A federal district court in Florida has ruled that the 30-day period for an insurer to remove a coverage action began when the insureds served the insurer with their discovery responses because they contained enough information for the insurer to ascertain that the amount in controversy exceeded the jurisdictional threshold.
The Case
Zabdy and Derwin Westerburger sued their homeowners' insurer, GeoVera Specialty Insurance Company, in a Florida state court, seeking to recover for damage to their home caused by Hurricane Irma.
In their complaint, the Westerburgers did not specify an amount in controversy but asserted that the amount in controversy exceeded $15,000 exclusive of interest, costs, and attorneys' fees.
Process was transmitted to Florida's chief financial officer on August 2, 2018 and forwarded to GeoVera's agent for service of process on August 6, 2018.
On April 2, 2019, GeoVera filed a notice of removal asserting that removal of the Westerburgers' action to federal court was timely because GeoVera removed the case within 30 days of March 6, 2019, the date of the Westerburgers' depositions. Based on exhibits from the Westerburgers' depositions, GeoVera asserted, its counsel learned for the first time that the Westerburgers were seeking approximately $90,125.36 in damages, more than the jurisdictional threshold of $75,000.
The Westerburgers moved to remand to state court, asserting that the removal was untimely pursuant to 28 U.S.C. § 1446(b)(3) because GeoVera knew or should have known prior to 30 days before the date of the removal that the amount in controversy exceeded $75,000.
The District Court's Decision
The district court granted the Westerburgers' motion to remand.
In its decision, the district court explained that, at the very latest, the 30-day period to remove began on February 4, 2019, when the Westerburgers served GeoVera with the Westerburgers' discovery responses.
According to the district court, the composite exhibits from the Westerburgers' depositions provided counsel for GeoVera with enough information to ascertain for the first time that the Westerburgers were seeking approximately $90,125.36 in damages and, therefore, that the amount in controversy exceeded the jurisdictional threshold.
The district court pointed out that the claimed amount in damages was several thousand dollars more than the original estimate given to GeoVera of $69,300.34 in claimed damages, and that the amount in controversy then clearly exceeded $75,000. For example, the estimate for the roof increased from $28,372.89 to $35,153.
The district court said that a defendant “should not be allowed to delay removing when [the defendant] knows the facts necessary for removal, as the purpose of the statute is to extend the time limit only when a defendant cannot ascertain removability.”
Accordingly, the district court concluded, the 30-day period began no later than February 4, 2019, rendering GeoVera's April 2, 2019 removal untimely.
The case is Westerburger v. GeoVera Specialty Ins. Co., No. 19-60870-CIV-DIMITROULEAS (S.D. Fla. May 23, 2019). Attorneys involved include: For ZABDY WESTERBURGER, DERWIN WESTERBURGER, Plaintiffs: Jeffrey Warren Frazer, Joseph William Ligman, LEAD ATTORNEYS, Ligman Martin P.L., Miami, FL; Mikael Laguna, LEAD ATTORNEY, J.P. Gonzalez-Sirgo, P.A., Coral Gables, FL. For Geovera Specialty Insurance Company, Defendant: Patrick James Carleton, LEAD ATTORNEY, Groelle, Salmon, P.A., West Palm Beach, FL; Daniel Martin McNalis, Groelle & Salmon, West Palm Beach, FL.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].