United States District Court, D. Kansas
SYMEON J. ROGERS, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
complaint, which invokes the Court's diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a), plaintiff
seeks benefits from his insurer. The matter presently comes
before the Court on defendant's motion to dismiss for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(h)(3) (Doc. # 25). The Court denies the
diversity jurisdiction may be invoked only when “the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.” See 28
U.S.C. § 1332(a). Defendant argues that the Court lacks
diversity jurisdiction because the amount in controversy in
the present case does not exceed that jurisdictional
threshold. This Court has previously set forth the relevant
standard for consideration of such an argument:
For purposes of determining the amount in controversy, the
amount claimed by the plaintiff controls if the claim is
apparently made in good faith. See St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288,
(1938); Adams v. Reliance Std. Life Ins. Co., 225
F.3d 1179, 1183 (10th Cir. 2000). When federal subject matter
jurisdiction is challenged based on the amount-
in-controversy requirement, “[i]t must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.” See
Adams, 225 F.3d at 1183. The burden is on the party
asserting jurisdiction to show it is not legally certain that
the claim is less than the jurisdictional amount. See
Id. “There is a strong presumption favoring the
amount alleged by the plaintiff.” See
Woodmen of the World Life Ins. Soc'y v.
Manganaro, 342 F.3d 1213, 1216 (10th Cir. 2003).
Consequently, where the plaintiff has alleged that the
amount-in-controversy requirement is satisfied, dismissal is
generally warranted only where (1) a contract limits the
possible recovery, (2) the law limits the amount recoverable,
or (3) the plaintiff commits an obvious abuse of federal
court jurisdiction. See Id. at 1216-17.
See Alpine Atlantic Asset Mgmt. AG v. Comstock, 552
F.Supp.2d 1268, 1273-73 (D. Kan. 2008) (Lungstrum, J.).
complaint, plaintiff alleges that he suffered damages in an
automobile accident with a negligent driver who was
underinsured; that he received $25, 000 in benefits from the
other driver's insurer; that he is entitled to receive
the $100, 000 limit for underinsured motorist (UIM) benefits
under the policy issued to him by defendant; that he is also
entitled to receive certain PIP benefits under the policy;
and that he is entitled to recover his attorney fees pursuant
to Kansas statute. Plaintiff alleges that his damages exceed
$75, 000 (and that his future medical costs will exceed $100,
000). Those allegations are sufficient to create a
presumption under Tenth Circuit law that the Court may
exercise its diversity jurisdiction in this case.
attempt to overcome that presumption fails on a number of
levels. First, defendant argues that plaintiff's recovery
under the insurance policy at issue is limited to $75, 000,
the difference between the $100, 000 policy limit for UIM
benefits and the $25, 000 plaintiff received from the other
driver's insurer. Plaintiff has alleged entitlement to
the entire $100, 000 limit, however, and defendant has not
provided the Court with the policy or any other evidence in
support of its motion. Thus, the Court has no basis to
consider defendant's argument that the policy limit is
subject to a credit for the $25, 000.
plaintiff has also claimed PIP benefits under the policy,
separate from the UIM benefits. Defendant appears to argue
that it is entitled to credit for PIP benefits provided to
plaintiff, which would reduce the UIM benefits further.
Again, however, there is no basis on which the Court may
accept this interpretation of the policy. Moreover, contrary
to defendant's argument, plaintiff has not
alleged that he already received PIP benefits from defendant;
rather, he plainly alleges that he is entitled to PIP
benefits in addition to UIM benefits. There is no
basis for the Court to rule at this time that plaintiff may
not recover separate PIP benefits as a matter of law.
defendant is misguided in arguing that plaintiff's
settlement demand of exactly $75, 000 is probative. In each
of the cases cited by defendant, a plaintiff's settlement
demand in excess of the jurisdictional amount was
probative in rejecting the plaintiff's argument against
diversity jurisdiction in a case removed from state court.
See McPhail v. Deere & Co., 529 F.3d 947, 956
(10th Cir. 2008); Valdez v. Byers, 2009 WL 1440090,
at *1-2 (D. Colo. May 20, 2009). In this case, the fact that
plaintiff was willing to compromise his claim for $75, 000
actually provides evidence that his claim exceeds that
and finally, plaintiff has also sought an award of statutory
attorney fees. Defendant argues that litigation costs may not
be considered, in light of the jurisdiction statute's
language excluding interest and costs. See 28 U.S.C.
§ 1332(a). In the only case cited by defendant, however,
the Sixth Circuit did not rule that attorney fees
may not be considered in determining the amount in
controversy. See Freeland v. Liberty Mutual Fire Ins.
Co., 632 F.3d 250 (6th Cir. 2011). In addition, this
Court applies the law of the Tenth Circuit, and the rule in
this circuit (as this Court has previously recognized) is
that a claim for statutory attorney fees should be included
in determining the amount in controversy for purposes of
diversity jurisdiction. See In re Syngenta AG Mir 162
Corn Litig., 2016 WL 5481997, at *5 (D. Kan. Sept. 29,
2016) (Lungstrum, J.) (citing Woodmen, 342 F.3d at
1218). Plaintiff seeks an award of statutory attorney fees in
this case. Therefore, even if plaintiff's benefits were
limited by the policy to $75, 000 (an issue on which the
Court expresses no opinion), the amount in controversy would
nevertheless exceed that amount.
seeks more than $75, 000 in damages in this case, and the
Court cannot conclude as a matter of law that he cannot
recover the requisite amount. Accordingly, the Court denies
THEREFORE ORDERED BY THE COURT THAT defendant's motion to
dismiss for lack of subject matter jurisdiction (Doc. # 25)
is hereby denied.