Doc. 5-1, ¶ 9).
as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction may be
removed by the defendant or the defendants to the district
court of the United States for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a).
establish the Court's original diversity jurisdiction,
Defendant must show that the parties are of diverse
citizenship and “the matter in controversy exceeds the
sum or value of $75, 000, exclusive of interest and
costs.” 28 U.S.C. § 1332(a). The Court only has
diversity jurisdiction when there is complete diversity
between the plaintiffs and defendants and the amount in
controversy requirement is satisfied. See Owen Equip. and
Recreation Co. v. Kroger, 437 U.S. 365 (1978). Here,
there is no dispute that the parties are citizens of
different states. Plaintiffs tax records show that they have
designated their residence in Volusia County, Florida as
their homestead (Docs. 16-1, 16-2), and Defendant states that
it is a Delaware corporation with its principal place of
business in Boston, Massachusetts (Doc. 1, ¶ 5).
sole issue is whether this case meets the $75, 000 amount in
controversy requirement in 28 U.S.C. § 1332(a). “A
court's analysis of 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). As the party
that removed the case, it is Defendant's burden to show
by a preponderance of the evidence that the amount in
controversy exceeds $75, 000. Kirkland v. Midland Mtg.
Co., 243 F.3d 1277, 1281 n. 5 (11th Cir. 2001);
Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353,
1357 (11th Cir. 1996), overruled on other grounds by
Cohen v. Office Depot, 204 F.3d 1069 (11th Cir. 2000).
Court begins by looking at Plaintiffs' complaint to see
whether the averments demonstrate that the case could have
been brought here. Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994). Because Plaintiffs have not
alleged a specific amount of damages in their complaint, the
Court may look to the notice of removal. Wright v.
Continental Casualty Co., 456 F.Supp. 1075, 1077 (M.D.
Fla. 1978) (citing Davenport v. Procter & Gamble Mfg.
Co., 241 F.2d 511, 514 (2d Cir. 1957)). The Court can
also review the record for additional evidence or require the
parties to submit evidence concerning the amount in
controversy when the case was removed. Williams v. Best
Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
And, the Court may “employ[ ] its judicial experience