United States District Court, M.D. Florida, Jacksonville Division
issue of whether an insurance bad faith claim, joined by
amendment to the underlying coverage action, may be removed
more than a year after the original action began has divided
my colleagues, and the Eleventh Circuit has not weighed in. I
must now take a side. The case is before the Court on
Plaintiff Jennifer Ann Hawkinson's Motion to Remand (Doc.
6), to which Defendant State Farm Mutual Automobile Insurance
Company filed a response (Doc. 7).
April 24, 2012, nineteen year old Hawkinson was a passenger
in a car when it was hit by Brian Peters, an uninsured
motorist driving under the influence. (Doc. 2 ¶¶
5-6). As a result of the accident, Hawkinson suffered severe
and permanent injuries. (Id. ¶ 8).
claimed coverage under two State Farm automobile insurance
policies: her own policy provided for $25, 000 of uninsured
motorist coverage benefits, and her parents' policy
provided stackable uninsured motorist coverage limits of
$250, 000 per person and $500, 000 per
accident.(Doc. 6 at 2). After State Farm denied her
claim for uninsured motorist coverage under her parents'
policy, on November 19, 2013, Hawkinson filed a two count
Complaint against Peters, a Florida citizen, and State Farm
in the Fourth Judicial Circuit Court, in and for Duval
County, Florida, alleging negligence against Peters (Count I)
and an uninsured motorist coverage claim under her
parents' policy against State Farm (Count II). On
December 11, 2013, she served a Civil Remedy Notice, which
notified State Farm that by denying her claim, it was not
acting fairly and honestly toward its insured. (Doc. 6-1).
Once State Farm failed to cure the notice in the sixty-day
window, the prerequisite for Hawkinson's bad faith claim
was established. (Doc. 6 at 3).
a bench trial on February 4, 2016, the state court found
Hawkinson was an insured under her parents' policy. (Doc.
6-2). Further, on April 22, 2016, the court granted
Hawkinson's amended motion for leave to file an amended
complaint, which included a claim for punitive damages
against Peters and a claim of bad faith against State Farm
under Florida Statute § 624.155. The AC was filed in state
court on April 25, 2016. (Doc. 2). State Farm unsuccessfully
moved to dismiss the bad faith claim, which was abated
pursuant to a court order dated August 8, 2016. (Doc. 6-4).
November 3, 2016, Hawkinson and State Farm signed a
Stipulation for Entry of Final Judgment and Temporary Stay of
Execution, granting Hawkinson compensatory damages, final
judgment on her uninsured motorist claim against State Farm,
and attorneys' fees and costs. (Doc. 6-5). The court
entered Final Judgment on Hawkinson's uninsured motorist
claim (Count II) November 18, 2016, thus resolving all
matters related to Count II. (Doc. 6-6). State Farm appealed
the Final Judgment to the First District Court of Appeal, and
on March 8, 2018, that court affirmed coverage, granted
Hawkinson attorneys' fees, and remanded that issue for
resolution regarding the amount.(Doc. 6-7). Hawkinson filed a
motion to lift abatement of the bad faith claim in state
court on March 9, 2018. (Doc. 7-2 at 2). On April 5, 2018,
State Farm removed the bad faith claim (Count III), invoking
this Court's diversity jurisdiction under 28 U.S.C.
§ 1332. (Doc. 1).
filed a motion to remand on April 30, 2018, arguing that
removal is untimely, State Farm waived any right to remove,
and piecemeal removal is impermissible. (Doc. 6). State Farm
opposes the motion (Doc. 7), which is ripe for review.
is governed by 28 U.S.C. § 1441, which provides that
“[e]xcept 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 . . . 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. at § 1441(a). As federal
district courts are courts of limited jurisdiction, see
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61
(11th Cir. 2000), a party seeking to invoke federal
jurisdiction must demonstrate that the underlying claim is
based upon either diversity jurisdiction, see 28
U.S.C. § 1332, or the existence of a federal question,
see 28 U.S.C. § 1331.
the removal statute, the notice of removal must be filed
“within 30 days after the receipt by the defendant . .
. of a copy of the initial pleading setting forth the claim
for relief upon which such action or proceeding is based . .
. .” 28 U.S.C. § 1446(b)(1). However, “if
the case stated by the initial pleading is not removable,
” then a notice of removal may be filed within thirty
days of the defendant's receipt “of a copy of an
amended pleading, motion, order or other paper from which it
may first be ascertained that the case is one which is or has
become removable.” Id. § 1446(b)(3).
Where this latter method of removal is employed in a
diversity case, the case may not be removed “more than
1 year after commencement of the action, ” unless the
plaintiff acted in bad faith to prevent removal. Id.
plaintiff may seek remand of a removed action based on two
grounds: “(1) lack of subject matter jurisdiction; or
(2) procedural defect in the removal of the case.”
Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040,
1043-44 (11th Cir. 2001); see 28 U.S.C. §
1447(c). Due to “significant federalism concerns
arising in the context of federal removal jurisdiction,
” removal requirements and limitations are
“strictly interpreted and enforced.”
Russell, 264 F.3d at 1049. “[A]mbiguities are
generally construed against removal, ” and
“uncertainties are resolved in favor of remand.”
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994) (noting that the “[d]efendant's right to
remove and [the] plaintiff's right to choose his forum
are not on equal footing”).
argues that the action giving rise to the bad faith claim was
initially filed in state court on November 19, 2013; State
Farm was served on November 27, 2013. (Doc. 6 at 8). As a
result, she contends that State Farm had until November 27,
2014-one year after the commencement of the case-to file its
notice of removal.
Farm contends that the “separate and independent action
for statutory bad faith” commenced on the date it
accrued (March 8, 2018), when the judgment in the underlying
uninsured motorist action became final (Doc. 1; Doc. 7 at
13), as opposed to the date the original complaint (November
19, 2013) or AC alleging the bad faith claim (April 25, 2016)
was filed. Using March 8, 2018 as the operative date ...